Applicant R v Minister for Immigration & Multicultural Affairs [2001] FCA 943

FEDERAL COURT OF AUSTRALIA

Applicant R v Minister for Immigration and Multicultural Affairs [2001] FCA 943

Applicant R v Minister for Immigration and Multicultural Affairs N541 of 2001 ALLSOP J SYDNEY 23 JULY 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N541 of 2001

BETWEEN: APPLICANT R

APPLICANT

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 23 JULY 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Subject to the right of either party, to be exercised within 7 days, to move in opposition to this order, the applicant's name be kept confidential including for the purposes of Order 46 rule 6 and the reference to him be as Applicant R. 2. The application be dismissed. 3. The applicant pay the respondent's 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 N541 of 2001

BETWEEN: APPLICANT R

APPLICANT

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE: 23 JULY 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 In this matter the applicant seeks an order for review under s 475 and s 476 of the Migration Act 1958 (Cth) (the Act) of a decision of the Refugee Review Tribunal (the Tribunal) made on 20 March 2001. When this matter was called on for hearing the applicant sought leave to file an amended application for review in terms and for reasons reflected in the transcript of 16 July 2001. I granted the applicant that leave. An amended written outline of submissions was also handed up. An amended application for review was filed on 17 July 2001. 2 The applicant is an Iranian national. He arrived in Australia on 22 October 1998. On 2 December 1998 he lodged an application under the Act for a protection visa (class AZ) with the Department of Immigration and Multicultural Affairs. On 15 April 1999 a delegate of the Minister refused to grant a protection visa. On 27 April 1999 the applicant applied to the Tribunal for review of that decision. On 20 March 2001 the Tribunal handed down its decision in which it affirmed the decision of the delegate not to grant a protection visa. 3 The claims of the applicant were wide ranging. He gave oral evidence to the Tribunal on 31 January 2001. After the hearing the Tribunal sent letters under s 424A to the applicant enquiring about various matters including the treatment of Christian converts on their return to Iran. 4 The claims of the applicant as set out in the protection visa application included a statement of fact that the applicant's religion was Muslim. At this stage his claim had no connection with possible religious persecution. The applicant's claims as set out in his visa application are set out on pages 5 and 6 of the decision (pages 173-174 of the court book). I do not set them out exhaustively. It is sufficient at this point to say that there was a claim for asylum based on a fear of persecution for political reasons by reason of a connection with the Mujahadeen opposition in Iran. 5 These claims were continued before the Tribunal. However, there had been added to the claims for refugee status by this point a claim in respect of feared religious persecution. The additional claim based on his religion and conversion to Christianity is set out on page 7 of the decision (page 175 of the court book). 6 The application before the Court for review of the decision of the Tribunal concentrates solely upon the treatment of the applicant's claim for protection by reason of religious persecution as feared by him. In one sense this is not surprising given the way the Tribunal dealt with the balance of the claims. It is not necessary to deal with every aspect of how the Tribunal dealt with the claims for asylum other than those based upon religion, but it is a fair description to say that the Tribunal comprehensively rejected all the relevant elements of the claim and did so, to a significant degree, upon the lack of credibility of the applicant. As I have said, the applicant does not complain about these findings. It would be difficult for him to do so. I do not describe the fate of these claims by the applicant gratuitously. It sets an important context for how the Tribunal came to assess the claim for asylum based on fear of religious persecution which was dealt with in terms of evidence at pages 14-16 of the decision (pages 182-184 of the court book) and in terms of findings and reasons at pages 21-23 of the decision (189-191 of the court book). 