Mohammadi v Minister for Immigration & Multicultural Affairs [2001] FCA 1432

FEDERAL COURT OF AUSTRALIA

Mohammadi v Minister for Immigration & Multicultural Affairs [2001] FCA 1432

AMIR HOSSEIN MOHAMMADI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 130 of 2001 CARR J 11 OCTOBER 2001 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W130 OF 2001

BETWEEN: AMIR HOSSEIN MOHAMMADI

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: CARR J

DATE OF ORDER: 11 OCTOBER 2001

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The application be dismissed. 2. 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

WESTERN AUSTRALIA DISTRICT REGISTRY W130 OF 2001

BETWEEN: AMIR HOSSEIN MOHAMMADI

Applicant

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

Respondent

JUDGE: CARR J

DATE: 11 OCTOBER 2001

PLACE: PERTH

REASONS FOR JUDGMENT

introduction 1 This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 12 April 2001, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant. The applicant, who is a citizen of Iran, arrived in Australia on 1 November 2000. On 16 November 2000 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 ("the Act"). On 15 December 2000 a delegate of the respondent refused to grant a protection visa and on 21 December 2000 the applicant applied for review of that decision.

the applicant's claims and the Tribunal's decision 2 The applicant's claims, in summary, were as follows: · he was born in Teheran, Iran and he was 29 years of age; · he had a girlfriend for 1˝ years. She was a Christian and during their relationship she talked to him about Christianity. He asked her to marry him hoping that she would convert to Islam but she refused. She said that if he wished to marry her, he would have to convert to Christianity; · he agreed to convert to Christianity so that they could be married. He went to the church which she attended. The priest asked him if he was really ready to convert and if he knew the consequences of converting. He would be known as "mortad" (an apostate). The priest then carried out a short ceremony and welcomed him to the church; · a few days later he went to his uncle's home to stay for a few days. One of his friends went to his uncle's house and told him that the police had been to the family home. He was told not to go home. His father went to the police station to find out why they were looking for him. The police said it was because of his involvement with his girlfriend; · he stayed at his relative's house while his father organised money for him. His cousin bought a false passport for US$500. After a few days he flew to Mehrebad airport with the false passport. The false passport was Iranian and in the name of Majeed Rahnama. He then flew from Iran to Malaysia and then travelled by boat to Indonesia and then Australia; · he cannot return to Iran because the Iranian authorities will execute him for being "mortad". 3 Rather than attempt to summarise the Tribunal's findings and reasons, I set them out below in full. I have added numbers to the paragraphs to facilitate the references which I make later in these reasons. "FINDINGS AND REASONS 1. In order to satisfy the Convention definition of a refugee, the applicant must have a well-founded fear of persecution. He must have a subjective fear, and that fear must be well-founded when considered on an objective basis. There must be a real chance that the applicant will be persecuted for a Convention reason if he returns to Iran, which it finds is the applicant's country of nationality. The Tribunal accepts that the applicant does not want to return to his own country. The question for the Tribunal to determine is whether that fear is objectively well-founded within the criteria of the Refugees Convention. 2. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Guo Wei Rong and Pan Run Juan v Minister for Immigration and Ethnic Affairs and McIlhatton (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. I note in particular the cautionary note sounded by Foster J at 482: … care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted. 3. In the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, the High Court also made comments on the correct approach to determining findings on credibility. Kirby J said at 39: First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is not desirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the "real chance" of persecution required by Chan. 4. With these points in mind the Tribunal now turns to an assessment of the applicant's claims. 5. The applicant claims that if he returns to Iran he will be persecuted because of his conversion to Christianity and his fears that he will be persecuted as an apostate. 6. The Tribunal accepts for the purposes of this review that the applicant developed an interest in Christianity from his girlfriend. It accepts that she told him that in order to marry her he would have to convert to Christianity. However, the Tribunal does not accept that he has formally become a member of the Catholic Church and that if he did that he would be persecuted in Iran for his religious beliefs. 7. Notwithstanding his interest in Christianity and Catholicism for two years prior to his departure for overseas in mid 2000 he was not baptised into the Church in Iran. Despite his evidence to the delegate that he had converted to Christianity during a ceremony in Iran he states that his religion is Muslim Shi'a in his protection visa application and in his evidence to the Tribunal he states that he has not been baptised and that he is in a queue to be converted in Australia. In addition, he had not celebrated any of the significant events in the Christian calendar such as Christmas or Easter. The Tribunal concludes that despite the applicant's apparent intention to convert to Catholicism and his girlfriend's requirement that he convert in order to marry he has not yet done so. 8. In the event that he does convert, information from the Canadian Research Directorate of the Immigration and Refugee Board indicates that it is not a crime to convert from Islam to Christianity, namely Catholicism, that it is not a problem for a "ordinary people" (sic) to convert to Christianity and that mainstream Christians can practice their religion in Iran (Refinfo: IRN33082:E at p 10). He is a "simple person" in the sense that he has not been a devout practitioner of Islam. He has not as yet been Baptised into the Church and he has limited Christian practices and, he is not an evangelist. The applicant's intention is to convert in order to marry a Christian. 