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MIGRATION - Protection visa application - conversion to Christianity sur place - Tribunal not satisfied under s.91R(3) - attempt to substitute Court's reasoning for that of the Tribunal - no lack of bona fides found in decision.

NAQS v Minister for Immigration [2002] FMCA 301 (19 November 2002)

NAQS v Minister for Immigration [2002] FMCA 301 (19 November 2002)
Last Updated: 28 November 2002


[2002] FMCA 301

MIGRATION - Protection visa application - conversion to Christianity sur place - Tribunal not satisfied under s.91R(3) - attempt to substitute Court's reasoning for that of the Tribunal - no lack of bona fides found in decision.

Migration Act 1958 (Cth), ss.91R(3), 420(2)(b)

NAAH v Minister for Immigration [2002] FCAFC 354

WAAK v Minister for Immigration [2002] FMCA 86

NAAV v Minister for Immigration [2002] FCAFC 228




File No:

SZ 633 of 2002

Delivered on:

19 November 2002

Delivered at:


Hearing Date:

19 November 2002

Judgment of:

Raphael FM


Solicitors for the Applicant:

Michael Jones

Counsel for the Respondent:

Mr J Smith

Solicitors for the Respondent:

Clayton Utz


(1) Application dismissed.

(2) Applicant to pay the respondent's costs in the sum of $4,400.00.




SZ 633 of 2002








1. The applicant in this matter is an Iranian citizen who, together with her two children, arrived in Australia on 6 February 2001. On 28 February 2001 an application for a protection (class XA) visa was lodged with the Department of Immigration & Multicultural Affairs under the Migration Act 1958 on behalf of all three. On 13 August 2001 a delegate of the Minister refused to grant protection visas and on 18 September 2001 the applicant applied for a review of that decision.

2. The review was carried out on 12 February 2002 after an adjournment at the request of the applicant. The Tribunal made its decision on 18 June 2002 and published that decision on 10 July 2002. It is against that decision that the applicant seeks a review from this court.

3. The applicant's claims for review are within a short compass. As deposed to in the affidavit supporting the application, they are:

"(a) The Tribunal discounted the applicant's claim about having converted to Christianity for the reason that it had found other claims made by the applicant to be without foundation. The Tribunal's reasoning was illogical to the extent that it failed to give proper consideration to the claim that the applicant was a person to whom Australia had protection obligations.

(b) There was no evidence before the Tribunal on which it could have come to the conclusion that the applicant's conversion to Christianity was conduct within the meaning of section 91R(3) of the Migration Act 1958."

4. These two grounds are connected. The factual matrix in which they occur is that on the day of the hearing before the Tribunal the applicant produced a letter from the Iranian Evangelical Church which certified that the writer, Pastor Addison Sarkisian, had known the applicant and her two sons for over two months and then went on to say:

"This family shows a very keen and genuine interest in Christianity. The applicant regularly attends our Sunday services, bible studies and prayer meetings. She shows interest and willingness to participate in our activities and has made acquaintances with the church members. She also brings her children to Sunday school and they show willing interest as participating students."

5. The letter goes on to refer to the applicant being on a course destined for baptism. This claim for conversion was utilised by the applicant before the Tribunal to place her within a class of persons for whom it was claimed protection obligations existed, namely apostates from the Muslim religion returning to Iran. (These are my words rather than the exact words used by the Tribunal.) The country information provided in the court book clearly indicates that in certain circumstances such persons are liable to persecution for what must be a Convention reason.

6. The Tribunal came to the conclusion that it was not satisfied that the applicant had not engaged in the decision to convert to Christianity "otherwise than for the purpose of strengthening her claim to be a refugee". That is something about which the decision maker must be satisfied pursuant to section 91R(3) of the Migration Act because if he or she is not so satisfied then he or she must disregard any such conduct engaged in by an applicant in Australia.

7. The applicant argues that the Tribunal's failure to achieve satisfaction was illogical and that it was based on no evidence. Indeed, she says, the only evidence is favourable to her, being the letter I have previously referred to which is found at page [53] CB.

8. The Tribunal in its decision indicated that there were two reasons why the required state of satisfaction under section 91R(3) had not been achieved. The first was that the Tribunal had previously in its reasons indicated that it had problems with the credibility of the applicant. The second was that this suggested conversion had only come about at what was described as "the heel of the hunt", namely shortly before the hearing was due to take place.

9. Counsel for the respondent noted in a helpful chronology, that the applicant had been in the country for nearly a year by the time reference to a change of religion was made a reason for her well-founded fear of persecution. The applicant's solicitor says that on the contrary, the time delay shows a genuine act on the part of the applicant. She would have been more suspicious, he suggests, if the conversion had come immediately after her arrival.

10. It seems to me that in this contradiction lies the very nub of the problem. The Tribunal is charged with making decisions of fact and this decision as to the genuineness or otherwise of the conversion is very much a matter of fact. It is a matter of fact upon which there is more than one view and it is not open for the court to substitute its view for that of the Tribunal.

11. The Full Bench of the Federal Court in NAAH v Minister for Immigration [2002] FCAFC 354 said at [27]:

"For a court to set aside a negative decision on the basis that a reasonable decision maker ought to have achieved the requisite level of satisfaction on the material that was before the actual decision maker will be to travel far beyond any of the well established circumstances in which courts can set aside administrative decisions. In effect, it would be to substitute the court's view of the facts for that of the decision maker, a course traditionally regarded as not open to courts."

12. I am satisfied that the decision which the Tribunal came to was open to it on the basis of both of the reasons that it gave. To substitute a view of the facts which I have gained from reading the court book would be entirely inappropriate.

13. Once the Tribunal has failed to reach the state of satisfaction required by section 91R(3) the whole question of the applicant's conversion falls away. It really isn't a matter for consideration any more, and to that extent the second point raised by the applicant is, to my mind, otiose. The point she raised was that section 420(2)(b), which required the Tribunal to "act according to substantial justice and the merits of the case" was more than an exhortatory statement and in fact formed what Federal Magistrate Driver in WAAK v Minister for Immigration [2002] FMCA 86 described as:

"an overarching principle to guide the RRT in all cases [35]."

And at [36]:

"The overarching principle thereby established imports the fundamental requirements that the RRT deal with cases individually on their merits and not on the basis of any prejudgment about the merits of an application ... In my view, this fundamental requirement is an essential requirement of the Migration Act and a breach of it will vitiate a decision notwithstanding the privative clause."

14. I take the view that section 420 is not a section that can be ignored, but I prefer those views which suggest that section 420(2)(b) is something that should now be considered as a guide to the bona fides or otherwise of a decision. I am unable to accept, given the decision of the Full Bench in NAAV v Minister for Immigration [2002] FCAFC 228, that it has quite the effect suggested by Federal Magistrate Driver.

15. I would therefore not find that section 420 is what Von Doussa J in NAAV described as "an inviolable limitation on the power of the Tribunal". I think there is much to be said for Mr Smith's submission that an inviolable condition must come before the review and section 420 refers in subparagraph (2) to "the Tribunal, in reviewing a decision:"

16. For these reasons I am unable to find that the Tribunal erred in law in the manner in which it came to the decision in this case. I must dismiss the application and I will order that the applicant pay the respondent's costs.

17. I note that this matter was the subject of an interlocutory hearing before Federal Magistrate Driver in which the costs were reserved. The order in respect to costs which I make is that the costs will be assessed in accordance with the Federal Magistrates Court's rules in the sum of $4,000.00 for the hearing together with $400.00 for the interlocutory application, a total of $4,400.00

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM


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