7 I set out the claim for religious persecution contained on page of 7 of the decision (page 175 of the court book) as follows: It is difficult to continue to have faith in Islam when one can see that the regime has justified its brutal behaviour through Islamic principals. It is also difficult to continue to have faith in a religion that has led the inhumane government to claim a divine right to rule. I came to question and become disillusioned with Islam because of the atrocities committed by my country's government under its name. Although I had grown up with the teachings of Islam and had many Muslim friends, I came to realise that there were many things that I could no longer believe in. My questioning of Islam led to a profound spiritual void in me. In my time of fear and loneliness I searched for a faith that would be able to take the place of the void left by my discontent with the religion of my birth. Fortunately I was introduced to Christianity in my time of need by my friends and began attending the Carlingford Anglican Church. Through Father Stewart Binns I was introduced to Evangelical Iranian Church in St Marys area which I have been participating for the past six months. I believe that the lord helped me discover him at a time when I was in desperate need of him. I have made wonderful friends through my congregation who have helped me in my quest to learn more about Jesus Christ and his teachings. I was baptised on the 12 December 1999 and have also attended Bible Studies sessions. I have been partaking in the Bible Outline Correspondence Course and have enjoyed the lively discussions about Christianity among my friends. I have found it very fulfilling to learn more about the way of life preached by Christianity. The forgiveness and love that I see in Christianity are very different to the brutality I experienced under Islam. I have been very fortunate in discovering a faith and a way of life that is compassionate and humane. I now know that it is my duty as a good Christian to spread the words of the lord. As has been outlined in Matthew 5: 19 Jesus asks us to Follow him for he will make us fishers of men. Only those who have accepted the lord Jesus Christ as the Son of God can be saved. It is therefore my obligation to those around me to insure that I tell others what I know and understand about Christianity and the difference it has made in my life. Unfortunately I also know that my conversion will be viewed with contempt by the Iranian government. As a converter I will undoubtedly be labelled an apostate and risk the death penalty. As an evangelist I will also undoubtedly be seen as a threat to the regime and be subject to persecution. All I want now is a chance to live my life according to the teaching of Jesus Christ however I know that this would not be possible in Iran. I beseech the Australian government to protect my right to freely practise my Christian faith. 8 The question of religious freedom in Iran was dealt with in terms of evidence, as I have noted earlier, at pages 14 to 16 of the decision (182-184 of the court book). The Tribunal referred to a document of February 2001 entitled "The 2000 Country Report on Human Rights Practices" issued by the Bureau of Democracy, Human Rights and Labour in the US Department of State. The Tribunal also referred to the Department of Foreign Affairs and Trade (DFAT) Country Profile of March 1996 at two sections. Argument before me particularly revolved around two of the paragraphs of the DFAT Country Profile and I set them out in full, italicising the parts of them which were discussed in argument before me: [2.3.9] It is difficult to make general assessments about the treatment of apostates. Under traditional Muslim law, a Muslim leader must issue a formal decree identifying an apostate and allowing his/her blood to be spilt before that individual can be physically harmed. While it is popularly believed that the penalty for apostasy under Islamic law is death, this seems open to interpretation, as indicated by comments of senior judicial authorities at a human rights seminar held in Tehran in 1994. Death sentences for apostasy have traditionally been issued to Baha'is and occasionally Christian converts who have been active in proselytising. However, the death sentence has rarely been carried out for apostasy alone. The majority of religious judges appear reluctant to deliver an execution order for this "offence" alone. People who do publicly convert away from Islam would however be harassed, possibly imprisoned and threatened with death, if they had been found to be active in proselytising among Muslims. The most famous recent case was that of Mehdi Dibaj, a long time convert and Assembly of God pastor, sentenced to death in 1993, but later given a reprieve and released. In June 1994, he was found murdered. The Government blamed the MKO. Those who worship privately and maintain a low profile will be very unlikely to suffer any adverse attention from authorities for their conversion, unless they are involved in other activities which would attract security interest. [1.7.7.8] Iranians who had based their asylum applications on their conversion from Islam to Christianity would, in almost all cases not suffer particular problems if returned, unless they declared to the authorities on return their new religious affiliation. Apostasy is widely reported as carrying a nominal death sentence. However there are only one or two cases (high profile Christian clergy) where this sentence has ever been imposed. Moreover, some senior and influential clerics have recently publicly questioned such an interpretation of Koranic law. The evidence is that those converts who go about their devotions quietly are generally not disturbed (it is either those who actively