FEDERAL COURT OF AUSTRALIA Mashayekhi v Minister for Immigration & Multicultural Affairs [2000] FCA 321 IMMIGRATION – Protection visa – Fear of religious persecution by reason of conversion to Christianity in Iran – Relevance of cultural and religious difference to adverse credibility findings Migration Act 1958 (Cth) – s 476(1)(g) Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 - cited Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 547 - considered SASAN MASHAYEKHI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS VG 0077 of 1999 JUDGE: MERKEL J DATE: 22 MARCH 2000 PLACE: MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 0077 OF 1999 BETWEEN: SASAN MASHAYEKHI APPLICANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MERKEL J DATE OF ORDER: 22 MARCH 2000 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's taxed costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 0077 OF 1999 BETWEEN: SASAN MASHAYEKHI APPLICANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MERKEL J DATE: 22 MARCH 2000 PLACE: MELBOURNE REASONS FOR JUDGMENT Introduction 1 The applicant, a citizen of Iran, arrived in Australia on 2 November 1998. He applied for a protection visa on the ground that he was a refugee and therefore a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the 1967 Protocol relating to the Status of Refugees ("the Convention"). His application was refused and the refusal was affirmed by the Refugee Review Tribunal ("the RRT"). The applicant has applied to the Court for the review of the decision of the RRT under Part 8 of the Migration Act 1958 (Cth) ("the Act"). Background 2 The applicant claimed that he was a refugee as defined in Art 1A of the Convention, and therefore a person to whom Australia has protection obligations, on two grounds. The first ground was that he had a well-founded fear of political persecution by reason of his activities in an anti-government movement known as the People's Mujaheddin Organisation of Iran. The RRT did not accept the applicant's account of those activities and rejected his claim to refugee status on the ground of political persecution. The review of the decision on that ground was not pressed at the hearing. 3 The applicant also claimed a fear of religious persecution by reason of his conversion to Christianity. The applicant claimed that he converted to Christianity in Iran and would be liable to be executed as an apostate if the Iranian authorities discovered the conversion. The conversion was said to have occurred after the applicant and his Armenian friends held meetings at the applicant's house during which they discussed Christianity and read the Bible. As a result of those activities the applicant claimed that he was baptised into the Christian faith. The RRT did not accept the applicant's account of his conversion to Christianity and rejected the claim to refugee status on the ground of religious persecution. 4 Primarily, counsel for the applicant contended that the RRT had based its decision on the existence of a particular fact, the conversion of the applicant to Roman Catholicism, that did not exist: see ss 476(1)(g), 476(4)(b) and Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-221. Counsel relied on the transcript of the hearing before the RRT, and its decision, to contend that the RRT acted on the basis that the applicant's conversion was to Roman Catholicism whereas, in fact, his conversion was to Christianity. As a related issue the applicant also challenged the adverse credibility findings of the RRT on the basis that they were also based on the erroneous assumption that he claimed that he converted to Roman Catholicism. The RRT's decision 5 The RRT summarised its conclusions in relation to the applicant's alleged political involvement as follows: "While one or two minor inconsistencies in the Applicant's story may have merely been a consequence of nervousness or the passage of time, the Applicant has made several inconsistent statements about material issues in various submissions that, taken together, indicate he has fabricated his story that he was a political activist on behalf of the PMOI." 6 The RRT then considered whether the applicant faced persecution on the basis that he had converted to Christianity. The RRT concluded: "The Applicant says he has been a converted Christian for many years, but he does not know the Lord's Prayer. Nor did he know the names of any of the Disciples. As pointed out by the delegate, the Applicant was also deficient in knowledge of some parts of the Bible, despite claiming to have twice read it in its entirety and reading some parts more than twice, as well as access to abridged versions of Bible stories. While he was restricted by language, that does not explain total lack of knowledge in regard to the names of the Disciples and the names of the books in the Bible. Although he has been in detention in Australia, he appears not to have made any real effort to pursue the faith to which he says he has converted. He knows there are two priests who visit the IDC and said he has spoken to one who is "Egyptian" although he does not know his denomination. Despite the limited opportunities, his failure to seek further guidance and knowledge about his claimed faith supports a conclusion that he has not converted to Christianity. The Tribunal does not accept the submission that having some knowledge of Christianity demonstrates that the Applicant has converted to that religion. It is common knowledge that people of various religions or atheists or agnostics may have some interest in or knowledge of other religions. It does not follow that they are devotees of the faith of which they have some knowledge. The Tribunal accepts that the Applicant has some knowledge of Christianity, but he has embellished that knowledge by claiming he is a convert. It does not accept that he was baptised into the Catholic church or any other Christian church, or that he is a practising or non-practising Christian." 7 Summarising its findings the RRT stated: "In considering the totality of the Applicant's claim and the evidence before it, the Tribunal found that the Applicant was not a reliable witness in assessing facts that are material to his case. It does not accept that he was affiliated with the PMOI or that he was suspected of such an affiliation. Nor does it accept that he is a convert to Christianity. It finds that he does not have a well-founded fear of persecution for those or for any other Convention reason. It is satisfied that he is not a person to whom Australia has protection obligations and does not meet that criterion for the purposes of granting a protection visa." Was the RRT's decision based upon a fact that did not exist? 