SZBRO v Minister for Immigration

[2005] FMCA 1890

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBRO v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1890

MIGRATION – Review of decision of RRT – whether the Tribunal fell into jurisdictional error through breach of s.424A Migration Act – where the applicant claims that there were several ways in which the Tribunal breached s.424A - where there are differing views on the interpretation of s.424A which purport to bind the lower courts – whether the Tribunal failed to address material claims of the applicant – whether the Tribunal made a material finding in the absence of probative evidence - where the Tribunal member relied upon a personal connection to confirm the veracity of information provided by the applicant – whether or not the decision of the Tribunal was affected by apprehended bias – whether or not the Tribunal ignored information which was found to have been credible, relevant or significant to the applicant’s claims.

Migration Act 1958 (Cth), ss.424A, 424A(3), 420(2)(a)

NAMW v Minister for Immigration [2004] FCAFC 264
SAAP v Minister for Immigration (2005) 215 ALR 162
SZANH v Minister for Immigration [2004] FCA 1280
SZDQL v Minister for Immigration [2005] FCA 769
NAZY v Minister for Immigration [2005] FCA 744
SZCJH v Minister for Immigration [2005] FCA 1660
SZBKB v Minister for Immigration [2005] FCA 1811
SZEKY v Minister for Immigration [2005] FCA 1138
SZBVE v Minister for Immigration [2005] FCA 1325
SZCEF v Minister for Immigration [2005] FCA 1200
Tin v Minister for Immigration [2000] FCA 1109
SZDTE v Minister for Immigration [2005] FMCA 297
NABE v Minister for Immigration (No. 2) [2004] FCAFC 263
NABD of 2002 v Minister for Immigration [2005] HCA 29
SGKB v Minister for Immigration [2003] FCAFC 44
SFGB v Minister for Immigration [2003] FCAFC 231
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
NADH of 2001 v Minister for Immigration [2004] FCAFC 328
Ex parte Durairajasingham (2000) 168 ALR 407
W148/00A v Minister for Immigration (2001) 185 ALR 703
Minister for Immigration v NAOS [2003] FCAFC 142
Minister for Immigration v Jia (2001) 205 CLR 501
VFAB v Minister for Immigration [2003] FCA 872
Applicant A165 of 2003 v Minister for Immigration [2002] FCA 877

Ebner v Official Trustee in Bankruptcy (2002) 205 CLR 337

Bilgin v Minister for Immigration (1997) 149 ALR
Applicant VEAL of 2002 v Minister for Immigration [2005] HCA 72

Applicant: SZBRO

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number: SYG 2200 of 2003

Judgment of: Raphael FM

Hearing date: 22 August 2005

Date of Last Submission: 5 October 2005

Delivered at: Sydney

Delivered on: 23 December 2005

REPRESENTATION

Solicitors for the Applicant: Parish Patience Immigration Lawyers

Counsel for the Respondent: Mr J.A. Potts

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The court declares that the decision of the Refugee Review Tribunal NO241315 made on 2 September 2003 is void and of no effect.

2. The court orders that the application be referred back to the Tribunal differently constituted to be heard and determined according to law.

3. The respondent to pay the applicant’s costs assessed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2200 of 2003

SZBRO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Iran. He arrived in Australia on 26 August 2001. On 8 October 2001 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 12 December 2001 a delegate of the Minister refused to grant a protection visa and on 7 January 2002 the applicant applied for review of that decision. The applicant appeared with a migration agent at a hearing before the Tribunal on 18 July 2003. On 2 September 2003 the Tribunal determined to affirm the decision not to grant a protection visa and handed down that decision on 24 September 2003.

2. The applicant claimed to have a well-founded fear of persecution for the Convention reason of religion. The applicant claimed to be an Evangelical Christian. He had shown an interest in the Christian faith after the death of one his two Armenian classmates. He had questioned the other classmate about Christian beliefs and practices but had been told that these could not be discussed with Muslims. The applicant claimed that in about May 2001 he had been arrested following a conversation with a Muslim classmate about the lack of freedom to go to church and practice Christianity in Iran. He was beaten up in the course of his interrogation and admitted to having the discussion. The applicant signed an undertaking to the effect that he regretted having the conversation and would not talk about Christianity with anyone else. He was then released. Just prior to a planned visit to his brother in Australia the applicant commenced correspondence with Pastor Daniel Shayesceh. He attended the Iranian Evangelical Church the first Sunday he arrived in Australia and commenced a bible studies course. The applicant claimed to have become a dedicated Christian and has attempted to proselytise within his Australia family. The applicant claimed that on a recent visit to Australia by his parents his mother told him that a telephone call had been made to his home by the security officer of the university requiring him to attend. The applicant feared that if he returned to Iran and continued to proselytise and act in accordance with the tenets of his branch of the Christian faith he would be punished and harassed by the security forces.

3. The findings and reasons of the Tribunal commence at CB 168. For the reasons which it gives the Tribunal rejects the applicant’s story of having been detained and assaulted by university security officers after he had been overheard discussing Christianity. The Tribunal accepts that the applicant was expelled from his first university course following a conflict over politics but noted that he was later able to gain admission into another university course and concluded that he did not have a well-founded fear of persecution for a Convention reason arising out of that incident.