seek attention, or who are engaged in conspicuous proselytization, who have run into difficulties, usually with the local mosque rather than the State authorities). The last convert to be sentenced to death was Mehdi Dibaj, a high profile Christian pastor with a long history of proselytization. He was given a last minute reprieve in early 1992 but found murdered a year later. The Government blamed the MKO. 9 As I have said above the findings and reasons are set out at pages 21 to 23 of the decision (court book 189-191). The applicant abandoned a claim based on s 430 of the Act. This abandonment, quite properly made, was made in the light of the High Court's decision in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. The balance of the arguments of the applicant focus upon the adequacy of the Tribunal's reasons for finding as it did. Though not structured in this way in written form, during the argument it became evident that the applicant had two fundamental attacks on the reasons of the Tribunal. The first of those attacks was, as was necessary, a head-on confrontation with the finding of the Tribunal in the last full paragraph of page 22 of the decision (page 190 of the court book) that, in effect, his conversion was not genuine. At page 22 the Tribunal said: The Tribunal notes that the applicant's interest in Christianity arose shortly after the Department rejected his application for a protection visa. This fact combined with applicant's general lack of credibility in regard to his prior claim to be involved with the Mujahedeen and to be wanted by the Iranian authorities leads the Tribunal to the conclusion that the applicant's conversion to Christianity is a conversion of convenience. The Tribunal finds that the applicant has converted to further his claims for a protection visa and if he was therefore to return to Iran the applicant would not be committed to practicing Christianity and would therefore not face a real chance of persecution in Iran. 10 In argument it was not put that this was other than a finding (as I think it clearly was) that the "conversion" was not bona fide. The finding is fundamental. It is a finding that the conversion is one of convenience and that upon return to Iran it will evaporate and for that reason the applicant would not face a real chance of persecution in Iran because his conversion is not genuine. 11 As I said earlier, it is important to appreciate that the Tribunal rejected the evidence of the applicant on a virtually wholesale basis, not only in relation to this claim for religion but in relation to all the other claims made by him. That is an important consideration to take into account in examining the complaints of the applicant about the fact finding in this regard. In regard to his claim for religious persecution, the essence of the attack on this finding is that the Tribunal ignored relevant material being the letters of various churchmen in Sydney and Parramatta dealing with the applicant's faith. Because of the centrality of these letters I should recount their contents. 12 The first was a petition of members of the Iranian Alliance Church at Parramatta that stated that the signatories believed that the applicant was a genuine convert to Christianity, that he had been an active member of the congregation and that from their collective experiences they believed that if he was forced to return to Iran he would be subjected to further harassment and attack considering that he is already of interest to the Iranian authorities. 13 Secondly, the pastor of the Iranian Alliance Church of Sydney said amongst other things: that the applicant had been attending the church since June 1999, his little knowledge of Jesus Christ and the encouragement of other Christians made him want to attend the church's Sunday service; seeing the congregation's Christian thoughts and belief caused the applicant to start building a close relationship with the Christians of the church; week after week he became more enthusiastic and decided to attend the church programs regularly; his interest in research drew him to attend certain Christian studies; the applicant believed in Jesus Christ and was baptised; the applicant had been greatly influenced by the word of Christ and had a clear grasp of the gospel; the applicant had chosen to become a Christian applying his faith in his life and work; the applicant is very keen to evangelise and to invite Muslims to Christ. The pastor expressed the belief that the applicant's faith in Jesus Christ was completely genuine. 14 Thirdly, the pastor of the Persian Evangelical Anglican Church at Parramatta stated that, amongst other things, the applicant had regularly attended service, participated enthusiastically in all church activities, had demonstrated an admirable grasp of the scriptures and that he, the pastor, believed that his (the applicant's) faith in Jesus Christ was completely genuine. 