SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs

Case [2006] HCA 63

HIGH COURT OF AUSTRALIA

GLEESON CJ
KIRBY, HAYNE, CALLINAN AND HEYDON JJ

SZBEL   APPELLANT

AND

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AND INDIGENOUS
AFFAIRS & ANOR  RESPONDENTS

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs
[2006] HCA 63
15 December 2006
S274/2006

ORDER

1.Appeal allowed with costs.

2.Set aside the orders of the Federal Court of Australia made on 9 February 2006 and, in their place, order:

(a)appeal allowed with costs; and

(b)set aside the orders of the Federal Magistrates Court of Australia made on 23 February 2005 and, in their place, order:

(i)a writ of certiorari issue, directed to the second respondent, to quash the decision of the second respondent made on 27 June 2003; and

(ii)a writ of mandamus issue, directed to the second respondent, requiring the second respondent to determine according to law the application made on 5 June 2001 by the appellant for review of the decision of the delegate of the first respondent to refuse to grant the appellant a protection visa.

On appeal from the Federal Court of Australia

Representation

N J Williams SC with R S Francois for the appellant (instructed by Legal Aid Commission of New South Wales)

S J Gageler SC with S B Lloyd for the first respondent (instructed by Clayton Utz)

Submitting appearance for the second respondent

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs

Immigration – Refugees – Protection visa decision – Procedural fairness – Appellant claimed he feared persecution on basis of his conversion to Christianity if returned to Iran – Delegate of the first respondent refused to grant appellant protection visa because not satisfied of the genuineness of appellant's conversion to Christianity – Review by Refugee Review Tribunal – Appellant invited by Tribunal to give evidence relating to the issues arising in relation to the decision under review – Appellant gave evidence addressed to the delegate's concern regarding the genuineness of his conversion to Christianity – Tribunal affirmed the delegate's decision not to grant a protection visa on the basis that appellant's claims were not credible – Whether Tribunal failed to notify the appellant adequately of the issues to which its reasoning processes were directed – Whether failure of Tribunal to ask the appellant to address issues that it considered might be important amounted to a denial of procedural fairness.

Words and phrases – "issues arising in relation to the decision under review", "procedural fairness".

Migration Act 1958 (Cth), ss 424, 424A, 425.

  1. GLEESON CJ, KIRBY, HAYNE, CALLINAN AND HEYDON JJ.   In 2001 the appellant was employed as a seaman on a ship of the Islamic Republic of Iran Shipping Line.  On 7 April 2001, he jumped ship in Port Kembla and 10 days later he applied for a protection visa[1].  A delegate of the respondent Minister refused[2] to grant the appellant a protection visa.  The appellant sought[3] review of…

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AGLC
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
Case
[2006] HCA 63
Decision Date

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia by an applicant for a protection visa who claimed to fear persecution in Iran due to his conversion to Christianity. The delegate of the Minister for Immigration and Multicultural and Indigenous Affairs had refused the visa, finding the applicant's conversion not to be genuine. The Refugee Review Tribunal affirmed this decision, deeming the applicant's claims not credible. The appeal raised questions about whether the Tribunal had adequately notified the applicant of the issues it considered important and whether its failure to invite the applicant to address these issues constituted a denial of procedural fairness.

The High Court was required to determine two primary legal issues. Firstly, whether the Refugee Review Tribunal failed to adequately notify the appellant of the specific issues that formed the basis of its reasoning process when affirming the delegate's decision. Secondly, whether the Tribunal's failure to invite the appellant to address the matters it considered significant amounted to a denial of procedural fairness, thereby vitiating its decision.

The Court reasoned that the delegate's decision had focused on only one aspect of the appellant's account, namely his return to the ship after going ashore for medical treatment, finding it inconsistent with a genuine fear of persecution. However, the delegate had not addressed other key elements of the appellant's narrative, such as his conversations with friends about his religious beliefs or his confrontation with the ship's captain. The Tribunal, in its reasons, identified three specific aspects of the appellant's claim as implausible, including the basis for the captain's knowledge of his religious interest and the plausibility of the captain's alleged intentions. The Court found that the Tribunal had not adequately alerted the appellant to these specific concerns during its review process, particularly the implausibility of how his religious interest became known to the captain and the crew's alleged perception of him as a criminal. The Court held that procedural fairness required the Tribunal to give the appellant a reasonable opportunity to address the specific grounds upon which it intended to depart from his evidence or find his claims not credible.