9. The applicant displayed a limited knowledge of his religious faith. In his interview with the delegate he stated that Christmas is celebrated on 5 January each year and when asked about Easter he responded that he is just beginning to learn about his religion. Further, he did not know the name of the church he attended with his girlfriend and her mother and he was unable to identify any other Christian or Catholic Church in Tehran despite his evidence that he was involved with Christianity for one and a half years prior to his departure in 2000. In his interview with the delegate when it was put to him that he had a limited knowledge of his new religion he responded that 'he is only in (sic) the beginning of Christianity and does not know much about the religion'. He also stated that the discussions he had about Christianity were in a social context. In his hearing before the Tribunal he did not stipulate any religious requirements to enable him to practice his faith. He stated that he practises his faith by reading pamphlets and talking to his friends and that he has attended church services in the IDC. He did not elaborate on the nature or significance of the services. He said that he discusses with his friends some of the main stories about Christianity but was only able to describe them in very general terms of 'love and miracles'. Further, on his own evidence the applicant did not attend church until the month of his departure despite having been introduced to Christianity one and a half years before hand. The Tribunal also noted that the applicant (sic). 10. The Tribunal has also considered whether or not the applicant will proselytise if he returns to Iran. On this point, the applicant did not proselytise in Iran before his departure for Australia. His knowledge of the Christian religion was based on social discussions and what he saw on television and in films. Nor has he done since his arrival here. When asked how he practises his religion in the Curtin IDC he responded that he attended church services, read pamphlets and talked to his friends. The Tribunal has noted the letter of 26 March regarding involvement of a visiting minister at the Curtin IDC. This letter is from a Minister of the Uniting Church even though the applicant claims his conversion is to Catholicism. In any event this Minister did not know the applicant by name and confirmed that he was he had not (sic) approached him regarding baptism. The applicant's current lack of status within the Church coupled with his limited knowledge of Christianity/Catholicism lead to a conclusion that he will not proselytise in the event that he returns to Iran. 11. Moreover, the Tribunal does not think that his religious faith drives him to proselytise. He has not done so in Australia and the Tribunal does not consider that he will do this in Iran, where, as set out at pp7-9, the authorities pay particular attention to proselytising or evangelical activities. This Tribunal accepts the finding made in another decision differently constituted (N98/25999 and N98/25998 constituted by Member Giles Short 7 May 1999) that the applicant may attend a Catholic church in Iran, assuming he decides to convert, and that he may participate in low key religious activities organised by the church, such as talking about Christianity and the Bible. However, the Tribunal does not accept that he will attract the adverse attention of the authorities through his participation in such activities, having regard to the advice of DFAT that the authorities turn a blind eye to such low key proselytising activities (DFAT facsimile message dated 5 March 1996, CX15554). 12. Similarly, the Tribunal does not consider that the applicant will be subject to any punishment or penalty just by reason of his having converted to Christianity. While apostasy in theory carries the death penalty, in practice the penalty has only been imposed in the most high profile cases of Christian clergy engaged in active proselytising (DFAT Country Profile – Islamic Republic of Iran, March 1996, para. 1.7.7.8). The authorities have singled out clergy, lay leaders and church workers to pressure them not to proselytise or to allow Muslims to attend churches (see Amnesty International in its Report 1997 and Report 1998 and US State Department Country Report on Human Rights Practices for 1998, Iran). Having regard to the Tribunal's assessment of the applicant's level of involvement in Christianity and Catholicism, the Tribunal concludes that he will not become a leader of, or a worker for, the church in Iran in the reasonably foreseeable future and the Tribunal therefore does not consider that he will be subject to this kind treatment. While not a point specifically made out by the applicant, the Tribunal has considered whether or not he would be at greater risk if he marries a Christian woman. As noted above, the country information indicates that in the event that he decides to convert and participates in low key religious activities as an ordinary member he will not attract adverse attention from the authorities. 13. Given all of the above, the Tribunal does not accept that the police had an adverse interest in him on account of his Christian practices. The Tribunal does not accept that his house was raided because of the applicant's conversion to Christianity. The Tribunal concludes that the Iranian authorities do not have any adverse interest in the applicant for reason of his religion or for any Convention reason. If, as the applicant claims, his family have threatened to disown him if he converts to Christianity, that is regrettable, but it does not amount to persecution. 14. The applicant gave inconsistent evidence about his departure arrangements, he gave evidence that he departed on a false passport and also that his own passport was used for his departure. The Tribunal rejects the contention that he left illegally, having regard to his inconsistent evidence about his travel arrangements. There is no evidence before the Tribunal to indicate that a Christian would suffer disproportionately if subjected to questioning in the event that he returns to Iran. CONCLUSION 15. Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa."