FEDERAL COURT OF AUSTRALIA Dobari v Minister for Immigration & Multicultural Affairs [2001] FCA 1690 Migration Act 1958 (Cth) Pt 8 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] 74 ALJR 405 - cited Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 - cited Minister for Immigration and Multicultural Affairs v Rajamanikkam and Anor (2000) 179 ALR 495 – cited Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 - cited BABAK DOBARI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 179 OF 2001 JUDGE: SPENDER, MERKEL AND ALLSOP JJ DATE: 30 NOVEMBER 2001 PLACE: PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 179 OF 2001 An appeal from a single Judge of the Federal Court of Australia BETWEEN: BABAK DOBARI APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGES: SPENDER, MERKEL AND ALLSOP JJ DATE OF ORDER: 30 NOVEMBER 2001 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs to be taxed if not agreed. 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 W 179 OF 2001 An appeal from a single Judge of the Federal Court of Australia BETWEEN: BABAK DOBARI APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGES: SPENDER, MERKEL AND ALLSOP JJ DATE: 30 NOVEMBER 2001 PLACE: PERTH REASONS FOR JUDGMENT SPENDER J: 1 I agree with the orders proposed by Justice Merkel and with his Honour's reasons. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justices Spender. Associate: Dated: 30 November 2001 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 179 OF 2001 An appeal from a single Judge of the Federal Court of Australia BETWEEN: BABAK DOBARI APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGES: SPENDER, MERKEL AND ALLSOP JJ DATE: 30 NOVEMBER 2001 PLACE: PERTH REASONS FOR JUDGMENT MERKEL J: 2 The appellant has appealed against a decision of the primary Judge (Carr J) dismissing his application for an order for review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant. 3 The applicant is a citizen of Iran. He applied for a protection visa to enable him to remain in Australia. Although he made a number of different claims concerning discriminatory treatment against him in Iran his claim to be a refugee, and therefore a person entitled to a protection visa, was ultimately based upon his claim to have a well founded fear of religious persecution were he to return to Iran. The claim of religious persecution is based upon the allegation that the appellant was a Shia Muslim who had adopted Christian beliefs and become a Christian convert. If that claim had been accepted by the Tribunal there was a substantial basis for concluding that the appellant could be regarded in Iran as an apostate and face severe punishment. 4 The Tribunal, however, stated that it was "unable to believe" that the appellant's claims about his religious conversion are truthful and therefore did not accept that the appellant was a Christian convert. The appellant had also made certain other claims that suggested he may have a well founded fear of political persecution by reason of his participation in certain anti-government demonstrations in Tehran in July 1999. The Tribunal also did not believe, and therefore did not accept, those claims. It found that both sets of claims did "not cause the applicant to have a well founded fear of persecution in Iran for a Convention reason because they are not truthful". 5 The Tribunal carefully set out in some detail the content of the appellant's claims, presented on different occasions, in respect of his fear of religious and political persecution. The Tribunal analysed the detail of those claims and the manner in which they varied from time to time in the course of explaining why it had concluded that the appellant was not a credible witness. The Tribunal summarised its finding in that regard as follows: "The Tribunal did not find the applicant to be a credible witness. It is clear to the Tribunal that the applicant's claims have developed substantially over time and contain many recent inventions. Although the applicant gave some explanations for the widely differing nature of the various statements of his claims, the Tribunal does not accept these explanations. The applicant has had the opportunity to make his claims on several different occasions. He is represented by a lawyer. His claims have continued to develop at every stage of his application for refugee status." 6 The appellant, both before the primary Judge and the Full Court, sought to demonstrate that the Tribunal had fallen into reviewable error in making adverse credit findings against him. While a credibility finding is not immune from judicial review under Pt 8 of the Migration Act 1958 (Cth) a party seeking to challenge such a finding must confront the difficulty that the finding, (ie whether an applicant should be believed) is "the function of the primary decision maker par excellence" (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] 74 ALJR 405 at 417 per McHugh J). Further, it would usually require an exceptional case for reviewable error to be demonstrated where a Tribunal had made credibility findings that were open on the material before it and made after consideration of matters that were logically probative of the issue of credibility: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 552 and 559. Although challenges to credibility findings may be presented on the basis of reviewable error, often such challenges are, in truth, an endeavour to have the Court reconsider, on the merits, a finding of fact which is the responsibility of the Tribunal, rather than the Court. 7 I turn now to consider the grounds argued before the trial Judge, which have been pursued as grounds of appeal. The first ground was that the Tribunal fell into error by confining itself to a consideration of whether the appellant held Christian beliefs or was a Christian convert. The argument as I understand it was that, properly understood, the appellant's evidence was that he held "counter-Islamic beliefs" whilst in Iran which were religious beliefs broader than merely Christian beliefs. The primary Judge rejected the ground, referring to relevant passages from the Tribunal's decision, stating that: · a fair reading of the evidence given by the appellant to the Tribunal, and the submissions made on his behalf, shows that his claim to a fear of being persecuted for reasons of religion was confined to a fear of persecution on return to Iran if he were to practice his adopted Christian faith; · it was not part of the appellant's case, or of his claims before the Tribunal, that the holding of his Christian beliefs included or extended to the holding of "counter-Islamic beliefs"; · no suggestion was made to the Tribunal that any of the so called "counter-Islamic beliefs" of the applicant brought him to the attention of the authorities independently of the religious considerations with which the Tribunal dealt. 8 I have been unable to discern any error in the primary Judge's approach to this matter. The Tribunal was required to consider the subjective fear of persecution claimed by the appellant and determine whether, objectively, it was well founded. The Tribunal determined that the fear claimed, subjectively, was a fear of persecution by reason of the appellant's Christian beliefs and his conversion to Christianity. It is clear the Tribunal referred to the appellant's conversion to Christianity as meaning his adoption of Christianity as his religion or system of religious belief. That finding was open to Tribunal on the material before it and, indeed, seemed to be compelled by the claim put forward by the applicant in his evidence to the Tribunal. In any event, the Tribunal also considered the potential consequences of the appellant's alleged non-conformism with the tenets of Islam. Accordingly, the review sought on the basis of error on the part of the Tribunal on this ground has not been made out. 9 The appellant also invoked the "no evidence" ground under ss 476(1)(g) and 476(4)(b). It was submitted that the Tribunal based its decision on the "existence of a particular fact and that fact did not exist": see Minister for Immigration and Multicultural Affairs v Rajamanikkam and Anor (2000) 179 ALR 495 at [21]-[22] and Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181. The appellant contended that the adverse credibility findings were based, in three respects, upon "facts" which were said not to exist. The "facts" were as follows: · the statement of the appellant that he came to Australia from Iran because "my beliefs are different to them"; · in the context of stating that he adopted Christian beliefs about ten years prior to coming to Australia (ie in Iran) the appellant stated that he "has been attending the Armenian church services" (ie in Iran); · contrary to the Tribunal's finding, the appellant had not failed to mention he is a Christian convert and had held Christian beliefs for approximately ten years as, in his initial interview shortly after his arrival in Australia, he stated he held "different" beliefs. 10 The reliance upon the no evidence ground in respect of the appellant's statements concerning the above matters is misconceived. The "facts" upon which each of the relevant credibility findings were based were statements made by the appellant, which are not in dispute. What the appellant disputes is the Tribunal's interpretation of those statements, having regard to the context in which they were made. 11 In my view it was open to the Tribunal to treat the appellant as stating he had attended Armenian church services in Iran and that the generality of his statement concerning his "different" beliefs was not sufficient to amount, implicitly or otherwise, to stating he had converted to Christianity or held Christian beliefs. The interpretation and views formed by the Tribunal as to the meaning and significance of the statements were reasonably open to it. Put another way, there was evidence or material that was capable of supporting the particular finding in issue. In any event even if, contrary to my view, the interpretation and views were erroneous they amounted to error, on a question of fact, arising from an erroneous interpretation of statements that were made (ie a fact that did exist) and not an erroneous interpretation of a statement that was not made (ie a fact that did not exist). 12 Accordingly, the grounds of appeal based on the "no evidence" provisions have not been made out. I would add that the grounds would fail, in any event, for the reasons given by the primary judge. 13 It follows that, in my view, the appeal is to be dismissed with costs. Finally, I would like to express my appreciation of Mr Quinlan acting as pro bono counsel for the appellant, which has considerably assisted in the fair disposition of the present matter. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. Associate: Dated: 30 November 2001 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 179 OF 2001 An appeal from a single Judge of the Federal Court of Australia BETWEEN: BABAK DOBARI APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGES: SPENDER, MERKEL AND ALLSOP JJ DATE: 30 NOVEMBER 2001 PLACE: PERTH REASONS FOR JUDGMENT ALLSOP J: 14 I also agree. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justices Allsop. Associate: Dated: 30 November 2001 Counsel for the Applicant: Mr PD Quinlan Solicitor for the Applicant: Mallesons Stephen Jaques Counsel for the Respondent: Mr AA Jenshel Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 30 November 2001 Date of Judgment: 30 November 2001