FEDERAL COURT OF AUSTRALIA "O" v Minister for Immigration & Multicultural Affairs [2000] FCA 265 MIGRATION – application for protection visa – claim of well-founded fear of being persecuted for reasons of nationality and political opinion – relocation – whether Tribunal had based its decision on non-existent fact – whether the Tribunal made an error of law. Migration Act 1958 (Cth) ss 430, 476 Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741, cited Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681, cited Li Shi Ping and Anor v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225, considered Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100, considered Mohammed v Minister for Immigration and Multicultural Affairs [1999] FCA 868, distinguished "O" v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1288 OF 1999 SUNDBERG, KATZ and HELY JJ 13 MARCH 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1288 OF 1999 BETWEEN: "O" APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGES: SUNDBERG, KATZ and HELY JJ DATE OF ORDER: 13 MARCH 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1288 OF 1999 BETWEEN: "O" APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGES: SUNDBERG, KATZ and HELY JJ DATE: 13 MARCH 2000 PLACE: SYDNEY REASONS FOR JUDGMENT OF THE COURT BACKGROUND 1 The appellant is a Kurdish Iranian. He arrived in Australia without a passport on 1 May 1999 and has since been held in detention. On 10 May 1999 he applied for a protection visa. His application was refused by a delegate of the respondent, and that refusal was upheld by the Refugee Review Tribunal. His application for review of the Tribunal's decision was dismissed by Moore J, and this appeal is from that decision. THE APPELLANT'S CLAIMS 2 The appellant claimed that he was persecuted by the authorities in Iran on account of his Kurdish ethnicity. The appellant and his father had made donations to the Kurdish Democratic Party of Iran (KDPI). The appellant's uncle had belonged to the "KDP freedom fighters", and because of this had been arrested and killed in 1996. The appellant also claimed that his father had worked for SAVAK, a secret police force of the Shah of Iran, and that he and his family were therefore persecuted by the subsequent regime. In particular, the appellant's father had killed the son of a religious leader in 1978, and in 1985 the father was arrested and imprisoned for eight years. After the appellant's father was released from prison in 1993, the appellant and his father were harassed by the authorities. They were arrested and accused of being involved in political plots against the government, and were severely beaten. The appellant also feared persecution on the grounds that he was a Christian who had converted from the Islamic faith. OTHER EVIDENCE BEFORE THE TRIBUNAL 3 The Tribunal had before it information derived from the Department of Foreign Affairs and Trade, as well as a US Department of State Report: Iran Country Report on Human Rights Practices for 1998 ("the 1998 State Department Report") which, amongst other things, discussed the position of Christians in Iran. THE TRIBUNAL'S DECISION 4 The Tribunal accepted that the appellant was Kurdish, but did not accept that he had been harassed and persecuted by the authorities in Iran on this basis. Nor did it accept the appellant's claims regarding his uncle's involvement in the KDPI, and the appellant's role in making donations to the KDPI. The Tribunal did not consider the appellant a witness of truth. He had significantly changed his claims since his original interview at Sydney airport, and in the Tribunal's view was prepared to alter and embellish his evidence if he believed that to do so might be to his advantage. The Tribunal did, however, accept that the appellant's father had worked for SAVAK and had killed the son of a religious leader. The Tribunal also found that if the appellant were to return to Iran he might face some prejudice on the part of the local authorities in his father's home town as a result of his father's past history. However, the Tribunal found that the appellant was not of interest to the government of Iran generally, and would therefore be able to avoid such harassment by relocating to another part of Iran. 5 The Tribunal accepted that the applicant was a Christian who had converted from the Islamic faith. However, taking into account evidence from the Australian Department of Foreign Affairs and Trade and the 1998 State Department Report, the Tribunal found that while converts to Christianity face some harassment in Iran, this falls short of "persecution" for the purposes of the Convention. PRIMARY JUDGE'S DECISION 6 The grounds of review argued before the primary judge were that the Tribunal: · failed to deal with the appellant's submissions and evidence that he could not relocate to another place in Iran, as required by s 430 of the Migration Act 1958 (Cth) ("the Act"); · failed to deal with the claims made in the 1998 State Department Report about the treatment of Muslim converts to Christianity, as required by s 430 of the Act; · based its decision on a fact that did not exist, namely that Muslim converts to Christianity are legally permitted to practise their religion in Iran (pars 476(1)(g) and (4)(b)); · made an error of law in failing to consider whether the appellant had a genuine fear of persecution arising out of a radio interview he gave while in Australia. In relation to the fourth ground, the primary judge observed that: "The submissions made by counsel for the applicant on this ground were formal only. I understood counsel for the applicant to accept that I would be bound to apply the decision of the Full Court in Li Shi Ping and Anor v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 notwithstanding observations of Lee J in Mohammed v Minister for Immigration and Multicultural Affairs [1999] FCA 868 that counsel for the applicant thought might support the ground." The primary judge concluded that none of the other grounds of review had been made out. On the appeal the appellant contended that his Honour erred in rejecting the first, third and fourth of the grounds. RELOCATION 7 The primary judge appears to have assumed that a failure to comply with subs 430(1) is a ground of review under subs 476(1), presumably par (a) thereof. We will assume, without deciding, that it is. Compare Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741 (Whitlam, RD Nicholson and Gyles JJ; unreported; 17 December 1999) with Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 (Heerey, Merkel and Goldberg JJ; unreported; 2 December 1999). 8 The appellant's complaint is that the Tribunal did not deal with his submissions and evidence to the effect that he could not relocate to another place in Iran because the authorities would eventually learn of his family's connection with the Shah's regime and resume their harassment of him. The appellant's evidence was to the effect that the Iranian system was closely regulated, and so the authorities would identify him wherever he went. The persecution would therefore continue. In relation to the issue of relocation, the Tribunal said: "I am prepared to accept that, if the Applicant returns to Iran now or in the foreseeable future, he may continue to face some prejudice on the part of the local authorities in his home town as a result of his father's past history as a SAVAK agent. However I consider that it would be reasonable in these circumstances to expect the Applicant to relocate to some other part of Iran, for example to Tehran, where he has his maternal uncle who has apparently been prepared to assist him in the past." In addition to this, the Tribunal repeatedly indicated that it did not accept that the appellant was of general interest to the government of Iran. The Tribunal based this conclusion on the fact that the appellant had been able to leave Iran without problems: " …for reasons given above I do not consider it plausible that someone of interest to the Government could bribe their way through the airport in Tehran and effect their departure, as the Applicant claims to have done … Once again I prefer the advice of the Australian Department of Foreign Affairs and Trade that travel out of Iran through legal exit points is a reliable indication that a person is of no particular adverse political or security interest." 9 The primary judge found that: " … the Tribunal has dealt adequately with and in conformity with s 430 the claim of the applicant that he could not relocate. The clear import of the Tribunal's decision is that the applicant was contending that he would be of interest because of his family background were he to relocate. The Tribunal found, as it was entitled to, that he was not of interest generally and any interest in him derived from the knowledge within the local community of his father's history." We see no error in this approach. The Tribunal concluded that although the appellant may have been harassed by authorities in his local area, he was not of interest to the government of Iran generally. It follows from this conclusion that the appellant would not experience persecution if he relocated from that area. The Tribunal did not accept the appellant's contention that he was of interest to the government of Iran, which was the basis for his contention that he could not relocate. It gave reasons for its decision on the relocation issue. It set out its findings on the issue. It referred to the evidence on which it based its conclusion that the appellant was not of interest to the government, and it explained why it did not accept the appellant's contention that he was at risk wherever he went in Iran. NON-EXISTENCE OF FACTS 10 It was contended that the Tribunal erred in finding that the 1998 State Department Report indicated that Muslim converts to Christianity are legally permitted to practise their religion in Iran. It was said that, on the contrary, the report indicated that converts who did practise their religion were persecuted, often prosecuted, sometimes disappeared and were liable to be punished by death. In order to make out this ground, the appellant must demonstrate that the "fact" on which the Tribunal's decision was based does not actually exist. See par (4)(b). That is to say, he must show that the 1998 State Department Report does not in fact indicate that converts are legally permitted to practise their religion. The Report states that: "(The constitution) recognizes Jews, Christians, and Zoroastrians as 'protected religious minorities' … Christians, Jews, and Zoroastrians legally are permitted to practice their religion and instruct their children, but may not proselytize Muslims." 11 The primary judge, referring to this passage, said: "It is comparatively plain from these passages that the report does indicate that Christians, including Muslim converts, are legally permitted to practice their religion. It is true that the report elsewhere speaks of the harassment of Christians and states that apostasy, or conversion from Islam to another religion, may be punishable by death. However, the statement of the Tribunal, limited as it is to what is legally permissible, does reflect what is said in the report." We agree with his Honour's view on this point. ERROR OF LAW 12 It was submitted that his Honour erred in not dealing with a formal submission that the Tribunal had made an error of law by failing to consider whether the appellant had a well‑founded fear of persecution arising out of a radio interview with him broadcast in Australia. There is a clear line of Full Court authority to the effect that conduct engaged in outside an appellant's country of nationality for the sole purpose of creating a pretext for a well-founded fear of persecution should not be taken into account. See, for example, Li Shi Ping and Anor v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 (Sheppard, Gummow and Carr JJ) and Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 (Keely, Jenkinson and Gummow JJ). The Tribunal said: "I consider that the Applicant made these comments [in the interview] solely to obtain an advantage in the processing of his application for a protection visa. It is well‑established that actions taken outside an applicant's country of nationality which were undertaken for the sole purpose of creating a pretext for invoking a claim to a well‑founded fear of persecution should not be considered as supporting an application for refugee status: see Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) [sic] 31 FCR 100. At the hearing before me the Applicant denied that this had been his intention but I consider that the way in which the Applicant took care to have the comments taped, transcribed and translated for presentation to the Tribunal suggests otherwise. Having regard to the principle established in Somaghi, referred to above, I do not consider that the Applicant's comments can be accepted as supporting his claims to have a well‑founded fear of being persecuted if he returns to Iran." As we have said, the primary judge regarded himself as bound to apply Somaghi. Counsel for the appellant did not seek to persuade his Honour to the contrary, accepting that he was bound by Somaghi. It is thus hardly fair for the appellant to complain that his Honour failed to deal with the formal submission. This is not the occasion to decide whether Mohammed v Minister for Immigration and Multicultural Affairs [1999] FCA 868 (Lee J; unreported; 28 June 1999) is consistent with Somaghi and Li Shi Ping. That can wait a case in which both sides are able to present argument on the point. Assuming Mohammed to be consistent with the Full Court decisions, it is distinguishable from the present case. In Mohammed the applicant had sent a letter to his brother in Sudan in which he disclosed his unsuccessful application for refugee status, his refusal to do military service in Sudan, his desire not to return to Sudan, and his lack of support for the political system there. The letter was intercepted by the Sudanese authorities who arrested the applicant's brother and questioned him about the applicant. The Tribunal, relying on Somaghi, declined to take the sending of the letter into account. Lee J held that it was in error. His Honour said: "In some cases, albeit extraordinary, fraudulent activity by an applicant for refugee status may, in itself, attract malevolent attention from authorities in the country of nationality, giving rise to a well‑founded fear that serious harm will occur if that person is returned. In such cases, a determination must be made whether that person is to be accorded refugee status. [28] … If, perchance, it could be concluded that the applicant engaged in a subtle form of fraud by sending a letter to his brother at about the time a group of Sudanese swimmers 'defected' in Australia, being an event which caused Sudanese authorities to intercept mail from Australia, that conclusion did not relieve the decision‑maker of the task of determining whether the consequences which may flow from that conduct gave the applicant the status of a refugee." [29] Mohammed is in two respects different from the present case. First, Mohammed's letter to his brother had come to the attention of the authorities, who as a result had reacted adversely to the applicant's family and expressed an interest in Mohammed's whereabouts. In the present case there was no evidence before the Tribunal that the radio interview had come or was likely to come to the attention of the Iranian authorities. Secondly, in Mohammed, as Lee J said, the Tribunal did not find that the applicant had written the letter to make more plausible, or colourable, a pretended claim to a well‑founded fear of persecution. In the present case there was such a finding. For those reasons Mohammed is of no assistance to the appellant. CONCLUSION 13 The appeal must be dismissed. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 13 March 2000 Counsel for the Appellant I McClusky Counsel for the Respondent: T Reilly Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 29 February 2000 Date of Judgment: 13 March 2000