The High Court allowed the appeal with costs, setting aside the orders of the Federal Court of Australia. It further ordered that the orders of the Federal Magistrates Court of Australia be set aside and replaced with orders for a writ of certiorari to quash the Tribunal's decision and a writ of mandamus directing the Tribunal to determine the appellant's application according to law.

Orders

Orders of the court

1. Appeal allowed with costs.

2. Set aside the orders of the Federal Court of Australia made on 9 February 2006 and, in their place, order:

(a) appeal allowed with costs; and

(b) set aside the orders of the Federal Magistrates Court of Australia made on 23 February 2005 and, in their place, order:

(i) a writ of certiorari issue, directed to the second respondent, to quash the decision of the second respondent made on 27 June 2003; and

(ii) a writ of mandamus issue, directed to the second respondent, requiring the second respondent to determine according to law the application made on 5 June 2001 by the appellant for review of the decision of the delegate of the first respondent to refuse to grant the appellant a protection visa.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In support of his application to the Tribunal, for review of the delegate's refusal to grant him a protection visa, the appellant supplied a further statutory declaration. Given the basis on which the delegate had refused the appellant's application, it is unsurprising that this second declaration by the appellant was directed wholly to demonstrating the appellant's commitment to Christianity.The Tribunal review – the appellant's oral evidence As noted earlier, the Tribunal member began her interview of the appellant by saying that, on the material that had been supplied, she was not able to be satisfied that the appellant qualified for a protection visa. The appellant then gave evidence on affirmation and called some witnesses to give evidence about his commitment to Christianity. The Tribunal asked the appellant questions about various matters including his meeting in his home town with friends, what had happened when he was called before the captain on board ship, and his going ashore for medical treatment in Port Kembla. In substance, his answers repeated what he had said about those matters in his first statutory declaration, but he amplified those statements in two important respects. First, when asked how the captain had any idea of his interest in Christianity, the appellant said, "[o]ne of the guys on the ship was from my own town." Secondly, when asked about leaving the ship for medical treatment, he said, "I was sent to medical with someone accompanying me and then I was returned to the ship." If accepted, the first of these answers explained how it was that what was said in a conversation over coffee with friends, in a home town hundreds of kilometres from where the appellant's ship had berthed in Iran, came to the attention of the ship's captain. If the second of the answers was accepted, it explained why the appellant had returned to his ship when he was allowed ashore at Port Kembla.The Tribunal's reasons In its reasons, the Tribunal described the appellant's claims as including that he had "jumped ship because the Iranian authorities had come to know of his interest and involvement in the Christian religion and he was in fear of punishment". This claim was not accepted "because the Tribunal considers that this claim is not credible". What were said to be "key aspects" of the appellant's claim lacked credibility. Three separate aspects were identified. First, there was the basis upon which the captain came to believe that the appellant was involved in Christianity. This was said "to be so tenuous as to be implausible". The reasons continued:"The Tribunal considers it implausible that a personal conversation while the [appellant] is in port for ten days would attract the attention or interest of the Hezbollah and would become public knowledge such that a crew member from the same town had knowledge of it."Secondly, the Tribunal dealt with the appellant's description of his confrontation with the captain in the following way:"Further the Tribunal considers it implausible that the Captain of the ship would accuse the [appellant] of apostasy or even involvement in Christianity on the strength of comments from a crew member based on the [appellant's] personal conversations when in port, particularly given that the [appellant] on his own evidence had not spoken of or engaged in Christian activities on board the ship."Thirdly, the Tribunal said that it considered "that the [appellant's] freedom of movement when the ship was in dock belies the [appellant's] claim that the crew 'considered [him] a criminal' ... and the claim as stated in the hearing that the Captain was intending to hand him to the authorities when the ship returned to Iran". The Tribunal expressed the view that "if the Captain was intending to hand the [appellant] over to the authorities in Iran and had informed the [appellant] of his intention then more stringent measures would have been set in place in respect to the [appellant's] movement when the ship was in dock". Presumably, the Tribunal had in mind steps of the kind to which the appellant had referred when he spoke of the crew not understanding "why the captain did not lock me up on the ship".

