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MIGRATION -- Application for review of Refugee Review Tribunal's decision -- no jurisdictional error -- application dismissed.

NADN v Minister for Immigration [2003] FMCA 112 (15 April 2003)

NADN v Minister for Immigration [2003] FMCA 112 (15 April 2003)
Last Updated: 2 May 2003


[2003] FMCA 112

MIGRATION -- Application for review of Refugee Review Tribunal's decision -- no jurisdictional error -- application dismissed.

NADN of 2002



File No:

WZ 80 of 2002

Delivered on:

15 April 2003

Delivered at:


Hearing Date:

19 June 2002

Judgment of:

Walters FM


Counsel for the Applicant:

In person with the assistance of an interpreter

Solicitors for the Applicant:


Counsel for the Respondent:

Mr Macliver

Solicitors for the Respondent:

Australian Government Solicitor


(1) The application be dismissed.




WZ 80 of 2002

NADN of 2002






1. The applicant is a citizen of Iran, who arrived in Australia by boat on 15 March 2001. He was interviewed by a departmental officer on

3 April 2001. He lodged an application for a protection visa on 9 October 2001. On 12 November 2001 a delegate of the respondent refused to grant the protection visa that had been applied for, and on 19 November 2001 the applicant sought a review of that decision by the Refugee Review Tribunal ("the RRT").

2. The applicant attended a video link hearing before the RRT on

16 January 2002. The hearing was conducted with the assistance of an interpreter. The applicant was also represented by an adviser, who attended the hearing.

3. The RRT's decision was made on 15 February 2002. The RRT affirmed the decision not to grant a protection visa.

4. On 1 March 2002 the applicant applied to the Federal Court for review of the RRT decision. He relied upon the following grounds:

a) To allow the decision to stand would be wrong, and would deny the applicant a visa.

b) The decision involves an error in law. There was no jurisdiction to make the decision.

c) The Migration Act did not permit the making of the decision.

5. On 1 May 2002 it was ordered that the proceedings be transferred to this Court.

6. On 3 May 2002 the applicant wrote to the court seeking an adjournment on the basis that he required more time to prepare his case and that he required the services of a legal representative to act on his behalf.

7. On 14 June 2002, the applicant again wrote to the Court. He again sought an adjournment on the basis that he required more time to prepare his case. He wrote that he was reading and translating various documents relating to his application for a protection visa and the proceedings before the RRT in order to identify "mistakes or errors which were made by (the) interpreter in (the) initial interview".

8. The hearing took place in this Court on 19 June 2002. The applicant was present by way of a video link and had the assistance of an interpreter. I was satisfied that he fully understood all aspects of the proceedings, and was aware of his rights and obligations as a self represented litigant. I was conscious of the need to afford the applicant procedural fairness, and gave him every opportunity to put before me such submissions as he considered relevant. I clarified the substance of the applicant's submissions, and was conscious of the need to maintain "a level playing field" (as it were).

9. At the commencement of the hearing, the applicant sought and was granted leave to withdraw his application for an adjournment.

10. The applicant was born on 23 September 1974 in Iran. He is an Iranian citizen. Upon his arrival in Australia, he indicated that he had left Iran for three reasons:

a) because his life was in danger;

b) because he wanted freedom of thought; and

c) because he wanted to further his education.

11. At his entry interview, the applicant identified himself by a Muslim name only. It would appear that he stated that he had no other names. He identified himself as a Shi'ite Muslim.

12. In his application for a Protection (class XA) Visa (which application was dated 9 October 2001) the applicant stated that he had converted to Christianity and that he had changed his name to "Daniel". His given name in Iran was "Mahdi". The applicant gave his religion as "Christian (Catholic)". In a statement attached to the application, he stated that he did not want "...to be associated with the Muslim faith any more". He asserted that he would soon be baptised and that he would "...officially become a Christian". He stated that he feared that he would be killed if he was forced to return to Iran. He stated that he would be killed by the "Etelaat" (the Iranian Government's Internal Security Service) due to his political and religious views and activities. He added:

They will also kill me due to the fact that I have converted from Islam, which is forbidden.

He asserted that the authorities in Iran would not protect him if he is compelled to return to that country because "they are the ones persecuting me".

13. The applicant was baptised into the Catholic faith on 25 December 2001 by the resident priest at Port Hedland, Father Walter McNamara.

14. Under the heading "Claims and Evidence", the RRT reviewed the evidence then before it regarding the applicant's background, education, employment history and military service. It also reviewed the evidence relating to the course of events leading to the applicant's arrival in Australia. The following passages appear on pages 129 and 130 of the Court Book:

Amongst the Applicant's personal effects, Australian immigration officials found a prayer sheet from the Al Najaf mosque. Al Najaf is a city of pilgrimage, located in Iraq and holy to Shi'ite Muslims who make up the vast majority of Iran's population. It is not a Sunni shrine in spite of its location in Iraq. Pilgrimages are made by Iranians who travel to Iraq on Iranian passports. Iraq probably derives important tourist income from the pilgrimages in a time of international sanctions and decreased trade with Iran...

The prayer sheet found in the Applicant's possession contains Arabic and Farsi (Persian) text. The existence of this document... (raises) questions in the context of the Applicant's...claims regarding "religion". Although the prayer portions are in Arabic...the item appears to be designed for distribution to, and use by, Iranians. This is not unusual...

The Applicant, now claiming to be a Christian, later explained to (the Department) how this item came to be amongst his personal effects. He said that it was given to him by a friend in Indonesia to protect him and that out of courtesy to the friend he did not state that he was a Christian. In this explanation of things, the friend would probably have to have been Iranian, for Indonesian Muslims are Sunni and should have no need of Farsi documents featuring Shi'ite prayers in Arabic.

15. At page 130 of the Court Book, the RRT wrote:

In August and September 2001... (the applicant) sent a number of letters to (the Department) saying he could not go back to Iran because he had changed his religion and was "really Christian now". He did not refer to Catholicism. He explained his claimed conversion in terms of his eyes having been "blind"; he thus defined the conversion in terms of what he described as flaws in himself. He asked to be called "Daniel", a name not cited in the entry interview.

16. Under the heading "Primary Application" the RRT wrote:

The Applicant also now claimed he was a "Christian (Catholic)". He sought to support this claim with a certificate stating that he had completed the "Word of Life" Bible Correspondence Course. The Tribunal has checked the "Word of Life" website and found that it is not Catholic. It evidently ignores the Apocrypha, pays no attention at all to the cult of the Madonna and recognises the full (Protestant) text of the Lord's Prayer.

17. The RRT reviewed certain of the applicant's claims regarding his activism at university, including the applicant's statement that he started a discussion group at university to discuss politics and religion (which group frequently criticised the government and fundamentalists). The applicant claimed that he had been arrested by Etelaat as a result of his student activism, and later detained by them. The following passages then appear (starting at page 133 of the Court Book):

The Applicant claimed he went...to Tehran and was then asked by a friend to re-visit his campus to give a public speech about "the fact that Islamic instructions prevent one from advancing in ... life". It struck the Tribunal that that to do so in the claimed circumstances would be a ticket to jail, but the Applicant claims he took up the invitation and that he somehow avoided arrest and imprisonment. He also claimed that he personally distributed anti-clerical pamphlets in Tehran, Arak, Tafresh and other towns and cities. Again, it must be noted that the Applicant not only failed to refer to undertaking these political activities in his entry interview, but plainly denied that he had been involved in them, for he said he faced trouble merely over an instance of discussing religion whilst still a student.

The Applicant also made the broad claim, in his statement, that he had meanwhile taken an interest in Christianity as he was fed up with Islam. However, his evidence nevertheless seemed to indicate that he was involved all the while in dear defence of Islam from exploitative interpretations by politicised clerics.

18. Under the heading "DIMIA Interview", the RRT wrote:

The Applicant gave unimpressive evidence with regard to Christian religious knowledge at his DIMIA interview, conducted on 13 October 2001. He said he discovered towards 2000, after "some research", that Islam was a "hollow religion". He told the primary decision-maker he had never discussed his religious feelings with anyone. He added that although he did not have much information about Christianity available to him he already decided it was the religion for him. This last position appeared to reveal an ill-considered attraction to Christianity. The Applicant went on to say that the stream of Christianity he followed was "Catholic" but that he did not have much information to distinguish between the different denominations. This seemed to be evidence in his pursuit of the "Word of Life" course, which is clearly non-Catholic. The primary decision-maker asked the Applicant if it were fair to say that one would have to go very deeply into a religion before deciding to seek conversion. In reply, the Applicant said that it was, and thus that one would have to do so. He nevertheless appeared to demonstrated that he had decided that he was Catholic without having given the matter even remotely rigorous consideration.

