FEDERAL COURT OF AUSTRALIA Badraie v Minister for Immigration & Multicultural Affairs [2001] FCA 616 MIGRATION – review of decision of Refugee Review Tribunal ("Tribunal") – whether the Tribunal failed to set out its finding on a material question of fact – whether Tribunal required to explain why it attached more or less weight to evidence before it – whether the Tribunal failed to properly apply the 'real chance test' – whether there was no evidence or other material to justify the making of the decision Migration Act 1958 (Cth) s 430(1)(c), s 476(1)(a), s 476(1)(e), s 476(1)(g), s 476(4)(b) Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 followed Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 74 ALJR 405 followed Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 referred to Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 followed Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 followed Minister for Immigration & Multicultural Affairs v Rajamanikkam [2000] FCA 1023 referred to Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 referred to MOHAMMAD SAEED BADRAIE & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 280 OF 2001 STONE J 25 MAY 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 280 OF 2001 BETWEEN: MOHAMMAD SAEED BADRAIE FIRST APPLICANT ZAHRA SABERI SECOND APPLICANT SHAYAN BADRAIE THIRD APPLICANT SHABNAM BADRAIE FOURTH APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: STONE J DATE OF ORDER: 25 MAY 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: the application be dismissed with costs. 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 280 OF 2001 BETWEEN: MOHAMMAD SAEED BADRAIE FIRST APPLICANT ZAHRA SABERI SECOND APPLICANT SHAYAN BADRAIE THIRD APPLICANT SHABNAM BADRAIE FOURTH APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: STONE J DATE: 25 MAY 2001 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The first, second and third applicants, being citizens of Iran, arrived in Australia illegally on 27 March 2000; the fourth applicant was born in Australia on 21 July 2000. For ease of identification I shall refer to the first and second applicants respectively as "the husband" and the "the wife". On 26 June 2000, an application for protection visas was lodged on behalf of the husband, the wife and the older child (third applicant) under the Migration Act 1958 (Cth) ("Act"). The second child was added to the application after her birth. The application was refused by a delegate ("Delegate") of the respondent ("Minister") and that decision was upheld by the Refugee Review Tribunal ("Tribunal") on 9 March 2001. decision of the tribunal 2 In its reasons, the Tribunal set out the criteria that must be satisfied before a person is to be granted a protection visa. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the 1951 Geneva Convention Relating to the Status of Refugees, as "amended" by the 1967 New York Protocol Relating to the Status of Refugees (compendiously, "the Convention"). Article 1A(2) of the Convention provides that a refugee is any person who: "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." 3 The Tribunal summarised the applicants' claims and the evidence before it. The applicants' claims before the Tribunal were based on matters including the husband's Kurdish ethnicity, his membership of the minority religious group "Al Haqq" or "Al Hagh" (also known as "Yarasan"), his membership of a student association, his participation in a political demonstration and the fact that he has applied for refugee status in Australia. In relation to those matters, the Tribunal found that the applicant did not have a well-founded fear of persecution. The applicants have not sought to review any of those findings in this Court. Accordingly, there is no need to set out the Tribunal's reasons in relation to those claims. 4 The husband and wife also claimed that they each had a well-founded fear of persecution because of the wife's conversion from Islam to Al Haqq. It was claimed that the husband would be presumed guilty of the offence of proselytising and the wife would be presumed guilty of apostasy. With some reservations the Tribunal accepted that the husband was a follower of the Al-Haqq religion. In relation to the wife's alleged conversion to that religion, the Tribunal stated: "The Tribunal has considered [the husband's] claim that he will face serious problems and punishment in Iran for reasons of his wife's conversion to his religious faith… There are difficulties in the accounts given of the wife's conversion. It has been claimed that she converted to Al-Haqq prior to her wedding and in the ignorance of this by her parents. The Applicant husband claimed that her parents did not know that he was a member of this group even though he has also submitted that the Al-Haqq, and therefore he, himself do not 'dissimulate'. The Applicant husband was a Kurd from Ilam who had, he had claimed, already lost one job because he was identified as a member of Al-Haqq. He has claimed that he was sacked again in 1998, the year of his marriage, for the same reason. He claimed he was at that time detained for three weeks. That employment was with the Sea Transport Organisation in Khoramshar, that is in the town where his in-laws lived. The Tribunal does not accept that the wife's parents would make no enquiries of their prospective son-in-law's credentials and that they would be unable to find out, what he has claimed others had found out, that he was a member of Al-Haqq. That is, it is difficult to accept the issues raised in this paragraph did not result in his parents-in-law at least knowing that he was a member of Al-Haqq. The Tribunal also has taken into account that they lived together for two years before departing for Australia with no obvious negative consequence for either of them because of the marriage. Whether both or either of them was a devout follower of Al-Haqq, they apparently managed to persuade her large family and others around them that they were not religiously unusual or that their religious situation was no problem. That is, the alleged conversion did not apparently result in any change of behaviour on the part of the Applicant wife which raised suspicions. She did not exhibit zeal for a new religion nor seek to convert others. There appears to have been no public dimension to conversion. She told the Tribunal that she did not participate in Al-Haqq rituals of groups, except for attending some singing and social occasions. This raises the issue as to whether the mere undergoing of an initiation ritual into Al-haqq could be described as 'conversion'." The Tribunal then considered the contents of letters sent by the husband's family suggesting that they had been questioned by the authorities in relation to the wife's conversion and stated that it did not find these compelling. It then stated "The Tribunal has also taken into account that according to the Applicant husband it was his mother-in-law who told the authorities of her daughter's conversion to Al-Haqq even though he previously had stated that his in-laws did not know this. The Tribunal is not satisfied that it has been given a genuine account of the Applicant wife's religious position". 5 It is not clear whether the above passages amount to a finding that the wife did not convert to Al-Haqq or that the husband was not involved in persuading her to convert. The Tribunal clearly stated that, in its view, the story of the wife's conversion was not 'genuine'. However, it did not elaborate on the nature of its concerns. In any event, as the Tribunal then considered the position of the wife should she have converted, this uncertainty is not important. It is useful to set out the Tribunal's reasoning on this issue: "However, [the Tribunal] also has considered the situation should she have converted. While apostasy is punishable by death, there are very few recent accounts of any such punishment being meted out. Because of the dearth of information on conversion to Al-Haqq, the Tribunal has looked at sources describing the treatment of Muslims converting to Christianity, a topic on which there is a considerable amount of information. The Annual Report on International Religious Freedom for 1999 notes that there are restrictions on freedom of religion in Iran and that conversion from Islam is proscribed. However, that does not mean that conversion is, ipso facto, treated in this way. As information from the Reasearch [sic] Directorate, Immigration and Refguee [sic] Board of Canada makes clear, the situation is not as stark as the law implies. "A professor of sociology at California State University who specializes in third world development, social change, democratization in the Middle East and Iran, stated in a 29 October 1999 telephone interview that…it is possible for Muslims to attended [sic] Catholic services and said that if a 'simple person' wanted to convert, 'that's not a problem'. He claimed that he has heard of many cases of ordinary people converting from Islam to Christianity…and that the government does not need to know if this does occur." REFINFO Version 96.0 (November/novembre 2000, IRN33082.E) The Tribunal accepts that the Applicant wife is not claiming conversion to one of the registered faiths in Iran but to a small officially unrecognised minority. However, it does believe there is some correspondence between them. It is not the case the [sic] all apostates are harshly treated. The Tribunal is satisfied that the circumstances in this case will not provoke harsh reaction. The Applicant wife has not openly offended against Islam. She has, she has claimed, quietly undergone a ritual of conversion to her husband's religion. Members of Al-Haqq consider themselves to be a branch of Muslims and the family travelled to Australia with Islamic material, a compass and a cassette of Koranic readings. The Tribunal is satisfied that her husband has not been persecuted for his membership of the Al-Haqq group. It is satisfied that she too will not be persecuted for her quiet adoption of her husband's religious identity. It is not satisfied that the claims made in the letter about relatives' anger, official searches and interrogations and maltreatment of their close relatives are true." 6 The Tribunal's treatment of the husband's claim that he would be considered guilty of the offence of 'proselytising' because of his wife's conversion to his religion is less clear and is the basis of one of the grounds of review raised by the applicants. It is discussed later in these reasons at [8]–[11]. grounds of review 7 The applicants raised three grounds of review: 1 the Tribunal, within the meaning of s 476(1)(a) of the Act, failed to observe the procedures required to be observed in connection