Decision

Reasons for decision

GLEESON CJ CJ, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
The third element of present importance in the appellant's account of events concerned his being allowed off the ship on 6 April 2001 to visit a doctor in Port Kembla. Of this the appellant said:"The constant psychological and mental harassment on board the ship had made me very sick. I was in constant pain. I sought permission to get medical attention, and I believe that the Captain only allowed this out of fear that I may die on board of the ship and therefore become his responsibility. I was granted permission to seek medical attention in Australia. I knew that I had to find a way off the ship: I was petrified that I would be dead by the time the ship returned to Iran. The harassment by the crew was getting worse, and I was completely at the mercy of the other crew members who considered me an apostate."The delegate's decision The delegate was not satisfied that the appellant was a person to whom Australia had protection obligations under the Refugees Convention[6]. The delegate concluded that he was not satisfied that the appellant "has a genuine commitment to Christianity". In his reasons, the delegate dealt directly with only one of the three elements of present importance in the appellant's account of events preceding his jumping ship. The delegate noted that the appellant had gone ashore in Port Kembla on 6 April 2001. He said that the appellant's "decision to return to the vessel on 6 April 2001 is not consistent with the actions of a person who feared being seriously mistreated or even killed by crew angered by his alleged interest in Christianity". The delegate made no mention, in his reasons, of the appellant's account of telling friends in his home town of his interest in Christianity or of the appellant's account of being called before the captain to explain this interest.[6]Convention relating to the Status of Refugees done at Geneva on 28 July 1951, [1954] ATS 5, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967, [1973] ATS 37.The Tribunal review – a further statutory declaration In support of his application to the Tribunal, for review of the delegate's refusal to grant him a protection visa, the appellant supplied a further statutory declaration. Given the basis on which the delegate had refused the appellant's application, it is unsurprising that this second declaration by the appellant was directed wholly to demonstrating the appellant's commitment to Christianity.The Tribunal review – the appellant's oral evidence As noted earlier, the Tribunal member began her interview of the appellant by saying that, on the material that had been supplied, she was not able to be satisfied that the appellant qualified for a protection visa. The appellant then gave evidence on affirmation and called some witnesses to give evidence about his commitment to Christianity. The Tribunal asked the appellant questions about various matters including his meeting in his home town with friends, what had happened when he was called before the captain on board ship, and his going ashore for medical treatment in Port Kembla. In substance, his answers repeated what he had said about those matters in his first statutory declaration, but he amplified those statements in two important respects. First, when asked how the captain had any idea of his interest in Christianity, the appellant said, "[o]ne of the guys on the ship was from my own town." Secondly, when asked about leaving the ship for medical treatment, he said, "I was sent to medical with someone accompanying me and then I was returned to the ship."

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, CJ, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

The delegate was not satisfied that the appellant was a person to whom Australia had protection obligations under the Refugees Convention[6]. The delegate concluded that he was not satisfied that the appellant "has a genuine commitment to Christianity". In his reasons, the delegate dealt directly with only one of the three elements of present importance in the appellant's account of events preceding his jumping ship. The delegate noted that the appellant had gone ashore in Port Kembla on 6 April 2001. He said that the appellant's "decision to return to the vessel on 6 April 2001 is not consistent with the actions of a person who feared being seriously mistreated or even killed by crew angered by his alleged interest in Christianity". The delegate made no mention, in his reasons, of the appellant's account of telling friends in his home town of his interest in Christianity or of the appellant's account of being called before the captain to explain this interest.[6]Convention relating to the Status of Refugees done at Geneva on 28 July 1951, [1954] ATS 5, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967, [1973] ATS 37.The Tribunal review – a further statutory declaration In support of his application to the Tribunal, for review of the delegate's refusal to grant him a protection visa, the appellant supplied a further statutory declaration. Given the basis on which the delegate had refused the appellant's application, it is unsurprising that this second declaration by the appellant was directed wholly to demonstrating the appellant's commitment to Christianity.The Tribunal review – the appellant's oral evidence As noted earlier, the Tribunal member began her interview of the appellant by saying that, on the material that had been supplied, she was not able to be satisfied that the appellant qualified for a protection visa. The appellant then gave evidence on affirmation and called some witnesses to give evidence about his commitment to Christianity. The Tribunal asked the appellant questions about various matters including his meeting in his home town with friends, what had happened when he was called before the captain on board ship, and his going ashore for medical treatment in Port Kembla. In substance, his answers repeated what he had said about those matters in his first statutory declaration, but he amplified those statements in two important respects. First, when asked how the captain had any idea of his interest in Christianity, the appellant said, "[o]ne of the guys on the ship was from my own town." Secondly, when asked about leaving the ship for medical treatment, he said, "I was sent to medical with someone accompanying me and then I was returned to the ship." If accepted, the first of these answers explained how it was that what was said in a conversation over coffee with friends, in a home town hundreds of kilometres from where the appellant's ship had berthed in Iran, came to the attention of the ship's captain. If the second of the answers was accepted, it explained why the appellant had returned to his ship when he was allowed ashore at Port Kembla.The Tribunal's reasons