15 The Tribunal was aware of these documents. They are specifically referred to on page 4 of the decision (page 172 of the court book). Further, on page 22 of the decision (page 190 of the court book) the Tribunal said the following: The Tribunal makes the following findings in respect of this claim. The Tribunal notes the various letters testifying to the applicant's involvement in Christianity. The Tribunal accepts that the applicant has undertaken correspondence classes in the Bible, does attend a Christian Church regularly in Australia and has assisted in local Christian churches in Australia. 16 Thus there can be no doubt that the letters were before the Tribunal and that it was cognisant of them. Equally, there can be no doubt that the Tribunal accepted that the applicant had engaged in church activities as reflected in those letters. What was rejected, and squarely rejected, was the genuineness of the conversion. 17 The complaint made is that there was a failure to deal with these letters in that respect. In effect, it is said, that there was a failure to grapple with a central body of material relevant to a finding of credit that the applicant did not make a genuine conversion. It is said this exhibits a failure to exercise jurisdiction by failing to complete a task mandated of the Tribunal by the Act and regulations prior to making the findings it did. 18 I cannot agree. There is no obligation on the Tribunal to set out every aspect of its findings on credit. The Tribunal rejected the applicant in his evidence. It found the conversion not to be genuine. While I understand and appreciate that these are findings of fact about which the applicant deeply and strongly disagrees, unless there is a legal error in coming to them I can do nothing about them. I see no legal error. In Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469, (not disapproved by the High Court in Yusuf in this respect), it was accepted by the Full Court of the Federal Court that to comply with s 430 the written statement prepared by the Tribunal does not have to given reasons for rejecting or attaching no weight to evidence or other material inconsistent with any finding. Here, what existed were letters in which others had stated that their view that this man's conversion was genuine. The Tribunal saw this applicant. It had the benefit of his evidence, not only on this issue, but also on a range of issues. On all those issues it did not accept his evidence. In one sense there was little to grapple with in these letters other than the noting of the recognition that others had believed him on other occasions. The failure to do this cannot be said in my view to be an error going to jurisdiction in the sense discussed in Yusuf and Craig v South Australia (1995) 184 CLR 163. 19 Thus, I reject the attack on the finding made at page 22 of the decision (page 190 of the court book) to the effect that the conversion was not genuine. This attack failing, that is effectively an end to the case. Review is not sought, as I have said, on the rejection of the other grounds of claimed fear of persecution. The ground for a claim for fear of religious persecution fails in limine if it is found, as was found, that the religious conversion was not genuine. 20 The Tribunal also dealt with the matter on an alternative basis in the last three paragraphs of its reasons. The error said to be evident here is that the Tribunal has failed to address the question of the applicant's religion (on this hypothesis based upon a genuine conversion) on the basis that even if he is not someone who will evangelise upon return, he is also not a person who will necessarily only carry on a private faith. The problem arises in this way. On page 16 of the decision (page 184 of the court book) the country information which is italicised in the first two places of the quoted material in paragraph [8] above indicates that those who evangelise or proselytise upon return are at serious risk of harm (see first italicised portion). The material then goes on to discuss those who "worship privately and maintain a low profile", who it is said would be unlikely to suffer any adverse attention (see second italicised portion). The submission which was built upon these matters was that the Tribunal saw as important the recognition that the authorities not learn of the conversion of the applicant. Thus, it was said, there was a recognition of an intermediate position between evangelising or proselytising, on the one hand, and private worship on the other; that intermediate position being the public practising of faith by church attendance and the like in Iran. Thus it was said that the Tribunal had failed to grapple with an essential aspect of religion, being the communal practicing of religion in public: Wang v Minister for Immigration and Multicultural Affairs (2000) 179 ALR 1 at paras [5] to [7]. 