with the making of the decision; 2 the Tribunal's decision involved an error of law within s 476(1)(e) of the Act, being the failure correctly to apply the 'real chance' test in determining whether the second applicant would be persecuted in Iran for reason of her apostasy; and 3 there was no evidence or other material that would justify the Tribunal's finding that Muslims who convert to unofficial religions in Iran are not persecuted; s 476(1)(g) and s 476(4)(b) of the Act. 8 The procedure that it is alleged the Tribunal failed to observe was that, contrary to s 430(1)(c) of the Act, it did not set out its finding on a material fact. The material fact is said to be the Tribunal's finding on the claim that the first applicant would suffer persecution because he would be presumed guilty of the offence of proselytising in connection with his wife's conversion from Islam to another religion. In this regard the applicants relied on the decision of the Full Federal Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 ("Singh"). 9 There can be no doubt that Tribunal was aware of this claim, being that the husband would suffer persecution because of his wife's conversion. It specifically stated that it had considered the claim and commented that: "As the Applicants rightly submitted this claim had been raised prior to the primary decision but was not considered by the Minister's delegate." 10 Mr Jones, appearing for the applicants, argued that, despite this statement, the Tribunal had not stated its finding in relation to this claim. Quite properly, he drew my attention to a further comment of the Tribunal where, in the context of a discussion of the cumulative claims made by the husband, the Tribunal said: "The Tribunal accepts that being a member of Al-Haqq could lead to acts of discrimination against him. It does not find that his Kurdish ethnicity or his political profile add to that a dimension which puts him at risk of persecution. It has considered what has happened to him in the past in Iran and is satisfied that he has not been persecuted. It does not accept that there is now an additional risk because of his wife's conversion." [emphasis added] 11 Mr Jones valiantly pressed an interpretation of the last sentence to the effect that it was about 'guilt by association' rather than about 'proselytising'. In my opinion, however, the comment shows both that the Tribunal had made a finding on the point at issue and also the nature of that finding. I do not see how any other meaning could be attributed to it. It would no doubt have been better if the Tribunal had expressly set out its finding. Nevertheless, the statement is sufficient to comply with the requirements of Singh. The obligation to set out the material on which the finding is based is, in my view, met by the Tribunal's discussion of the report of the Department of Foreign Affairs and Trade entitled Country Profile for use in refugee determination Islamic Republic of Iran, dated March 1996, information from the Research Directorate, Immigration and Refugee Board of Canada and its acceptance of the fact that the husband and wife had been married for over two years before leaving Iran without incident. Whether another mind would have attributed the same weight to this evidence is not the point. The Tribunal is not obliged to explain why it attached such weight or came to its conclusion; Singh at [62]-[64]; Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 74 ALJR 405 at [64]-[65] per McHugh J. 12 The second ground of review concerns the correct use of the 'real chance' test. The test stems from McHugh J's conclusion as to the meaning of a 'well-founded fear' in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, with which Mason CJ agreed at 289. McHugh J stated at 429, "an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a far-fetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his or her fear should be characterized as "well-founded" for the purpose of the Convention and Protocol." 13 In applying this test, however, one must be mindful of the caution expressed by the majority of the High Court (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. While the Court observed that in most cases the application of the real chance test would lead to the same result as an application of the phrase, 'well-founded', it also commented at 572 that, "it is always dangerous to treat a particular word or phrase as synonymous with a statutory term, no matter how helpful the use of that word or phrase may be in understanding the statutory term … As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In this and other cases, the Tribunal and the Federal Court have used the term 'real chance' not as epexegetic of 'well-founded', but as a replacement or substitution for it. Those tribunals will be on safer ground, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind that a fear of persecution may be well-founded even though the evidence does not show that persecution is more likely than not to eventuate". 