8 The answer to the applicant's case on this ground is that the RRT based its decision on the claim by the applicant that he had converted to Christianity, rather than on a claim that he had converted to Roman Catholicism. Thus, the premise upon which the applicant relies has not been made out. In order to establish that premise counsel for the applicant relied upon passages in the transcript of the hearing rather than on the reasons for decision. In its reasons for decision the RRT accepted that a fear of religious persecution by reason of being an apostate would be well founded if the applicant had, in fact, converted to Christianity. On that issue the RRT, based on its adverse findings as to the applicant's credit, did not accept that the applicant had converted to Christianity. Credibility 9 In Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 547 a Full Court considered the difficulties confronting a refugee claimant wishing to challenge adverse findings on credibility issues. The Court observed: · there can be no error of law where a tribunal makes findings on credibility issues that were open on the material before it after consideration of matters that were logically probative of the issue of credibility (at 552 and 559); · the tribunal can be expected to be sensitive to the special considerations that arise in relation to assessing credibility of refugee claimants (at 557-559); · ultimately, the tribunal's role is to determine whether, on the totality of the material available to it, it was satisfied that the applicant is a person to whom Australia has protection obligations under the Convention (at 556). 10 The applicant has not demonstrated that the adverse credibility findings of the RRT were not open on the material before it. Once it is accepted that, in its reasons for decision, the RRT approached the credibility issues on the basis of a claim by the applicant of his conversion to Christianity, rather than Roman Catholicism, the challenge to the credibility findings made by the applicant on that ground amounts to an impermissible endeavour to reargue the matter on the merits. I would add that counsel for the applicant relied upon some passages in the transcript that were not relied upon or referred to by the RRT in its reasons for decision. Obviously, there are significant difficulties in such an approach as the reasons for decision, rather than the transcript, is the repository of the reasoning employed by the RRT in arriving at its decision. Cultural and Religious Sensitivities 11 Although the RRT may not have erred in law in its decision, it does not follow that the procedures it adopted in reaching that decision were fair or just. The applicant's evidence was that his interest in Christianity arose as a result of his friendship and association with Armeman Christians who informed him about Christianity and asked him to convert. His explanation of his conversion was as follows: "MR VRACHNAS: Well, it is your conversion. How did you – what made you convert to Christianity? THE INTERPRETER: Before I became converted to the Christianity I was Muslim but I had quite a few Armenian friends that I was associating with them. There are all my old – our old neighbours and they were nearly between three to four years older than me and we were associating almost every day. And I asked them specifically to teach me, to tell me something about Christianity because they were Christian. They were Armenian Christians, and they told me about the Christianity. MR VRACHNAS: What denomination are Armenian Christians? THE INTERPRETER: They were Catholics. After about several week of studying and getting information about the Christianity from my friend, they invited me to become a Christian, they asked me to become a Christian. Following my own independent research I realised that if I become a Christian I will have – I will start a new life whereby the divine spirit or soul would be within me. And I realised that by becoming a Christian and by becoming baptised my past sin and ill doing will be – would be washed out and I will start a new life altogether. At the time I was almost 20 years of age when I decided to become a Christian and they invited one of the priest to come to our house for the process – they invited the priest to come my Armenian friends to arrange for my baptism. MR VRACHNAS: So what denomination was the priest? THE INTERPRETER: I think he was also a Catholic priest. Then I went to my friends and the priest also came to their place, they baptised me and I become officially Christian. MR VRACHNAS: Officially a Catholic? THE INTERPRETER: To me the Catholic is not a big issue. All I know, that I become a Christian and my source of information was Bible." 12 Without seeking any real clarification from the applicant as to his understanding of Christianity and Catholicism the RRT proceeded to ask a series of questions (some of which were referred to in the decision) that would be relevant to ascertaining the genuineness of a conversion to Roman Catholicism in Australia, but which may be problematic in respect of the conversion in Iran attested to by the applicant. Nevertheless, the deficiencies in the answers given by the applicant to many of those questions were used by the RRT against the applicant on the issue of credibility. 13 In its decision the RRT, without explaining the basis for its knowledge of such matters, stated that: · it did not accept that a Catholic priest in Iran would baptise the applicant after a few weeks training with his Armenian friends; · it is not credible that the priest would have inducted the applicant into the "catholic church" when he had deliberately expressed his desire to be a non-denominational Christian; · it is not plausible that the applicant was trained by Catholics, associated with them for a period of many years, was converted by a Catholic priest, yet did not know the names of the Disciples or of the leader of the Catholic Church, although he did tell the Tribunal he had heard of the Pope. 14 Furthermore the RRT, although acknowledging the applicant's language restrictions, his fear of the consequences of actively embracing Christianity and some knowledge of Christianity, nevertheless concluded that such factors did not explain the inadequacies of the applicant's knowledge of the Bible and the names of the Disciples. 15 While I accept that, in varying degrees, the matters relied upon by the RRT for not accepting the applicant's account of his conversion to Christianity can be logically probative of the genuineness of the alleged conversion, the weight to be given to such matters depends upon the extent to which the alleged conversion in Iran bore some similarity to the background knowledge the RRT was purporting to bring to bear on that issue. However, little was revealed by the RRT on those matters. 16 While the course pursued by the RRT may not have resulted in reviewable error under Pt 8 of the Act it is important to emphasise that, if the RRT is to fairly and justly discharge its important functions under the Act, it is critical that it: · be sensitive to the cultural, social and religious difference that exists in so many of the societies with which its cases are concerned; · does not arrive at or state its findings of fact on such issues with greater confidence than the circumstances of the particular case may warrant. 17 Notwithstanding the above matters, and the possibility that there may have been some illogicality or unreasonableness on the part of the RRT in the fact finding process pursued by it in relation to the applicant's credibility, that does not have the consequence that there has been reviewable error of law for the purposes of Pt 8 of the Act: see Minister for Immigration v Epeabaka (1998) 84 FCR 411 at 420-422. Conclusion 18 For the above reasons the application is to be dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. Associate: Dated: 22 March 2000 Counsel for the Applicant: Mr JA Gibbons Solicitor for the Applicant: Vaezi & Co Counsel for the Respondent: Mr W Mosley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 16 March 2000 Date of Judgment: 22 March 2000