The Applicant told the primary decision-maker that he decided to be specifically a Catholic after requesting materials at the detention centre, presumably whilst his boat group was still in isolation from the rest of the caseload. This suggests that he had contact with a Catholic visitor, and yet he embarked on a non-Catholic bible study course. The primary decision-maker asked the Applicant for details about the central message of Christianity and about the mission and resurrection of Jesus. The Applicant's responses, appeared vague, even for a Muslim, to whose culture Jesus, like Abraham and Mohammed is a significant prophet.

The Applicant was unable to recognise the term or mystery of the Holy Trinity. This failure appeared interesting to the Tribunal, as the Holy Trinity is a central mystery, or revelation or paradox to Catholic and non-Catholic Christians.

The Applicant claimed at his DIMIA interview that Christians do not face persecution in Iran per se, and that if he went back to Iran and were not detected by the authorities to have converted to Christianity, he would face no trouble from them. This seemed to constitute a retreat from the position he advance in his letters to DIMIA and in his written statement. However, the Applicant went on to say that he would be killed if he so much as walked into a Catholic church on a Sunday in Iran.

19. The RRT then "examined independent information" about religious conversion and the treatment of Christians in Iran. The Tribunal noted that:

...the Roman Catholic church in Iran barely exists as such in Iran, Catholicism having survived there in the form of the Chaldean Rite. The Chaldean Catholic church in Iran is nevertheless evidently a viable one.

20. The RRT then proceeded to consider "evidence from another source" regarding the persecution of Evangelical Christians in Iran. At page 140 of the Court Book, the RRT wrote:

The Tribunal considered the Applicant's potential to be an evangelical Christian ... It notes that rather than stay on and become an evangelical Christian, the Applicant departed Iran, deciding to call himself a Catholic without having really looked into what distinguished a Catholic from other Christian denominations. He did not appear to the Tribunal, on the evidence in his file at least, to have the makings of an evangelical Christian, lacking as he appeared to do the essential ability to explain Christianity to the unconverted. Moreover, the most logical church for him to join in Iran would be the Chaldean one, which on evidence cited (by the RRT) actively discourages evangelism...

The primary decision-maker returned to the matter of the Applicant's failure to mention Christianity during his entry interview. In reply, he said he had been told to state why he left Iran and nothing else. As far as the Tribunal can discern, the Applicant was asked to state his religion; the Applicant never denied this. He was also given an opportunity to include apostasy as an issue in his case. There is no evidence to support the claim, made at the DIMIA interview, about being told to state why he left Iran and nothing else.

It is clear form the proceedings in the DIMIA interview that the Applicant volunteered no explanation for the prayer sheet until it was brought to his attention in the form of an adverse position put to him. Only then did the Applicant say, "It's not mine". It appeared to the Tribunal on reviewing this part of the Applicant's evidence that he seemed to have forgotten he had it on him, at least by the time he started proclaiming himself a Christian in letters to DIMIA. The primary decision-maker later returned to this subject and put it to the Applicant that he thought the Farsi-Arabic prayer sheet was in fact his. The Applicant repudiated this position and said that he only took it out of respect of the person who gave it to him. He then said he chose Christianity as a means of organising his life, in spite of having an evidently disorganised impression of Catholic tenets and their uniqueness in the context of other Christian persuasions.

21. Under the heading "the RRT Application and Supporting Letter", the RRT referred to a letter written by the applicant on 26 November 2001. It wrote (at page 142 of the Court Book):

The letter asserted that because the Applicant has been dangerously outspoken in the past, he is more likely to be outspoken and evangelical in the future. It struck the Tribunal that there were at least two ways in which a reasonable person might deal with such an assertion. One might be to accept it at face value and construe that if the Applicant were to return to Iran, and then go on to evangelise, it would be his choice entirely. Accordingly, one might take the view that he should not be hindered from his mission at home. Another way of approaching this assertion might be to note that, whilst the Applicant's professed tendency was to evangelise, even in the face of death, he had ducked the whole challenge by emigrating from Iran even as he stood on the threshold of his new faith. This second approach invited the thinking person to reject the assertion as baseless, inherently contradictory and illogical.

The letter di not address the DIMIA officer's positions about the Islamic prayer sheet, probably because the DIMIA officer, albeit with very strong reservations, decided to accept the Applicant's explanation for it. For its won part, the Tribunal though about the document and decided that it could not dispute that the Applicant might have been given it by a friend. It also considered that the Applicant's knowing what the sheet was about was immaterial. It did have some concerns as to why the Applicant would retain it and not try to explain it until challenged over it. It thus could not avoid the impression that the timing of the Applicant's explanation for it was peculiar. However, it is of the view that it would be unreasonable to decide the present matter on the existence of this one document in the Applicant's personal effects. It did not question the Applicant about the document and makes no conclusions in relation to it. It sought to look, rather, in more detail at the Applicant's claimed past: at the background to his debating group, its composition and motivation, at the university's role in the debate, and at his motives for and process of conversion.

22. Under the heading "The 16 January 2002 Submission", the RRT referred to "a late submission" made by the applicant's adviser immediately prior to the commencement of the hearing in the RRT. The submission comprised a statutory declaration from the applicant "...and several witness statements regarding his process of catechesis". The RRT then wrote:

The Applicant made one seemingly key assertion in the statutory declaration: "I have become interested in Christianity after I arrived in Port Hedland". This claim contradicts claims before the date of the submission and during the RRT hearing that followed.

23. Under the heading "The RRT Hearing", the RRT wrote:

The Tribunal drew the Applicant's attention to his claims about becoming disenchanted with Islam and asked him how he became so. In reply, he focused only on the repressive manipulation of Islamic teaching by a conservative clergy, sufficient, perhaps, to justify a more liberal interpretation of Islam on his part but not even remotely sufficient to argue a repudiation of the religion itself.

The Applicant said he became Christian because he wanted to be useful to society. Hearing his explanation, the Tribunal could not see how he expected to be of any use to Iranian society if he became apostate, in theory at least "buying" himself a ticket to the gallows.

The Applicant told the Tribunal that he was baptised a Catholic on 25 December 2001. His baptism followed a seemingly fast-track catechesis, for he had only been out of isolation since October and as at that time, according to material faxed to the Tribunal on 16 October 2001, he had been busy swatting up on literature sought form the Anglican Church of Australia and the Persian Evangelical Christian Church. An 8 January 2002 letter from a Catholic nun, included in the 16 January submission, sought to address this issue. The nun, who has met the Applicant at Port Hedland IRPC, stated that the Catholic Church does not frown upon would-be converts studying their catechism through Protestant courses as it is consistent with the principle of Ecumenism.

The Applicant told the Tribunal that he first embraced Christianity back in Iran in April-May 2000 when he was expelled from university. The Tribunal asked him about the alteration, in his primary application form, of the date up to which he studied at university in Iran i.e, the removal, as discussed above, of "Dec/" from "Dec/2000". In reply, the Applicant indicated that he did not have anything to do with the original date as it appeared or with its obliteration.

The Tribunal asked the Applicant to go into more detail as to how Christianity blossomed in him. In reply, he said that when he came to hate Islam he felt a searching inside. He said he was not able to research this a lot in Iran but that he came to perceive Christianity as a religion upholding principles of love and mercy. The Tribunal asked the Applicant what his research involved. In reply, he said he saw a different between Iranian and Western societies and decided Christian societies were more moderate. He thus indicated that he had formed a perception in his mind, whilst still in Iran, that Western society is synonymous with Christianity. He said that he had felt that in other societies there was real freedom.

The Tribunal asked the Applicant to describe in detail the actual process of research he undertook but he was unable to do so, no matter how many times it tried to press him to focus on the process of what he himself called his "search". He lived in Iran for several months between April-May 2000 and the time of his departure. His evidence at the hearing about his claimed search and intense attraction to Christianity was extremely vague. The Tribunal put it to him more than once that his research seemed superficial, particularly in light of his claimed need to find a code for living that fulfilled whilst liberating him. The Applicant made little sense in reply, repeating that he thought Christianity was better than Islam. The Tribunal then put it to him that his search appeared to consist of a process of unrelated assumptions not befitting the standard of analysis expected of a university scholar. The Applicant then denied he had undertaken research, and said that he simply saw the emptiness inside himself and looked for a religion to fill it.

The Tribunal asked the Applicant when he adopted the name "Daniel". He said he did so after three months in Australia, when he was visited by a Christian "counsellor". This was presumably whilst he was still in isolation but some time after his entry interview, which was on 3 April 2001, two weeks after his entry into Australia.

Thus is appears that whilst the Applicant claimed to have been embracing Christianity for about a year prior to his entry interview, the first sign of any shift from Islam to Christianity in his case appears after a Christian "counsellor" has visited him in isolation. In spite of the Applicant professing that he was already a Christian in his heart and mind before coming to Australia and that this was a significant reason for his flight from Iran in the first place, the Tribunal perceived at the hearing that the earliest sign of his conversion did not appear until some months after his entry interview.

Meanwhile, the fact that the Applicant's "research" comprised wholly internal reflections about countries he had never visited reveals to the Tribunal that he never even conversed with Christians in Iran, not even covertly, the way he claimed to have frequently discussed things with his fellow students. If he could discuss taboo topics and agendas with these fellow students, even in public speeches, there seemed no reason to the Tribunal why he could not steal a few quiet moments with a Chaldean and ask: "What's it all about?". On his evidence, he did not even open a book, not even the Bible; not in the eight or nine months between his claimed expulsion (over his liberal Muslim stance on things) and his departure from Iran.

The Tribunal asked the Applicant to speak to his claim about not having had enough opportunity in his entry interview to discuss his religious conversion to Christianity, one that he clearly claimed had already been fully embraced by him prior to his departure from Iran. In response, the Applicant said that at the time of his entry interview he did not have enough information about Christian organisations. The Tribunal considered this but it did not appear to be a satisfactory reason for failing to state simply that one had abandoned Islam for Christianity. The Tribunal put it to the Applicant that he must have know for many years that conversion in Iran form Islam to Christianity was potentially a death penalty matter; this is because he himself said so in his letters to DIMIA, and it is inconceivable that he had no knowledge of the law until he arrived in Port Hedland, for he said in the letters that the fear of this specific law had driven him to flee). The Tribunal put it to the Applicant that it ought to have been a priority to raise the one matter that in his mind involved the certainty of the death penalty.

It was trial at this point that the Applicant altered his position significantly, and in a way seemingly devastating to his overall credibility: he said he never mentioned his conversion o Christianity at the entry interview because he himself had decided that the did not want to use it as the basis of his case. This seemed to the Tribunal to be the more plausible explanation. The claim about being deterred from doing so by the very process of the interview itself does not stand up to close examination. At the same time it reinforced the perception of a significant trend, discernible throughout the whole body of the Applicant's claims: the presentation of opposing, mutually exclusive claims. Meanwhile, neither of these claims sits with the assertion, in the 26 November 2001 letter, about the Applicant having wanted for a lawyer of adviser to assist him in recognising what was relevant to his case.

The Applicant told the Tribunal that if the entry interviewer had asked if he hated his religion and wanted to embrace another, he would have discussed the subject, but this does not sit with his saying that he had decided not to refer to the matter.

24. Following the hearing, the RRT drew the applicant's attention to a letter drafted in compliance with section 424A of the Migration Act, in which it summed up "all of its main concerns with his claims". Under the heading "The Applicant's Reply to the Tribunal's s424A Letter", the RRT wrote:

The Applicant replied in the form of a further submission, dated 23 January 2002.

Notably, the Applicant provided yet another, entirely unprecedented explanation as to why he did not mention Christianity in his entry interview. He now said that, in giving evidence at that interview, he had understood the entry interviewer to have instructed him to disclose his identity and other details in the same ways as it was known to the Iranian government.

The Tribunal does not believe this. The Tribunal is of the view that the Applicant did not believe it to be the case when he provided other, very different explanations for the omission of this significant factor form his initial body of claims as to who he was, what he stood for, why he had left Iran and why he could not return.

Again the Applicant contradicted himself, stating that he himself considered his Christianity as an insignificant issue at the time of his entry interview.

The Applicant reiterated that before his departure from Iran he was aware of the problems for Muslim converts to Christianity in that country. He also said that the real reason for fleeing Iran was not in any way related to his Christian belief, but this position is contradicted in other parts of his evidence.

The Applicant denied that he became Christian just to strengthen his claim to refugee status.

25. Under the heading "Findings and Reasons", the RRT summarised its findings regarding the applicant's background and student activism. It found that the applicant did not account satisfactorily for the 8 or 9 months he spent in Iran prior to his departure. In dealing with the applicant's evidence regarding public protest and pamphlet dissemination, the RRT was strongly critical of the applicant's credibility. For example, the RRT found that the applicant's evidence "...about beards and friends' houses is dismissed as a whole lot of dissembling". Further, the RRT dismissed "as inconsistent and implausible" the applicant's evidence "...of his claimed `escape' on a false Iraqi passport".

26. In relation to the applicant's conversion to Christianity, the RRT wrote:

Turning now to the Applicant's religious claims, the Tribunal does not accept that he proceeded towards baptism into the Catholic Church in good faith. The Tribunal is overwhelmingly struck by the inconsistency and superficiality of the Applicant's account of his so-called "conversion" from Islam to Christianity, in terms of origins, motivation and timing. The Tribunal also finds that the Applicant gave highly contradictory reasons for failing to bring his religious claims to the attention of Australian authorities sooner than he did. Even he himself, at one stage of his evidence, revealed that he became interested in conversion after a visit by a counsellor to where he was being held in Port Hedland, three months after his arrival here, and prior to his release into the general holding area.

Taking all the Applicant's evidence into consideration, and notwithstanding letters form religious persons attesting to his perceived sincerity, the Tribunal concludes that the Applicant's so-called "conversion" is all a big fraud. In spite of his claims to the contrary, the Tribunal finds that the Applicant has contrived a disingenuous course of religious conversion much in the same way as he has fabricated his history of political dissent at university, and of illegal departure from Iran. The Tribunal concludes that he had done all these things for the purpose of fashioning a claim to refugee status in Australia.

S91R of the Act obliges the decision-maker to disregard all actions taken by an applicant in Australia that are found to have been undertaken purely for the purposes of strengthening a claim to refugee status within the meaning of the Convention. The present Applicant's claims based on religious conversion are accordingly disregarded.

The Tribunal is very confident that it anyone in Iran tried to denounce the Applicant as a person suspected of trying to convert to Christianity in Australia, it would be very hard for the accusation to sick unless, say, the Applicant led his accusers into a church and took communion in front of them, in which case, it has to be said, his martyrdom would be his own business. The Tribunal is so strongly struck by the Applicant's lack of good faith that it is extremely confident he would abandon his so-called newfound Christianity back in Iran and lose no sleep over it at all, denying it as he has denied many facts in the present application, to suit the occasion.

Supposing, however, that the Applicant decides that he grows to like being a member of the community of Catholics, for one reason or another, if he had not done so already, the Tribunal should look at his prospects for survival back in Iran. In doing so it is guided by four significant factors: firstly, there is no reason to assume the Applicant is or would be evangelical, as his religious knowledge is weak and he has shown that he would rather depart Iran than stay on to preach to others; secondly, the church with which Catholicism most closely corresponds in Iran strongly discourages evangelism; thirdly, the independent evidence clearly states that, although there is a nominal death penalty for apostasy, it has rarely been brought upon anyone, partly because the state evidently takes no interest in converts who go about their new lives discreetly; and fourthly, the Applicant himself stated at one stage of his evidence-giving that he would face no persecution if he remained discreet. For all these reasons the Tribunal concludes that the Applicant would not face a real chance of persecution in Iran for reasons of being a Catholic.

The Tribunal is not satisfied that the Applicant faces a real chance of Convention-related persecution in Iran. He is not a refugee.