14 Mr Jones submitted that because the evidence before the Tribunal showed that there was punishment for apostasy in Iran, a correct application of the real chance test could not have led to the conclusion that the wife did not have a well-founded fear of persecution because of her conversion. However when one considers the Tribunal's discussion of the wife's conversion and the likelihood of her being punished for apostasy summarised above at [4] and [5], it is clear that this argument could only relate to the weight to be attached to that evidence rather than to the identification of an error of law. 15 The final ground of review involves a consideration of s 476(1)(g) as qualified by s 476(4)(b). As indicated above, the Tribunal concluded that the wife did not have a well-founded fear of persecution because of her conversion to the Al-Haqq religion. Mr Jones submitted that, within the meaning of s 476(4)(b), this conclusion was based the existence of a particular fact that does not exist. The particular fact said not to exist is the fact that in Iran, conversion from Islam to an unofficial religion is not punished. 16 The application of s 476(1)(g) and its relationship with s 476(4)(b) was considered by a Full Court in Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 ("Indatissa"). The Court referred to the need to establish three elements being that there was no evidence to justify the making of the decision, the decision was based on a particular fact and the particular fact did not exist. The Court continued at [27]-[28]: "It is not sufficient simply to establish the two matters referred to in s 476(4)(b). That paragraph qualifies 476(1)(g). It does not constitute a definition of what will amount to there being no evidence or other material to justify the making of the relevant decision. That is to say, it is not sufficient to show that a decision was based on the existence of a particular fact and that that fact did not exist. If that was sufficient, any decision of a Tribunal based on the existence of a particular fact could be challenged in the Federal Court by adducing evidence designed to persuade the Federal Court to reach a different conclusion concerning the existence of that fact. Such an approach is demonstrably unsound. It is beyond question that the power of the Court under s 476(1) generally and s 476(1)(g) in particular does not extend to a re-examination of any of the factual matters ventilated before the Tribunal. In other words, it is only if it can be shown that there was no evidence or other material to justify a decision that it is necessary to consider s 476(4). If there is before the Tribunal any evidence or material capable of supporting the particular fact on the existence of which the decision is based, the ground cannot be made out." 17 Despite Mr Jones' submissions, it is clear from the Tribunal's reasons for decision that it did not find that, in Iran, conversion from Islam to an unofficial religion is not punished. Rather it found that, "[i]t is not the case the [sic] all apostates are harshly treated". It came to this conclusion partly on the basis of its consideration of the independent material. The relevant part of the Tribunal's reasons is extracted in [5] above. In addition the Tribunal relied on the past experiences of the applicants. It attached some weight to the fact that the wife had "quietly undergone a ritual of conversion", that she had not "openly offended against Islam" and that, before coming to Australia, the husband and wife had lived together for two years without incident. 18 The applicants challenged the Tribunal's reliance on evidence concerning the consequences of conversion from Islam to Catholicism. Mr Jones submitted that Catholicism is an official religion in Iran and therefore this material was not relevant in considering conversion to an unofficial religion. I do not agree with this submission. Obviously it would have been better to have evidence concerning the consequences of conversion to the Al-Haqq group. As the Tribunal was not able to obtain such information it was entirely reasonable for it to consider analogous situations. If the applicants' challenge has any force it is in relation to the weight to be attached to such evidence. That decision, however, is a matter for the Tribunal and cannot be disturbed by this Court. 19 In any event, it is my opinion that there was ample evidence, much of which is summarised in these reasons, to justify the making of the decision to reject the application. On the basis of the analysis in Indatissa, the question of the application of s 476(4)(b) does not arise and the third ground of review is not made out. Mr Jones submitted that if this is the meaning of Indatissa then it is inconsistent with the earlier Full Court decisions of Minister for Immigration & Multicultural Affairs v Rajamanikkam [2000] FCA 1023 and Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 and should not be followed. I do not agree that these decisions are inconsistent. Because in each case the relevant Court was concerned with the specific fact situation before it, the expression of the requirements of s 476(1)(g) and s 476(4)(b) differs somewhat. That does not lead to the conclusion that the courts are applying different tests and, in my opinion, this is not the case. In any event, even if there were differences, Indatissa, being the latest decision, would presumably prevail. 20 For the above reasons, the application must be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 25 May 2001 Solicitor for the Applicant: Mr Michael Jones Counsel for the Respondent: Ms Nicole Abadee Solicitor for the Respondent: Clayton Utz Date of Hearing: 22 May 2001 Date of Judgment: 25 May 2001