Szbel v Minister for Immigration and Multicultural and Indigenous Affairs

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Kirby,Hayne,Callinan,Heydon JJ
• Judgment Date: 15 December 2006
• Neutral Citation: 2006-1215 HCA B,[2006] HCA 63
• Court: High Court
• Docket Number: S274/2006
• Date: 15 December 2006

[2006] HCA 63

HIGH COURT OF AUSTRALIA

Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ

S274/2006

Szbel

Appellant

and

Minister for Immigration and Multicultural and Indigenous Affairs & Anor

Respondents

Representation

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

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

Submitting appearance for the second respondent

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

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs

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

Words and phrases — ‘issues arising in relation to the decision under review’, ‘procedural fairness’.

ORDER

1. Appeal allowed with costs.

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

• (a) appeal allowed with costs; and

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

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

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

1 Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. In 2001 the appellant was employed as a seaman on a ship of the Islamic Republic of Iran Shipping Line. On 7 April 2001, he jumped ship in Port Kembla and 10 days later he applied for a protection visa 1. A delegate of the respondent Minister refused 2 to grant the appellant a protection visa. The appellant sought 3 review of that decision by the Refugee Review Tribunal 4.

2 The appellant had made a statutory declaration setting out the facts upon which he relied in support of his application for a protection visa. In that declaration he described why he had jumped ship. He said he feared for his safety because the captain of his ship knew of his interest in the Christian religion.

3 The Tribunal wrote to the appellant telling him that it was unable to make a decision in his favour on the information he had supplied, and invited him to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review 5. The appellant took up this invitation and appeared before the Tribunal in February 2003. The Tribunal member began proceedings by telling the appellant that on reading all of the material, she was not able to be satisfied that the appellant qualified for a protection visa. The Tribunal member then asked the appellant questions that elicited from him the same description of events as he had given in his statutory declaration. At no stage did the Tribunal challenge what the appellant said, express any reaction to what he said, or invite him to amplify any of the three particular aspects of the account he had given in his statutory declaration, and repeated in his evidence, which the Tribunal later found to be ‘implausible’. Rather, the first that the appellant knew of the suggestion that his account of events was implausible in these three respects was when the Tribunal published its decision.

4 Did the courts below err in holding that the Tribunal had not denied the appellant procedural fairness?

5 Before considering what are the relevant principles to be applied in deciding that issue, it is necessary to say more about the course of decision-making in this case that lies behind the appeal to this Court.

The appellant's application for a protection visa

6 On 17 April 2001, the appellant's then migration agent sent the appellant's Application for a Protection (Class XA) visa to the Minister's Department. The agent asked the case officer ‘to withhold from making a decision’ on the matter, for three weeks, so that the appellant's ‘statement of claims’ could be translated. The agent said that the appellant believed that ‘he has been persecuted by the Iranian authorities due to his religious faith and imputed political opinion’.

7 The statement of claims to which the agent had referred was submitted, in the form of a statutory declaration by the appellant, on 2 May 2001. In that statutory declaration the appellant spoke of being invited in 1996, by a Filipino seaman serving on the same ship as the appellant, to attend a Christian service while the ship was in port at Dubai. He said that over the next four years the ship would often dock in Dubai and that, when it did, he would return to the church he had first attended in 1996 and that, as well, he ‘made every effort to attend Christian churches in the [other] countries we stopped at’.

8 The appellant described a series of events in December 2000 when he was seen by some members of his ship's crew coming out of a Christian church in an Argentinian port, confronted by them, taken back to his ship, and there berated by the senior Iranian officer. He said he ‘was allowed to leave with a warning that if [he] displayed any interest in Christianity, it would lead to the termination of [his] employment’.

9 In his statutory declaration the appellant described the events preceding his jumping ship in Australia. The events described were said to have occurred between 15 February 2001 (when he left his ship in its home port in Iran to travel home for some weeks) and 7 April 2001 (when he jumped ship in Port Kembla). The description was set out in 10 paragraphs of the statutory declaration occupying about three pages of double spaced typescript.

10 The description contained three elements of present importance. It is these three elements of the appellant's account which the Tribunal was later to find were implausible. First, he described returning to his home for medical treatment in February 2001, meeting four of his friends (whom he named) and telling them of what he had learned about Christianity:

‘I told them what I had read in the Bible, and that I had spent some time in Argentina with other Christians. I told them about the other churches I had visited in Brazil and South Africa. I wanted to tell them everything I had learned, and how different it all was to Islam.’

His friends ‘indicated that they were disturbed by what [he] was telling them’. They urged him ‘to renounce this heresy, and to embrace Islam’. A few days later he began to receive threatening telephone calls at home, accusing him of apostasy.

11 The second element of present importance in the appellant's account was that, after he had returned to his ship on 9 March 2001, but some weeks after it had sailed on 11 March 2001, he was called before the captain. His statutory declaration continued:

‘The captain had heard about the rumours that were circulating in my home town. One of the other crew members had informed him of the ostracism that I had experienced there. Once I heard this, I knew that I was in a lot of trouble. The captain began by demanding to know why I continued to behave like a deviant, and whether the rumours were true. He asked me if I was a Christian. I denied that I was a Christian. But again, the captain did not believe me. He told me that as soon as the ship returned to Iran I would be dealt with accordingly. Until we returned to Iran I would continue with my duties, but I would be supervised at every moment.’

The appellant described his increasing fear for his safety, after this interview, as the anger of the Iranian crew grew. ‘They [the crew] could not understand why the captain did not lock me up on the ship. They considered me a criminal, and a disgrace.’

12 The third element of present importance in the appellant's account of events concerned his being allowed off the ship on 6 April 2001 to visit a doctor in Port Kembla. Of this the appellant said:

‘The constant psychological and mental harassment on board the ship had made me very sick. I was in constant pain. I sought permission to get medical attention, and I believe that the Captain only allowed this out of fear that I may die on board of the ship and therefore become his responsibility. I was granted permission to seek medical attention in Australia. I knew that I had to find a way off the ship: I was petrified that I would be dead by the time the ship returned to Iran. The harassment by the crew was getting worse, and I was completely at the mercy of the other crew members who considered me an apostate.’

The delegate's decision

13 The delegate was not satisfied that the appellant was a person to whom Australia had protection obligations under the Refugees Convention 6. The delegate concluded that he was not satisfied that the appellant ‘has a genuine...