27. During the course of the hearing in this Court, the applicant asserted that the RRT had made various factual errors in its decision. According to the applicant, these errors arose as a result of mistakes or errors made by the interpreter during the course of the hearing. The errors can be summarised as follows:

a) There was confusion regarding addresses at which the applicant had lived whilst in Iran (Court Book page 131).

b) The applicant asserted that he had said that his father organised for his passport to be obtained, which statement was erroneously translated as the applicant having arranged for the passport himself (Court Book page 136).

c) The applicant asserted that he had said that one of his relatives was involved in mass killings in Iran, which was translated to the effect that the events had occurred in Iraq (Court Book page 129).

d) The applicant had said that one of his cousins was a member of the Mujahadein group; he did not say that he that he was a member of that group (Court Book page 129).

e) The applicant asserted that he could never have had contact with anyone whilst he was in the Port Hedland detention centre; he did not say that he had had contact with someone during that period (Court Book page 145).

f) The applicant had said on several occasions that he had been captured (twice) by "a group of Iranian security people"; he did not say that he had not been captured (Court Book pages 133 and 152).

g) The applicant had said that he had indeed been visited by a Christian counsellor whilst he was in isolation at Port Hedland; he did not say, however, that the counsellor was responsible for his conversion to Christianity (Court Book pages 153 and 147).

h) During his university days, the applicant had spoken about "population and the growth in population"; he had not spoken about the Koran (Court Book page 129).

i) The applicant had said that he was held and interrogated in connection with suspected weapons smugglers; he did not say that he was held an interrogated in connection with suspected drug smugglers (Court Book page 133).

j) The applicant did not say that he was a painter and a taxi driver; he asserts that he was asked if he could drive and he replied in the affirmative (Court Book page 122).

28. According to the applicant, the RRT did not give him the opportunity to explain why he left Iran. The applicant asserted that "question after question was about my conversion to Christianity, and when I asked about this he said he would ask the questions that he thought were relevant to my case". The applicant asserted that his conversion "had nothing to do with the case".

29. Pursuant to s.483A of the Act, this Court has the same jurisdiction as the Federal Court in relation to a matter rising under the Migration Act. Under s.475A it has jurisdiction in relation to a `privative clause decision' that is a decision made on a review by the Tribunal. `Privative clause decision' is defined in subsections 474(2) and (3) of the Act. Subsection 474(1) of the Act limits review by the Court of privative clause decisions as follows:

A privative clause decision:

a) is final and conclusive;

b) must not be challenged, appealed against, reviewed, quashed or called into question in any Court; and

c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court on any account.

30. In NAAV v MIMIA [2002] FCAFC 228 the Full Court of the Federal Court held that s.474 must be construed in the same manner as the kind of privative clause considered in the decision R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598. In other words, there were said to be three conditions which, if met, would ordinarily mean that a decision the subject of a provision such as s.474 would be valid. These are:

a) the decision is a bona fide attempt by the decision-maker to exercise its power;

b) the decision relates to the subject matter of the legislation; and

c) the decision is reasonably capable of reference to the power conferred on the decision-maker.

31. There was also broad agreement in NAAV that the purported exercise of power must not be one that contravened an inviolable limitation on the operation of the Act.

32. In Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, the High Court held that as a matter of construction the expression `decision... made under this Act' in subsection 474(2) "must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act." (at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ, and also see [19] per Gleeson CJ and [163] per Callinan J). If there has been a jurisdictional error, then the decision cannot properly be described as a decision made under this Act -- and is thus not a privative clause decision as defined in subsections 474(2) and (3) of the Act. Further, a decision flawed due to failure to comply with the principles of natural justice is also said not to be a privative clause decision within s.474(2). If there is no jurisdictional error affecting the Tribunal's decision, then the decision would be a privative clause decision and protected by s.474(1) -- unless it was shown that one of the Hickman provisos had not been met. In Plaintiff S157/2002, the High Court confined itself to a general statement of principle in relation to jurisdictional error, and the particular issue of jurisdictional error by reason of a denial of procedural fairness as asserted by the Plaintiff. The precise scope of the notion of jurisdictional error in this context, and the determination of which provisions in the Migration Act constitute inviolable limitations or restraints, raises some complex issues (see, for example, Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134/2002 [2003] HCA 1 -- in relation to s.65 of the Migration Act).

33. The very general grounds relied upon by the applicant provide no indication of the real basis upon which he asserts that the decision of the RRT cannot stand.

34. It is apparent from an examination of the RRT's decision that it gave careful consideration to the applicant's assertions and concerns.

35. I have re-read the RRT's decision carefully -- and somewhat anxiously, having regard to the period of time and the developments in the law since this matter came before me. I am unable to identify any basis upon which the RRT's decision can be interfered with. The RRT acted in good faith, its decision is reasonably capable of reference to the power given to it, its decision relates to the subject matter of the legislation and there can be no suggestion that any relevant constitutional limits were exceeded.

36. Further, in my opinion there is no apparent breach of procedural fairness which could amount to jurisdictional error.

37. To the extent that the applicant asserts that there were "mistakes or errors" made by the interpreter in the initial interview, or at other times, I am of the opinion that such inaccuracies could not realistically have had any impact whatsoever on the eventual outcome of the proceedings.

38. The applicant's complaint (described in paragraph 28 above) to the effect that the RRT focussed unduly or improperly on his conversion to Christianity might be interpreted -- it seems to me -- as a submission to the effect that the RRT was biased in reaching its decision (and that it did not, therefore, make a bona fide attempt to exercise its power). In my opinion, such an assertion (as a ground of review) cannot be sustained in the circumstances of this case.

39. In Minister for Immigration and Multicultural and Indigenous Affairs v SBAN 2002 FCAFC 431, the Full Court of the Federal Court (in the appeal relating to MIMA v WAAG) dealt with an assertion that the RRT held preliminary views regarding male homosexuals, and that these views led to bias and/or prejudgment on its part. In upholding the Minister's appeal, the Full Court said (at paragraph 65):

Where a claim for refugee status is based on grounds such as religion, membership of a particular social group or political opinion it is understandable that the RRT might test the veracity of the claim by reference to knowledge or attitudes which members of the relevant religion, social group or political party might be expected to possess. As a matter of common sense, this is a perfectly legitimate fact finding technique for an administrative decision maker. To take an example removed from the facts of the present case, if an applicant claimed a fear of persecution on the grounds of being a Catholic, the RRT might test the assertion by inquiring as to the applicant's knowledge of Catholic doctrine, ritual, traditional belief and the like. It may be that the Tribunal member's understanding of such matters is in fact inaccurate. Or at the other extreme the Tribunal member may be correct but may assume a detailed knowledge that it would not be reasonable to expect of the average Catholic. These errors, however, would at worst provide grounds for criticism of the fact finding process. They would not in themselves be suggestive of bad faith or the imposition of some illegitimate "template".

40. The passages from the RRT's decision that have been quoted above accord with the approach selected as an example by the Full Court in the paragraph to which I have referred. For all that I have some discomfort with the robustness of the approach adopted by the RRT to the question of the applicant's knowledge of and genuine commitment to Christianity (and, in particular, Catholicism), this approach would not appear to extend beyond a matter of "personal style" (which is a matter for the individual Tribunal member). It cannot be said that the consideration given by the RRT to the applicant's claim was other than genuine and thorough. Further, it is apparent that the applicant was not being "trapped or set up"[1].

41. In my view, it also goes without saying that the fact that the RRT may not have asked the applicant the questions which he may have considered relevant to his Visa application cannot -- without more -- amount to a denial of procedural fairness in any relevant sense. It is apparent from the lengthy and detailed reasons provided by the RRT, and its reference to earlier stages of the Visa application process, that the RRT was fully cognisant with the applicant's case.

42. In my opinion, it has not been established that the RRT made any relevant error of law, that it failed to take into account relevant considerations or that there was some other jurisdictional error. The RRT's reasons reveal that it did consider the merits of the application. It made findings that were reasonably open to it on the material before it based on credibility findings and the assessment of the applicant's claims.

43. For the preceding reasons, the grounds for review (to the extent that they can be identified from the material now before the Court) must fail, and the application must be dismissed with costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Walters FM

Associate: Paul O'Halloran

Date: 7 April 2003


[1] See MIMA v SBAN 2002 FCAfc 431 at paragraph 66
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