4. The Tribunal was therefore left with what was effectively a sur place claim expressed in these terms:

   “Although I do not accept that the applicant was of any adverse interest because of his interest in Christianity while he was still in Iran, I nevertheless accept that the applicant is now a Christian and that he is genuine in his faith and his commitment to his religion. I accept that the applicant is an active Christian and that he would seek to practise his religion if he returned to Iran. I have therefore considered whether the applicant has a well-founded fear of persecution for this reason.”

   The Tribunal then went on to make the under mentioned comments which formed the background of the claims of jurisdictional error made by the applicant:

   “In the past, the independent evidence has suggested that Muslims who convert to Christianity and who proselytise Muslims could be at risk of persecution in Iran. However, there is now strong evidence before the Tribunal suggesting that members of the Assembly of God Church in Tehran, which has a congregation consisting largely of Muslim converts, are able to attend church and engage in evangelical activities without encountering serious harm, either from the government or the community. His is a different picture to that portrayed in a report published by Iranian Christians International earlier this year. It also differs from views expressed in reports such as those written by the US State Department. However, I am of the view that the information provided by the Australia Embassy as a consequence of recent and direct discussion with senior Christian clergy in Tehran is much more reliable that the information (much if it quite dated) of the kind contained in the ICI report. I am also of the view that the US State Department is not a reliable source on the current situation for Iranian Christians in Iran, given that the US does not have diplomatic relations with Iran and is therefore in no position to directly obtain information from Iranian Christian clergy in Iran. The advice given to DFAT by the Church is not in the form of a public statement, but as a result of a number of private discussions with an Australian diplomat. I am of the view that this information is credible, reliable and reflects the actual situation for Muslims who have converted to Christianity.

   I note the applicant’s, most recent statutory declaration. However, I consider the information provided by the applicant is far less reliable than that provided by DFAT. The information provided by the applicant is in vague terms. It is asserted that encouraging others to know more about Christianity would not be done without the person concerned fearing punishment. However, no information is provided which suggests that members of the Church have in fact been seriously harmed because they have been involved in proselytising. On the other hand, the information provided to DFAT indicated that church members have been involved in specific proselytising activities (handing out Bibles in public transport in the lead-up to Christmas last year) without encountering serious harm. The independent evidence indicates that Christians have engaged in proselytising activities without encountering serious harm notwithstanding the disparaging view of such activities expressed in the newspaper article provided b the applicant’s adviser. 

   It appears that the contents of the DFAT reported are now well-known in the Iranian Christian community. The applicant in this case was aware of the reports prior to the hearing. I have been told in other cases that the Assembly of God Church in Tehran – having been made aware of the situation by the Church in Australia – to take this up with the Australian Embassy. This could be done without the Church putting anything in writing. I am satisfied that if this had been done the Australian Embassy would have passed on the information. The fact that no such information has been provided strongly suggests that the leadership of the Assembly of God Church in Tehran accepts that the DFAT reports are correct. In the circumstances, I prefer the DFART reports to the information provided by the applicant in his latest statutory declaration.”

5. The first ground upon which the applicant claims the Tribunal fell into jurisdictional error was through breach of s.424A Migration Act 1958 (Cth) (the “Act”). The applicant relies on the decision of the High Court in SAAP v Minister for Immigration (2005) 215 ALR 162 as authority that the failure to provide in writing particulars of information which the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review constitutes a jurisdictional error. It was alleged that there were several ways in which the Tribunal breached s.424A of the Act and I will deal with each in turn.

DFAT Country Information Report No. 186/02, Assembly of God Church dated 19 June 2002

1. The relevant parts of this report are extracted at CB 166. That report says:

   Our sources said it was unlikely/unusual that a member would be checked by authorities outside the church. There were cases where church members were questioned about their activities, but these queries usually came about through the outside contacts the members had had. There were also suspicions that the church might have been ‘infiltrated’ which might have led to greater knowledge by authorities about members’ activities. However, when members were called in for questioning by authorities, this seemed to be a rather ‘proforma’ affair in which they signed a statement declaring they would not get involved in evangelising again: there was rarely much follow up and jail sentences were no longer given out. The members then proceeded as usual with their activities (which were unapologetically evangelistic in nature).

   Our sources also commented on the situation of Muslim converts to Assembly of God church. Some 80% of the church’s congregation were Muslim converts. Even the pressure on this group had eased considerably since President Khatami took office in 1997. That said, those who had to declare their religion in order to have access to a passport or to do military service could often subsequently face discrimination. Members of the congregation were not allowed to lie about their religion, and telling the truth could and did result in those holding government jobs to be sacked. Conversion from Islam to Christianity still attractive negative attention and that was why many converts chose to go abroad. (DFAT, CIR No. 186/02 19 June 2002 CX65406).

   The applicant argues that this report was relevant because the Tribunal relied upon it to show that the applicant, as an apostate Muslim and proselytising Christian, would be able to return to Iran and practice his religion, including proselytising, without facing a real chance of suffering serious harm. Leaving aside whether the report does naturally lead to that conclusion, the question is whether or not it is a document that is protected by s.424A (3). The applicant says it is not so protected because the report related to an Iranian male applicant, as can be seen by the complete reproduction of the report found at CB 248. The respondent argues that the exception applies to information and the proper enquiry is to ask whether that information is about a particular person or just about a class of persons to which the applicant might belong. The information set out at CB 166 and in these reasons is clearly information about a general class of persons, being Muslim converts to the Assembly of God, and not the one particular Iranian male from an orthodox Armenian Christian family who was the subject of the DFAT report. The purpose of the exception set by s.424A(3) is to exclude information that can be readily obtained by any applicant and to ensure that information cannot be so obtained because it might be personal to an application or another particular person is provided. In NAMW v Minister for Immigration [2004] FCAFC 264, now partly overruled by SAAP v Minister for Immigration (2005) 215 ALR 162, the Full Court discussed the construction of s.424A(3) and the purpose of the procedural requirements imposed by s.424A. The Full Court quotes that Minister’s Second Reading Speech to the Act introducing s.424A and said at [129]:

   When s 424A (and its counterpart in respect of the Migration Review Tribunal, s 359A) was enacted by the Migration Legislation Amendment Act (No 1) 1998 it was clear that the legislature intended to introduce a procedure for both the RRT and the Migration Review Tribunal that was similar to that which applied to decisions by the Minister (or his or her delegate): see the Second Reading Speech, Commonwealth, Parliamentary Debates, House of Representatives, 2 December 1998, 1122 (Phillip Ruddock, Minister for Immigration and Multicultural Affairs) at 1123. Importantly, the Explanatory Memorandum at [117] states:

   "[The Amending Act] also inserts six new sections into the Migration Act. Of these sections 424, 424A, 424B and 424C provide a code of procedure which the [Refugee Review] Tribunal is to follow in conducting its review:
   ...
   new section 424A ensures that an applicant is given particulars of any information that would be the reason or part of the reason for affirming the decision under review, and is asked to comment on that information. The information must be specifically about the applicant or another person and not just about a class of persons of which the applicant or the other person is a member. Paragraphs 424A(3)(b) and (c) provides respectively that information given by the applicant and non-disclosable information are not included in this section;" [Emphasis added]

   In SZANH v Minister for Immigration [2004] FCA 1280 Sackville discussed NAMW and the construction of s.424A(3) and said the following at [49]:

   In MIMIA v NAMW, Merkel and Hely JJ pointed out (at [126]) that one area of controversy has been whether or not s 424A(3)(a) of the Act contains two separate criteria, namely that the information is not specifically about the applicant or another person and is just about a class of persons of which the applicant and the other person is a member, so that each criterion must be satisfied. The alternative construction is that:

   ‘the reference to the class of persons is not another criterion to be met, but, rather, underlines the specificity required in respect of the applicant or another person by precluding any argument that reference to a class can be taken to be a reference to all individuals falling within it’.

   Their Honours held that the alternative construction of s 424A(3)(a) of thehttp:// Act is correct (at [138]).

   I am unable to uphold the applicant’s argument in relation to this information.

DFAT Country Information Report No. 31/03, Christians and Proselytising Muslims in Iran dated 11 February 2003

1. This report is found at CB 258. The report is in the form of a table asking questions of the mission upon allegations made by particular applicants. The questions asked are not about a particular applicant or any particular person but about the situation of members of evangelical Christian movements, in particular, the Assembly of God Church. The important response is the answer:

   “The Assembly of God Church does not believe that there has been any deterioration in the situation for Christians in Iran. He believes the situation can be more complex for converts who publicly state their conversion but this has not resulted in criminal charges for some time.”

   Once again this can be seen to be a response providing general information about a class of persons and not information about a particular person. For the reasons previously given I believe that this information is protected by s.424A (3).

Information that the Australian Embassy source consulted in relation to the situations of Christians in Iran of a senior member of the Assembly of God in Tehran

1. This information was contained in the DFAT report found at CB 256/7 and is as follows:

   “A.2 Our interlocutor is a member of the clergy in the Assemblies of God church in Iran. We consider him to be credible; further, his version of the situation of converts in Iran is borne out by other well-informed interlocutors with whom we have regular contact. We agree your assessment that individuals in Iran are better placed than others to assess the reality of the human rights situation here.

   The Tribunal made use of this information in its findings and reasons at CB 170 when it said:

   “I am of the view that the information provided by the Australian embassy as a consequence of recent and direct discussions with senior Christian clergy in Tehran is much more reliable that the information (much of it quite dated) of the kind contained in the ICI report..

   The advice given to DFAT by the Church is not in the form of a public statement, but as a result of a number of private discussions with an Australian diplomat. I am of the view that this information is credible, reliable and reflects the actual situation for Muslims who have converted to Christianity.”

   The respondents suggested that the information relied upon by the Tribunal from the third DFAT report was information that was not about the applicant or a particular person, being about Christian clergy, a generic and general term, rather than a specific member of the clergy. I do not think that this argument can be borne out when one considers the transcript. It is clear from the discussions that the informant was one person: “a senior member”. The question is whether or not it formed the reason, or part of the reason, for the Tribunal’s decision. In making this decision in this particular case it is necessary to see what use was made of the information by the Tribunal. In doing this I have had the advantage of a transcript annexed to an affidavit of Nigel James Dobbie dated 13 September 2005. Whilst it is not agreed that the transcript constitutes a completely verified document, the respondents have conceded that in their view it is sufficiently clear to identify the thrust of those issues discussed between the RRT and the applicant. The transcript indicates that there was considerable discussion between the Tribunal, the applicant and his advisor concerning this information and the identity of the senior Church figure referred to. The discussion commences at page 16 of the transcript where the advisor complains that the information was provided to an unnamed Australian diplomat. The Tribunal indicates that it knows that name of the diplomat who was the first secretary of the embassy. The advisor then notes that they do not know who provided the actual information for the Church. The debate continues as follows:

   “MA:    We also don’t know who actually provided the   information from the Church.