21 I reject this alternative submission. In my view, consonant with the appropriate approach to reading reasons such as this (see Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2), I should read the submissions in the way contended for by Mr Lloyd, counsel for the Minister. Mr Lloyd pointed out the third italicised portion of the country information to which I have made reference. His submission was that when looked at in its totality, it is clear that the Tribunal had not ignored the circumstance of public, though quiet, devotion, because the notion of such conduct was encompassed within what was being excluded from what appears in parenthesis in the third italicised portion. In other words, those converts who go about their devotions quietly are generally not disturbed; these are people other than those referred to in the parentheses - those who actively seek attention or who are engaged in conspicuous proselytisation. In this context, and paying regard to Wu Shan Liang, I agree with the submissions of Mr Lloyd that what was being put here by the Tribunal was that even if the applicant had a faith which he currently practises he will be able to practise that faith in Iran in a manner which will not lead to the prospect of harm. The finding that the authorities would only take an adverse interest in the applicant should the applicant on his return undertake evangelical activities in a public manner, when read in the light of the whole of page 16 of the reasons for decision (page 184 of the court book), is part of a finding that the applicant's faith can be practised in accordance with its elements in Iran without relevant risk of adverse consequences. This may or may not be a correct finding. Nevertheless it is a finding and, in my view, it is not attended by error on its face. That is, I reject the submission of the applicant that from a reading of the Tribunal's reasons alone it can be seen that the Tribunal has failed to grapple with an element of religion in the way it intersects with the definition of refugee: cf Farajvand v Minister for Immigration and Multicultural Affairs [2001] FCA 795 at paras [33] to [37]. 22 The attack on these alternative findings is also made on the basis that a more up to date country report was not taken into account. In the written submissions filed there were 11 aspects of further country information identified said not to have been taken into account. All of these were taken from the 2000 Country Report on Human Rights released by the Bureau of Democracy, Human Rights and Labour of the US Department of State. I set out below the submissions of the applicant in this regard in so far as they identify the matters said not to have been taken into account. i) "Religious activity is monitored closely by the Ministry of Intelligence and Security (MOIS)" [see p308 of the Court Book], ii) "Evangelical Christian groups are pressured by government authorities to compile and hand over membership lists for their congregations" [see p 308 of the Court Book], iii) "All religious minorities suffer varying degrees of officially sanctioned discrimination, particularly in the areas of employment, education, and housing …" [see p309 of the Court Book], iv) "University applicants are required to pass an examination in Islamic theology… [T]his requirement limits the access of most religious minorities to higher education" [see pp 309 & 321 of the Court Book] "Applicants for public sector employment similarly are screened for their knowledge of Islam" [see pp 309 & 320 of the Court Book], v) "The law stipulates penalties for government workers who do not observe 'Islam's principles and rules" [see pp 309 & 321 of the Court Book], vi) "Religious minorities suffer discrimination in the legal system, receiving lower awards in injury and death lawsuits, and incurring heavier punishments than Muslims" [see pp 309 & 321 of the Court Book], vii) "The Government is highly suspicious of any proselytizing of Muslims by non-Muslims and can be harsh in its response, in particular against … evangelical Christians" [see p 309 of the Court Book], viii) "The Government does not ensure the right of citizens to change or recant their religious faith" [see p309 of the Court Book] "Muslims who convert to Christianity… suffer discrimination" [see p 321 of the Court Book] "Apostasy, specifically conversion from Islam, may be punishable by death" [see pp 309 & 321 of the Court Book], ix) "The authorities have become particularly vigilant in recent years in curbing what is perceived as increasing proselythizing activities by evangelical Christians, who services are conducted in Persian. Conversion of a Muslim to a non-Muslim religion can be considered apostasy. Government officials have reacted to this perceived activity by closing evangelical churches and arresting converts. Members of evangelical congregations are required to carry membership cards, photocopies of which must be provided to the authorities. Worshipers are subject to identity checks by authorities posted outside congregational centers. Meetings for evangelical services have been restricted by the authorities to Sundays, and church officials have been ordered to inform the Ministry of Information and Islamic Guidance before admitting new members to their congregations." [see p 313 of the Court Book], x) "One organization reported in 1999 the deaths of 8 evangelical Christians at the hands of authorities in the past 11 years, and between 15 and 23 disappearances between November 1997 and November 1998" [see p 313 