   TM:      I accept that it was a senior member of the Clergy of the                    Church.

   MA:      Again, we don’t know who that Church was so that we   can contact them.

   TM:      Well the Church here can do that. They haven’t provided   anything to my knowledge.

   MA:      But because they don’t know who that person was so they                 can’t..

   TM:      There can’t be that many senior members of the Clergy at                 that   particular Church in Tehran. There simply can’t be.                   There can’t be dozens of them.

   MA:      I know this for the fact that every single one has been   contacted by the Australian counterparts in Australian   and none of them have actually agreed that they have   provided such information.

   TM:      Well I tell you it may not say that here but I have no doubt                whatsoever that that has happened. I know the diplomat                    concerned, there is no interest in that diplomat or in the                    Department of Foreign Affairs generally going and   making up stories so that information.

   MA:      I am not suggesting that, I am just saying that I think it is                  fair for us to      know what, where this information what the                 source of this information is. It’s also the information is   not the diplomat is an Iranian senior Christian leader in   Iran which we are not really about who that person is.

   TM:      Well that’s all we can say. I don’t know the name of the   person and DFAT certainly will not disclose it as a matter                   of policy.

   MA:       So we don’t really have the opportunity to confirm the   veracity of the information that he has conveyed to the   Australian diplomat to prepare a response to it to start   with. Secondly, I don’t think you can, if the Iranian   Christians in Australia respond, prepare a report in   response to the verbal information that has been   conveyed to an Australia diplomat      is going to carry any   more weight with the Tribunal that the information that   has come from the Australian diplomat.

   TM:      Well then we’d probably, if there was something more   then they’d go back to the Embassy to get them to talk   again, which has happened several times. Not just one   report. There is a whole range of reports.

   MA:      And, well that’s all we can say because even if we, even if                  I sit down with the Church and say let’s talk to the   Iranian counterparts about the situation of the   Evangelical Christians in Iran and make a response to                      the Immigration Department to the Refugee Review   Tribunal they are very much discouraged by the fact that                   its not going to carry      because obviously the source of    information on which the Tribunal or the DFAT that the   Department relies on is an Iranian senior Christian living                in Iraq which we are not really aware who that person   is.

   TM:      Well that’s all we can say. I don’t know the name of the   person and DFAT certainly will not disclose as a matter   of policy, the people that €.

   MA:      So we don’t really have the opportunity to confirm the   veracity of the information that he has conveyed to the   Australian diplomat to prepare a response with, to start   with. Secondly, I don’t think even if the Iranian precedent                   in Australia will respond or prepare a report in response   to the verbal information that has been conveyed to an   Australian diplomat is going to carry any more weight   with the Tribunal than the information that has come   from the Australian diplomat so there is not reason…

   TM:      Well, but then we probably, if there was something more                    then they would go back to the embassy to get them to   talk, again, which has happened several times, not just   one reports, there is a whole range of reports.

   MA:      Well that’s all we can say, because, even if I sit down   with the Church and say “let’s talk the Iranian “ about   the situation of the Evangelical Christians in Iran and   make a response to the Immigration Department or the                     Refugee Review Tribunal, they are very much   discouraged by the fact that it is not going to carry, well,                 because obviously the source of information on which the                 tribunal or the DFAT cable that the Department relies         on would carry more weight than one when the    information comes from the Iranian Church where it’s   viewed as an interested party in supporting their   members for their refugee application.

   TM:      Well, clearly, I mean that, it depends. Not saying that   the church he will   be providing something, saying    that the church here will have an opportunity to get the   church in Iran to actually provide something denying                        that they have provided that information or saying that                    it is incorrect, now if the church in Iran wanted to do   that, then I presume they could, but they haven’t.

   MA:      But still “ in a disadvantageous position because again                    the authority      on which the Tribunal relies weighs more   heavily in favour of…

   TM:      Look, if the church here…

   MA:      We understand that, please, I’m not trying to be…

   TM:      No, no, I know. But I’ve got a whole range of information                  that I have to consider. This information is relevant, it    is recent, it’s certainly more reliable than anything that “                   comes out of the U.S State Department in relation to Iran                and religion and it’s much more objective and reliable   than Iranian Christians International. Alright?

   MA:      Hmm.

   TM:If it is denied that those reports are correct, then I’m not          dating that that is a “  useful for the church here to say the report is incorrect, it could be useful of course for the    church here to obtain something to get the church in Iran     to write to the Tribunal and say, “now those reports are   incorrect, we’ve never said that, nobody from this    congregation has ever said that to an Australian     diplomat, this is in fact, there are the facts.” If the church is in contact with the church in Iran then I presume they could do that, nothing of that nature has been produced from the church in Iran saying that the information is inaccurate.

   MA:      Maybe it’s not proper for me to create the response that is                going to be forthcoming but again it’s going to be the   same issue that the information that the Tribunal has, has                   come from an authority which is more reliable as far as                    the Tribunal, I mean, I’m happy to…

   TM:Look I’m not asking you to do anything further. I’ve got this information, it’s up to you whether you do that. But,      so that this, sine this had been raised with a number of      people over the last 12 months, as reports have progressively come through, the information is considered to be reliable because it has come from the      church in Iran, not because it’s come from DFAT, it’s because it has come from the church in Iran, then I consider it reliable. Now I also consider it reliable because I know exactly who the DFAT, in this case, I do know, I know personally the diplomat, and I have discussed with her how she went about getting this information. That’s completely by the by. I just, I do happen to know he, that’s all. But the ultimate source of information. I don’t know who the actual individual is, bit I believe the information did come from the church and it came from a senior official of the church as the report states. Now, if he church it Iran says, wants to provide something denying that that’s true or saying that the situation has change or saying that they never said that, that nobody from here would have said anything like that, then fine, they can do that, and then, what we might do, if I got such a report from them, will be to go back to DFAT and say, do you want to comment on this, do you have any further information about this. But that’s a combination of it coming from the church in Iran, we have no reason to believe that it did not, we have every reason to believe that the diplomat spoke to certain senior church officials privately. Now this is not about church officials making some public statement to look good, a private conversation. Certainly nothing to suggest, I think that would be farfetched to suggest that the senior church official“.”

   It seems to me clear from this discourse that the identity of the informant and his or her position in the church was a matter of very considerable importance to the applicant and was something upon which the Tribunal relied heavily. The applicant responded to the suggestion that he obtain some further evidence by providing a statutory declaration found at CB 150-151. That declaration relates the fact of emails between the advisor and a person in Iran who had contact with a Deaconess of the Church. It was referred to at CB 170 in the following form by the Tribunal:

   “I note the applicant’s most recent statutory declaration. However, I consider the information provided by the applicant is far less reliable than that provided by DFAT. The information provided by the applicant is in vague terms.”

1. In SZDQL v Minister for Immigration [2005] FCA 769 at 55 Sackville J referred to five propositions which appeared relevant to the enquiry. At [5] his Honour said:

   “If the information, considered in the context of the RRT’s reasoning process and the aggregate of its findings, is ‘relatively minor and unimportant in the scheme of things’ (VAF, at [4]), it is not likely to be a part of the reason for the decision. A useful test is whether the information was:

   ‘so integral to the reasoning process rejecting the [applicant’s]     claim as to require as a matter of fairness that the [applicant] be    told that information (cf s 424A(1)(a)) and why it was relevant to the review (cf s 424A(1)(b))’: VAF, at [41]; VUAX, at [53]-[54].”

I would respectively adopt what his Honour said and indicate that I am of the view that this information was so integral to the reasoning process as to require as a matter of fairness that the applicant be told of it. He was told of it and I have no doubt that this was because the Tribunal considered the information to be important. The High Court has said that it is not enough just to tell an applicant about this information and discuss it with him at some length, he must also be given that information in writing with an explanation of why it is likely to result in his being refused a visa. That did not happen. I am bound by SAAP to find that the Tribunal thereby fell into jurisdictional error.

Particulars of the applicant’s email correspondence with Pastor Shayesceh

1. The applicant had been in email correspondence with the Pastor before he left Iran and this was used to corroborate his claim of interest in and conversion to Christianity. The Tribunal noted that the correspondence in no way referred to the applicant’s claims of being arrested, detained and tortured in May 2001. It relied upon that absence of information (as opposed to information itself) to disbelieve those claims. The applicant says that as the emails were provided by him to the delegate as opposed to being provided to the Tribunal, they are not protected by the exception found in s.424A(3). The respondent argues that the email did not form part of the reason for the Tribunal’s decision. I would respectfully disagree with this submission. It seems to me from the paragraph commencing with the words “in my view” on CB 169 that the failure to mention the incidents to Pastor Shayesceh was a very significant integer for not being satisfied that the applicant had a well-founded fear of persecution for the Convention reason of religion whilst still in Iran. The difficulty I have is in considering whether or not this information was the subject of an exception under s.424A(3). It is notorious that there are differing views on these matters in the Federal Court: SZDQL v Minister for Immigration [2005] FCA 769; NAZY v Minister for Immigration [2005] FCA 744; SZCJH v Minister for Immigration [2005] FCA 1660; SZBKB v Minister for Immigration [2005] FCA 1811; SZEKY v Minister for Immigration [2005] FCA 1138; SZBVE v Minister for Immigration [2005] FCA 1325; SZCEF v Minister for Immigration [2005] FCA 1200.  

2. It seems to me that where there are differing views on the interpretation of the law which purport to bind lower courts, the members of that court, in the absence of clear authority, should act with caution before adopting a decision unfavourable to the applicant. For this reason, I would follow the reasoning expressed by Sackville J in SZDQL v Minister for Immigration [2005] FCA 769 and Allsop J SZECF v Minister for Immigration [2005] FCA 1200 and declare that the Tribunal fell into jurisdictional error by not providing the applicant, in writing, the particulars of this email.

Particulars of independent evidence that did not suggest that a person having a private conversation such as that described by the applicant would have been treated as he claimed (which was a discussion with a friend relating to Christianity).

1. In regard to this claim I am satisfied that there was no relevant independent evidence. What the Tribunal said was:

   “Furthermore, the independent evidence does not suggest..”

   I am unable to maintain this ground.

Information it had been told in other cases that the Assembly of God Church in Australia is in contact with the Assembly of God Church in Tehran

1. The Tribunal relied upon this piece of information to assist it to come to a view that information provided by the applicant at the hearing and later in a statutory declaration, that the applicant did not agree with the DFAT report concerning the lack of danger to proselytes and converts in Iran, was not to be given more weight than the DFAT reports themselves. The reason for the decision in this case is clearly that the Tribunal thought that the situation in Iran for converts and proselytes was “safe” to the extent that it did not constitute a risk of persecution as defined by the Migration Act. It came to that conclusion by utilising evidence from DFAT. It preferred the DFAT evidence to other evidence produced by the applicant. One of the reasons why it preferred the DFAT evidence was the fact that it knew the Church in Australia and the Church in Iran were in communication. It used that knowledge in its thought processes to determine which of the two conflicting statements it preferred. When looked at this way it can be seen that the use of the information was use of information in the Tribunal’s process of reasoning. It was not in itself a piece of information that provided a reason or part of a reason. The information used could be contrasted with the information provided in the DFAT reports and the use made of the email. I cannot maintain this ground.

The Tribunal failed to give the applicant in writing particulars of information that it personally knew the DFAT officer that had obtained information from the source of the Church in Tehran relating to proselytising Christians and Apostate Muslims in Iran.

1. I have already extracted at length the transcript discussions between the Tribunal and the applicant and his advisor concerning this matter. The relevant information is that referred to by the Tribunal when it says:

   “Now I also consider it reliable because I know exactly who the DFAT, in this case, I do know, I know personally the diplomat, and I have discussed with her how she went about getting this information” (emphasis added)

   The Tribunal did not tell the applicant the content of those discussions but it is clear from what follows that those discussions were a significant integer of the Tribunal’s decision to prefer that evidence over evidence from the applicant which conflicted with the information contained in the cables. The respondent argues that the matter complained of was not information within the meaning s.424A and relies on the following dicta from Sackville J in Tin v Minister for Immigration [2000] FCA 1109 at 53:

   “The word "information" in s 424(1) is used, clearly enough, to refer to knowledge of relevant facts or circumstances communicated to or received by the Tribunal. In my opinion, the same word is used in the same sense in s 424A(1).”

   This dicta supports the views of the applicant. There were relevant facts or circumstances communicated to or received by the Tribunal. Those facts or circumstances were how the diplomat went about getting the information. The Tribunal knew how that was done and accepted it as pointing to the credibility of the evidence. But it did not tell the applicant how it was done, nor allow him the opportunity to comment upon it as required by s.424A(1)(c) in the manner prescribed. I am satisfied that by failing to do this the Tribunal fell into jurisdictional error.

2. The applicant then claims that the Tribunal failed to specifically address and make a finding on a material claim made by the applicant being a finding on the applicant’s claim that university officials had contacted his home a couple of times because they thought he was behind his friends conversion to Christianity. I am satisfied that the Tribunal did address this question which was raised by the applicant in a statutory declaration found at CB 136, considered by the Tribunal at CB 160-161 and made the subject of findings at CB 171.

3. The applicant claimed that the Tribunal failed to ask itself a question that it was required to ask, namely whether the applicant would be persecuted for reasons of political opinion (imputed or actual). I cannot accept this submission. The Tribunal dealt comprehensively with the applicant’s claims as to what might occur to a person considered to be a covert and proselytiser. This is primarily a claim in respect to the Convention ground of religion but I can accept that it might also include imputed political opinion. What the Tribunal found was that the actions that the applicant indicated he would take if he returned to Iran would not engender a reaction that could be considered persecutory. It seems to me to matter not whether the reaction was a reaction to an imputed political opinion or a religious matter. It is the same reaction: SZDTE v Minister for Immigration [2005] FMCA 297 at [20].

The Tribunal failed to ask whether the applicant, as an apostate Muslim and proselytising Christian who had been expelled from a university following a conflict with a head of the university department about politics would be at a greater risk of harm compared to, for example, non apostate Muslims and/or proselytising Christians.

1. I accept the respondents’ submission that the Tribunal was not required to ask itself this question. It was not a claim that the applicant articulated and to my mind it did not clearly arise from the material before the Tribunal: NABE v Minister for Immigration (No. 2) [2004] FCAFC 263 at [60] and [68].

The Tribunal failed to ask if the situation in Iran might change for the worse in Iran for proselytising apostate’s such as the applicant.

1. The Tribunal understood that in its consideration of the applicant’s claim it had to look not only to the situation as it was at the time of the hearing, but also in relation to the reasonably foreseeable future. An acceptance of this requirement must include by implication that in the reasonably foreseeable future the situation might change, although on the evidence the situation was improving. The applicant relies upon the views expressed by Kirby J in NABD of 2002 v Minister for Immigration [2005] HCA 29 at 134 but I note that his Honour was in the minority in relation to that case.

The Tribunal failed to ask whether or not living under the shadow of the possibility of a death sentence regardless of how remote that possibility might be could itself constitute persecution

1. In this regard the applicant relies upon what fell from the Full Bench of the Federal Court in SGKB v Minister for Immigration [2003] FCAFC 44 as referred to by Kirby J in NABD (supra). The relevant passage from SGKB (supra) was preceeded by the words:

   “… the Tribunal appears not to have considered the seriousness of the consequences to the appellant of his conversion becoming known to the authorities. The Tribunal accepted that the penalty for apostasy might be death.”

   This is not such a case. All the discussion between the Tribunal and the applicant and the basis of the Tribunal’s findings was that the applicant would be a demonstrative proselytiser. It is clear from the extract from the 1996 DFAT found at CB 165 that the existence of a nominal death penalty for apostasy was known to the Tribunal:

   “Apostasy is widely reported as carrying a nominal death sentence. However there are only one or two cases (high profile Christian clergy) where this sentence has ever been imposed. Moreover, some senior and influential clerics have recently publicly questioned such an interpretation of Koranic Law.

   …

   The last convert to be sentenced to death was Mehdi Dibaj, a high profile Christian pastor with a long history of proselytization. He was given a last minute reprieve in early 1992 but found murdered a year later.”

   The Tribunal concluded that the applicant would not face serious harm. There is no evidence that the Tribunal did not include within that category the very possibility adumbrated by applicant.

The applicant claims that the Tribunal made a material finding in the absence of probative evidence which could constitute a jurisdictional error: SFGB v Minister for Immigration [2003] FCAFC 231.

1. The Tribunal’s findings are at CB 170:

   “In the past, the independent evidence has suggested that Muslims who convert to Christianity and who proselytise Muslims could be at risk of persecution in Iran, However, there is now a strong evidence before the Tribunal suggesting that members of the Assembly of God Church in Tehran, which has a congregation consisting largely of Muslim converts, are able to attend church and engage in evangelical activities without encountering serious harm, either from the government or the community .”

   It also states:

   “…no information is provided which suggest that members of the Church have in fact been seriously harmed because hey have been involved in proselytising. On the other hand, the information provided to DFAT indicates that church members have been involved in specific proselytising activities (handing out Bibles in public transport in the lead-up to Christmas last year) without encountering serious harm.”

   This information comes from DFAT table No. 31/03 found at CB 258 and in particular the following response:

   “A.1 .Our regular interlocutor at the church has no knowledge of a case in which a church member was questioned or charged relating to the distribution of proselytising material, he does acknowledge that church members were involved in the distribution of such materials (around 2000 Bibles, religions films and CDs were given out in buses and taxis in Tehran) in the lead-up to Christmas 2002.

   The applicant argues that this statement does not constitute evidence of no serious harm, it merely constitutes evidence of no arrests or questioning. But the response must be put into its context. It is a response to a question about certain claims made in a report CX70351 that relates to mistreatment of Evangelical Christians and instances of government harassment of church goers in Tehran, particularly worshipers of the Assembly of God congregation in the capital. I believe that when looked at in that context the response does provide sufficient evidentiary backing for the finding of the Tribunal.

2. The applicant argues that the Tribunal failed to take into account relevant considerations. This consideration was “the applicant’s expulsion from university following a conflict with the head of a university department about politics when determining if he had a well-founded fear of persecution. The applicant accepts that this was taken into account when considering whether or not the applicant had a well-founded fear of persecution for reason of religion but states that it was not taken into account in considering whether he has a well-founded fear of persecution for reasons of political opinion. I am satisfied from my perusal of the reasons for decision and the matters previously referred to in relation to this topic that the Tribunal did take this relevant situation into account.

3. The applicant alleges an apprehension of bias in relation to the Tribunal. He relies on the test set out in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 and NAVH of 2001 v Minister for Immigration [2004] FCAFC 328 at 14 where the Full Court said:

   “The general test for apprehended bias is whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision: Webb v R (1994) 181 CLR 41, 70-71; Laws at 90-92; Ebner at 343-45; and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, 434-35 at [27]-[32].”

   The claims under this head are:

   The Tribunal arbitrarily found that the applicant had fabricated his claim that he had been detained by university security officer because he had not mentioned the incident to anyone else despite accepting the applicant’s evidence as substantially reliable.

   The very use of the words “substantially reliable” makes it clear that the Tribunal was not totally convinced by the applicant’s evidence. The Tribunal is entitled to find parts of the applicant’s evidence reliable and parts not reliable. In W148/00A vMinister for Immigration (2001) 185 ALR 703 Tamberlin and R D Nicholson JJ said at [69]:

   “Although some of the specific matters referred to by the tribunal in this case, if taken separately, may not in themselves be sufficient to warrant a conclusion that the appellant's evidence should not be accepted, we consider that, on the cumulative weight of the matters referred to by the tribunal, it was open to the tribunal to reach its conclusion as to credibility.”

   In addition in Ex parte Durairajasingham (2000) 168 ALR 407 at [67] it was relevantly said that:

   “A finding on credibility…is the function of the primary decision-maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believe. The Tribunal must give the reasons for the decision, not the sub-set of reasons why it is accepted or rejected individual pieces of evidence

   This is not an indicator of bias. This allegation cannot be maintained.

4. The applicant argues that the Tribunal selectively refused to consider the US state department as a reliable source of information but then relied on US state department reports when those reports supported its findings that the applicant claims are not well-founded: for example in relation to registration of marriage. The Tribunal in its reasons differentiated between the situation regarding American reports concerning what was occurring at the Assembly of God Church and other more general matters. It was in relation to what was occurring in that church that the Tribunal preferred its own evidence from DFAT reports. The Tribunal having acknowledged the difference in the reports and having provided a ground for preferring one over the other there can be not room for an allegation of apprehended bias in respect of the decision to prefer one over another.

5. The applicant maintained a further ground of alleged apprehended bias being:

The Tribunal revealed at the hearing that it also considered the DFAT reports which it relied upon to reject the Applicant’s application) to also be reliable because it personally knows the DFAT officer who obtained information from the source and that it had discussed with that officer how she went about getting that information  

I have no doubt that the Tribunal considered the information provided by the DFAT officer to be reliable because of the personal relationship which existed between the DFAT officer and the Tribunal. The Tribunal effectively had before it two witnesses, the DFAT officer and the applicant. The Tribunal had an admitted pre-existing view of the veracity of things said by the DFAT officer. It had no such pre-existing view in relation to the applicant. But the evidence of the DFAT officer was hearsay. It was evidence of that officer’s conversations with a third party unknown to the Tribunal and unnamed. It was contrasted with hearsay evidence from the applicant, being evidence of email correspondence between the applicant’s advisor and a party in Iran with access to a member of the same church. What would a fair-minded person think when presented with these facts. I am of the view that most fair-minded people would have said words to the effect that “the Tribunal prefers the hearsay from the department because it knows the person who provided that information personally”. That is not a profession of impartiality, quite the contrary. The Tribunal may not be bound by technicalities, legal forms or rules of evidence (s. 420(2)(a)) and it may obtain any information that it considers relevant (s.424(1)). But appearing to rely on a personal connection to confirm veracity is not one of those. The respondent argues that a study of the transcript reproduced in these reasons will show quite clearly that the Tribunal was not biased. However that is not the question. A claim of apprehended bias has never been defeated by assertions that no bias exists. This is because apprehended bias, as opposed to actual bias, may be proven upon what might be observed objectively, distinct from the actual state of mind of the decision-maker: Minister for Immigration v NAOS [2003] FCAFC 142; Minister for Immigration v Jia (2001) 205 CLR 501. In VFAB v Minister for Immigration [2003] FCA 872 Kenny J said at [25]:

“It will always be a question of fact and degree as to whether a closed mind can be inferred from any hostility displayed by the decision-maker in the course of decision-making towards a party or a party’s case.

….

The test is whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided: Ex parte H, at 434 per Gleeson CJ, Gaudron and Gummow JJ. As their Honours observed, this rule may be expressed differently when applied to administrative proceedings, in order to take account of the nature of the decision-maker and its proceedings. "[R]egard must be had to the statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject matter with which the decision is concerned": see Ex part H, at 427.”

See also NADH of 2002 v Minister for Immigration [2004] FCAFC 328 at 14; Webb v R (1994) 181 CLR 41, 70-71; Ebner v Official Trustee in Bankruptcy (2002) 205 CLR 337 at 343-45; and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, 434-35 at [27]-[32].

1. It is the apprehension of bias, the fact that a person from the outside might think that a decision could have been biased that is the vice. In Applicant A165 of 2003 v Minister for Immigration [2002] FCA 877 Lander J stated at [67] that:

   “The question for determination when considering apprehended bias is not the state of mind of the decision maker, but the state of mind of a reasonable bystander properly informed: Ebner v Official Trustee in Bankruptcy (2002) 205 CLR 337 at [7].”

   In Bilgin v Minister for Immigration (1997) 149 ALR 281 Finkelstein J considered the circumstances in which a finding of apprehended bias might arise at [290]:

   “…Constructive or apprehended bias can arise in many different circumstances. One clear example is that of a pecuniary interest in the outcome of a case: Dimes v Grand Junction Canal (1852) 3 HLC 759 where an order was set aside because the Lord Chancellor was a shareholder in the company concerned. Another example is that described as “incompatibility” by Isaacs J in Dickason v Edwards (1910) 10 CLR 243 at 259. It arises when the decision-maker has some other position in the case. A common instance would be where the decision-maker is officially connected with a party. Another example is where there is a relationship, of friendship or otherwise, between the decision-maker and a party: Ex parte Blume; Re Osborn (1958) 58 SR(NSW) 334 where there was a close friendship between a judge and a party's spouse. Another example again, and the one with which we are concerned in this application, is what has been called predetermination or prejudgment. By this I mean the situation where, as a result of earlier events, a decision-maker has formed views about an issue of law or fact that will arise for his or her determination. It is not surprising that this situation frequently occurs.”

   I am satisfied that this claim by the applicant is made out and the Tribunal fell into jurisdictional error by virtue of the apprehension of bias demonstrated.

2. Finally the applicant alleges that the Tribunal did not provide him with procedural fairness because it did not tell him what it had been told in other cases concerning the connection between the two Assembly of God churches. It used this information to corroborate the veracity of the DFAT reports which the applicant did not accept. This is not a case such as that in Applicant VEAL of 2002 v Minister for Immigration [2005] HCA 72 where the Tribunal purported to ignore information that the High Court found to have been credible, relevant and significant. This was information that the Tribunal actually used. The difficulty which the applicant has is that at page 15 of the transcript the Tribunal says:

   “The Church here is in contact with the Church in Iran and they have not produced anything to indicate that the information that has been given by the Ministers in the Church in Iran to the Australian Embassy is not reliable or not correct.”

   The matter relied upon to corroborate the DFAT reports was the communication between the two churches. The Tribunal proceeded from the existence of that communication to the finding that if the DFAT reports were incorrect or misleading it would have been open for the Assembly of God church in Tehran to take this up with the Australian embassy. I am satisfied that the significant piece of information was clearly put to the applicant and that there was no breach of procedural fairness in this regard.

3. The applicant has succeeded in convincing me that a number of jurisdictional errors have been made by the Tribunal. In those circumstances it is appropriate that I should find that the decision of the Tribunal is void and of no effect and that I should order that the matter be referred back to the Tribunal differently constituted to be heard and determined according to law. If required I will grant the necessary constitutional writs. I would also order that the respondent pay the applicant’s costs which I asses in the sum of $5,000.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  23 December 2005