of the Court Book], and xi) "Oppression of evangelical Christians continued during the year. Christian groups reported instances of government harassment of churchgoers in Tehran, in particular against worshipers at the Assembly of God congregation in the capital. Cited instances of harassment included conspicuous monitoring outside Christian premises by Revolutionary Guards to discourage Muslims or converts from entering church premises and demands for presentation of identity papers of worshipers inside. Iranian Christians International (ICI) detailed the cases of Alireza and Mahboobeh Mahmoudian, converts to Christianity and lay leaders of the Saint Simon the Zealot Osgofi Church in Shiraz, who were forced to leave the country permanently in June 1998 after continued harassment by the authorities. The ICI reported that Alirza Mahmoudian had lost his job because of his conversion and had been beaten repeatedly by Basiji and Ansar-e Hezbollah thugs on the orders of government officials from the Ministry of Islamic Guidance. His wife, Mahboobeh, also had been the subject of intimidation, principally through frequent and aggressive interrogation by government officials". [see p 313 of the Court Book]. 23 These matters are said to amount to important, indeed central, considerations going to the question of persecution which the Tribunal had before it, but did not deal with in its reasons. So, it is said, the Tribunal failed to have regard to material of sufficient importance leading to the conclusion that there has been a failure to attend to material required to be attended to by the Act and regulations, such that it can be said that the order was made without jurisdiction or not authorised by the Act in the sense discussed in Yusuf. 24 I reject these submissions. The Tribunal plainly had this material before it. It relied upon other country information. Whatever the boundaries or limits of the application of Yusuf may be in a particular circumstance, I do not think this case is an illustration of relevant considerations mandated by the Act not being considered. It is not for this Court to say that it thinks that one piece of country information is more material or more relevant than another. It is for the Tribunal to decide for itself as the fact-finder what material it thinks is relevant, unless the Act and regulations make that material compulsorily applicable. While another person may well have thought that the 2000 country information should be considered within the reasons, in my opinion the failure to give weight to that material can be no more than an error of fact. It cannot be denied that the claim based on a fear of religious persecution was dealt with. In so dealing with it the choice of background country information relevant to that matter was a matter for the Tribunal. Nothing in the Act or regulations mandated that the Tribunal prefer or use one body of country information over another. 25 In my view this second basis of the attack on the decision also fails. 26 There was also an attack on the posing of the question on page 22 of the decision (page 190 of the court book) where the Tribunal stated that the applicant had made no claims that he was previously a devout Muslim and a regular attendee or member of a Mosque such that if he was to return to Iran and no longer be a devout Muslim he would come under suspicion. 27 It was submitted that this was a misdirection on the part of the Tribunal or that it asked a wrong or irrelevant question. I do not agree. What the Tribunal was getting at was a relevant consideration as to whether or not upon return to Iran it would become evident to the authorities that he was someone who had converted. This was part of the recognition by the Tribunal that a relevant consideration in the future safety of the applicant was any knowledge of the authorities about his religious beliefs. I reject the submission that the question was in any sense irrelevant. 28 There was an attack made in written submissions based on para 476(1)(g) of the Act read in conjunction with para 476(4)(b) of the Act. This attack, contained in section 6 of the written submissions, was founded principally upon the reference to the applicant not being a devout Muslim and a regular attendee of mosque prior to coming to Australia. It, in effect, went no further than the earlier submission with which I have just dealt. In no sense was this the making of a decision on a fact which did not exist or in respect of which there was no evidence. What the Tribunal was doing was saying that the applicant had made no claims to that effect, which I understand it is not in contest, and the Tribunal drew what I would see as a logical conclusion from that: that in these circumstances it would be unlikely that it would be noticed that he no longer carried on with any devout practice as a Muslim. 29 I see no substance in the attack under para 476(1)(g) of the Act. 30 For the above reasons, in my view, the application should be dismissed and the applicant should pay the respondent's costs. I so order. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop