FEDERAL COURT OF AUSTRALIA Barzegar Qareh Tapeh v Minister for Immigration & Multicultural Affairs [2001] FCA 1829 MIGRATION – application for protection visa – claim of religious persecution in Iran on basis of appellant's conversion to Christianity – whether decision of Refugee Review Tribunal based on finding of credibility – whether appellant identified a ground of review – whether Tribunal had jurisdiction to make the decision under par 476(1)(b) of the Migration Act 1958 (Cth) Migration Act 1958 (Cth) ss 36, 476 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 75 ALJR 1105 cited Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 75 ALJR 679 cited Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 applied QORBAN ALI BARZEGAR QAREH TAPEH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W332 OF 2001 BRANSON, NORTH, GYLES JJ SYDNEY (Heard in Perth) (Heard in part via video link) 20 DECEMBER 2001 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W332 OF 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: QORBAN ALI BARZEGAR QAREH TAPEH APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGES: BRANSON, NORTH & GYLES JJ DATE OF ORDER: 26 NOVEMBER 2001 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W332 OF 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: QORBAN ALI BARZEGAR QAREH TAPEH APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGES: BRANSON, NORTH & GYLES JJ DATE: 20 DECEMBER 2001 PLACE: SYDNEY (Heard in Perth) (Heard in part via video link) REASONS FOR JUDGMENT branson and north jj introduction 1 This is an appeal from a judgment of a judge of the Court whereby an application for an order of review of a decision of the Refugee Review Tribunal ("the Tribunal"), which affirmed a decision of a delegate of the respondent not to grant the appellant a protection visa, was dismissed with costs. The appeal was instituted on 30 July 2001. 2 The Tribunal accepted that the appellant was an unmarried 35 year old Iranian. He arrived in Australia by boat on 3 November 2000 without travel documents. He was refused immigration clearance and has since been held in immigration custody at the Curtin Immigration Reception and Processing Centre ("the Detention Centre"). 3 The entitlement of the appellant to be granted a protection visa is dependent on the satisfaction of the relevant decision maker (in this case the delegate of the respondent and subsequently the Tribunal) that the appellant is a person who: "owing to 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;…" (See the Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 and s 36 of the Migration Act 1958 (Cth) ("the Act"). 4 The appellant's claim to be entitled to a protection visa is based on his asserted fear of being persecuted in Iran for religious reasons, namely his conversion from Islam to Christianity. Pre-hearing claims 5 At the time of the appellant's initial interview, which was conducted on 14 November 2000, he is recorded as having said: "The chance is that you will be identified as an APOSTATE, and the punishment for this is death. This code of punishment is from the 'Old Testament' and Islam has adopted this code. For example I picked up a person in my car, I didn't know him and he clearly told me that I would be recognised as an Apostate." 6 The appellant had the assistance of a firm of solicitors in making his application for a protection visa. In a statement dated 24 November 2000, apparently forming part of the appellant's application for a protection visa, under the heading 'Background', the applicant stated: "About two months before I left Iran I went to Shiraz Jonobi, a locality in Tehran. There are buildings there by the name of 'Park Prince'. I was looking for work and had bought myself a car. After about a month and a half a man came to me while I was in the office of a taxi service and said that I had to go to a clergyman and repent for converting to Christianity. He said that after I had repented I should get a letter from the clergyman. I discussed this request with my family and they said the matter was very serious. It was even more serious because it had come from a fanatical individual rather than from an official source. It was well known to me that other people who had converted to Christianity had been murdered by fanatics and that the government had been powerless or unwilling to stop them. My family said that other people they had heard about had been murdered by fanatics without first having any approach from the Government whatsoever. After that I left Iran immediately in fear of my life." 7 Later in the statement the appellant indicated that he left Iran because he was in fear of his life and that it was fanatical members of the clergy in Iran who he thought would harm him, although it was also possible that he would be persecuted by the government for apostasy which is a serious offence in Iran and punishable by death. The statement asserted that the government of Iran would not take any action to stop fanatical members of the Muslim community in Iran from killing him. 8 The firm of solicitors which had assisted the appellant in applying for a protection visa also prepared submissions on his behalf on his application to the Tribunal for review of the decision of the delegate of the respondent to refuse to grant him a protection visa. The submissions referred to the claims earlier made by the appellant. Under the heading "Applicant's circumstances" the submissions included the following paragraphs: "10. On his return, a man approached the applicant and told him that he must go to a clergyman and repent for converting to Christianity. At that stage the applicant owned a car but had not been able to attain [sic] work. 11. The applicant's family considered the man's approach very seriously as it had come from a fanatical individual. It was well known that fanatics had murdered others who had converted to Christianity and that the Government had been powerless or unwilling to stop it. 12. The applicant was fearful that his conversion to Christianity would lead to his death and he decided to leave Iran immediately to preserve his life." reasons of the tribunal 9 The Tribunal accepted the appellant's evidence that he has converted from Islam to Christianity and that he was baptised as a Protestant Christian in 1997 while living temporarily in Cyprus. 10 The Tribunal did not doubt that the Iranian government has informers among the Iranian population in Cyprus and that the informers would have been aware of the appellant's interest in Christianity. It noted, however, that the appellant was not intercepted on his return to Iran and indeed, the authorities arranged for the issue of a new passport to him which he was able to collect without incident. 11 The Tribunal also noted that it was not the appellant's practice when he returned to Iran to go to church or to preach to other people. In fact, he did not know if there was a Protestant church in Teheran where he lived. The Tribunal concluded that this indicated that his commitment to Christianity was less strong than he would have liked the Tribunal to believe. 12 The Tribunal apparently questioned the appellant about Christian beliefs. It established that he believed that Christmas fell on 26 September and did not know when Easter fell or its significance. The Tribunal concluded that although the appellant had some knowledge of Christianity it did not appear to be sufficient to allow him to evangelise. It found that the limits to his knowledge of Christianity, combined with his desire to avoid trouble through proselytising and his diminished interest in pursuing religious practices in a church, meant that he will not proselytise if he returns to Iran. 13 As to the appellant's claim that he was approached and threatened because of his conversion to Christianity while in Iran, the Tribunal in summarising the appellant's case, recorded: "He told the Tribunal that about two months before he left Iran in late October 2000, he was in that area making arrangements for his new house when he was approached by a fanatical Muslim at the taxi office and told he should go to a clergyman and repent for converting to Christianity. He said that the man was a member of Hezbollahi and worked for a government religious and security agency, and knew him by name. The Applicant explained that he had been telling other people in the taxi office that Iran would not be any good until people stopped being Muslim. His accuser went to the Applicant's car to discuss the matter with him and asked him if he prayed and fasted and if he was a Muslim. He said he was not and the man warned him to obtain the certificate of repent from a Mullah before the Applicant dropped him off. He subsequently discussed the issue with his parents who advised him to escape, particularly as individual fanatics were known to murder Christian converts and the government was powerless to prevent such murders." 14 The Tribunal dealt with the appellant's claim to have been threatened in the following paragraphs from its written reasons for decision: "He claims that he was once approached and threatened while he was in Iran. The person who approached him has changed in character over successive submissions, from a fanatical individual to a security official with a State religious agency. The Applicant told the Tribunal that he was sought out by name by the official at the taxi office because he was known to have criticised the Islamic regime. The Tribunal has doubts that the incident occurred, as the Applicant's own evidence demonstrates that he is very circumspect in situations where he might upset Muslims and it stretches credulity that he would confess to being anti-Muslim and a Christian given that he said he was aware of such people being executed. If he had been as critical as he claims, and had admitted conversion to Christianity, the failure of a state security official to do anything other than tell the Applicant to repent does not sit comfortably with the claims that apostates are executed. It is plausible that the Applicant had made some criticism of the regime and that he was warned by another person. The fact that nothing happened in the wake of that warning, during the two months or so that the Applicant remained in Iran and despite the claim that the Applicant had been identified by a relevant State agency, leads to the conclusion that the State authorities had no interest in him. Such a lack of interest is consistent with his unhindered departure from Iran through Teheran airport, which he stated he left legally and without paying a bribe (Item 43, Part C of the application form). In that respect, the Tribunal notes that the Iranian authorities have stringent security procedures for departing citizens." 15 The Tribunal reviewed information from the Australian Department of Foreign Affairs and Trade, from the United State's State Department's Annual Report on International Religious Freedom for 1999: Iran and the United Nations High Commission for Refugee's publication Background Paper on Refugees and Asylum Seekers from the Republic of Iran (Geneva, January 2001). This information indicated that low-profile converts to Christianity who do not proselytise and go about their devotions quietly are generally not disturbed unless they are involved in other activities which would attract security interest. 16 Although the Tribunal made no express finding to this effect, it appears that the Tribunal may have been satisfied that the appellant feared persecution in Iran. However, it was not satisfied that his fear was well-founded. It found that he did not meet the criterion for the grant of a protection visa identified in [3] above. application for review 17 The application for an order of review of the decision of the Refugee Review Tribunal, which was apparently completed by the appellant personally, contained the following grounds of review: "(a) There was no evidence or other material to justify the making of the decision that the applicant did not have a well founded fear of persecution by reason of his political opinion [indecipherable] if he returned to Iran within the reasonably foreseeable future. (b) The decision involved an error of law being an error of law involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal or both." reasons of the primary judge 18 The learned primary judge, in his reasons for judgment, stated at [5]-[9]: "[The appellant] talked to me about the findings made by the Tribunal. He made clear to me that he regards them as inadequate. He said the Tribunal failed to pay any regard to some of the factual matters to which he referred. He also said he felt he was not able to say everything that he wished. I do not accept the last claim. The Tribunal conducted a video hearing which followed the usual procedure of questions and answers. Contrary to what [the appellant] said to me, it is apparent the Tribunal did not simply act on the basis that, if he was not a member of a particular church, then he could not make a claim based on Christian belief. The Tribunal's reasons disclose questioning about [the appellant's] knowledge and practice of Christianity, both in Iran and in Australia. I explained to [the appellant], at the outset, that the powers of the Court are strictly limited. The Court has power to review decisions of the Tribunal only on the grounds set out in s 476 of the Act. [The appellant] told me he understood this. However, no ground falling within that section was raised. It is clear that [the appellant] does not accept the Tribunal's factual findings but they are not matters I can review under s 476. I am not satisfied that the Tribunal failed to provide a proper hearing. It is apparent, from the Tribunal's reasons for decision, that the Tribunal member took care to understand what [the appellant] was saying about his religious experiences, beliefs and practices. It is understandable that [the appellant] is disappointed at the decision, but this does not mean the Tribunal failed to give him a proper hearing. As I say, it is not for me to decide whether the findings of fact are correct and I do not attempt to do so. I expected [the appellant] would not be legally represented today. For that reason, I considered the Tribunal's decision with some care, before coming into court. I was anxious to see whether the reasons appeared to disclose any ground of review by the Court. I do not think they do and, as I say, none has been identified by [the appellant]. notice of appeal 19 The appellant's notice of appeal was also apparently completed by him personally. The grounds of appeal specified in the notice are as follows: "The applicant will face persecution if he returns to Iran because: The applicant will be executed as an apostate and a convert to Christianity either by Muslim clerics or by individual fanatics if he returns to Iran. The Tribunal concluded that the applicant had a fear of persecution but that it was not well-founded for the reason that there was no real chance that the applicant will proselytise if he returned to Iran." consideration 20 The appellant, with the assistance of an interpreter, conducted his own appeal. The appeal was heard utilising a video link between the Detention Centre and the Court sitting in Perth. 21 The appellant told the Court that the Tribunal member did not quite understand his statement and his claims with the result that the decision of the Tribunal was not based on fact. He asserted that the government of Iran is a terrorist organisation and that he had claimed that the reason why he had to flee Iran was to escape from assassination or being terrorised or executed. 22 The appellant went on to challenge certain factual findings of the Tribunal. For example, he claimed that while Catholic churches and Orthodox churches are significant in Teheran that is no specific Protestant church. This claim was apparently advanced to explain his inability to tell the Tribunal if there is a Protestant church in Teheran. The Tribunal, after reference to a Lonely Planet guide, found as a fact that there are Protestant churches in Teheran. It is not open to this Court to set aside that finding of fact or to interfere with the conclusion concerning the appellant's commitment to Christianity which the Tribunal considered followed logically from it. 23 Further, the appellant claimed that, contrary to the finding of the Tribunal, he was evangelical in Iran. He told this Court: "I did not have much time and I was basically trying to find the holy book and I also have given the news or have been evangelical to my family. …and in Australia at the camp, at the detention centre, there is – I established a church, a Christian church and I attracted 60 – encouraged 60 or 70 people…to attend the church." The Tribunal, however, found that the appellant did not proselytise when he returned to Iran and only told his fiancée that he was Christian after two months. The Tribunal further found, having regard to the appellant's own evidence, that at the Detention Centre he only told his room mates that he is Christian and did not proselytise. This Court is in the circumstances bound by the Tribunal's findings as to the appellant's religious activities. Conduct which may have been engaged in later than the Tribunal's decision is, of course, irrelevant to this appeal. 24 As to the identity of the person who threatened him, the appellant said to the Court: "…[t]he RRT member claims that I have – there were contradictions about the person who threatened me in my claims whereas, your Honour, that wasn't the case. Maybe the reason why it seemed like a contradiction was because in Iran these people or these authorities are not necessarily wearing uniforms at all times. Sometimes they appear in civil clothes and suits but basically they have the authority to arrest people or do whatever they want to do. Recently Mr Khameni, who is the supreme leader, gave amnesty to all of them and forgave them whereas they had committed killings and they had killed people." In response to the question, "Who do you say it was that threatened you?", the appellant said: "Your Honour, the same person. It's just because he was not wearing a uniform and most of the time they don't so it's really difficult to distinguish or differentiate between just normal, regular people and the government authorities. You can only judge by what they're saying." He further said: "Your Honour, if you pay attention to the evidence and what is happening in Iran, basically these are the same people who have committed all the terrors and all the killings in Iran." When pressed as to who it was that he feared in Iran, the appellant responded: "I have the fear, your Honour, of being executed by these radical groups in Iran. These radical groups either are not being chased or arrested or even when they are arrested, Mr Khameni forgives them and releases them." 25 The appellant confirmed that it was his belief that it was a member of the radical groups who threatened him. He disowned having suggested that he was threatened because of his criticism of the regime. He asserted that all the content of the relevant conversation and warning was religious. 26 We have given anxious consideration to whether the appellant's submissions to this Court could justify the conclusion that the Tribunal, in considering the appellant's claim of a well-founded fear arising from the incident in which he was threatened, identified a wrong issue or relied on irrelevant material in the sense discussed by McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 75 ALJR 1105 ("Yusuf") at [82]-[83]. It may be that the appellant should be understood as having argued that the Tribunal assessed the credibility of his claim concerning the alleged threat on the basis that the appellant asserted that he was threatened by a state official when the appellant in fact asserted that he was threatened by a fanatical individual. That is, that the appellant is to be understood as having argued that the Tribunal identified a wrong issue (would a state official have so acted?) or relied on irrelevant material (ie material relevant only to threat by or on behalf of the state) when the appellant's claim related to a fanatical individual rather than a state official. Had the Tribunal made errors of this kind, it may not have had jurisdiction to make the decision reached by it. That is, a potential ground of review under par 476(1)(b) of the Act may have arisen. 27 Although the ground of review provided for by par 476(1)(b) of the Act was not referred to in either the appellant's application to the Court or his notice of appeal, in the circumstances that he was unrepresented before both the primary judge and this Court it may be that, were the ground to have apparent merit, this Court would have considered it expedient in the interests of justice that the notice of appeal be amended and the ground argued and determined on the appeal. It is now clear that, subject to any statutory provisions to the contrary, an appeal to the Full Federal Court from a decision of a judge of the Court is by way of rehearing (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 75 ALJR 679per Gleeson CJ and Gummow J, with whom Hayne J agreed, at [75] cf Duralla Pty Ltd v Plant (1984) 2 FCR 342 (FC)). 28 However, we have reached the conclusion that the appellant's submissions do not justify the conclusion that the Tribunal identified a wrong issue or relied on irrelevant material. 29 The appellant stated emphatically before this Court that the person who threatened him did so on expressly religious grounds. However, as is mentioned above in [14], the Tribunal concluded that: "…the Applicant's own evidence demonstrates that he is very circumspect in situations where he might upset Muslims and it stretches credulity that he would confess to being anti-Muslim and a Christian given that he was aware of such people being executed." This conclusion, in our view, is to be understood as a finding that the applicant's claim to have been identified and warned as an apostate was a false claim. This finding seems to us to stand separately from the following comment by the Tribunal: "If he had been as critical as he claims, and had admitted a conversion to Christianity, the failure of a state security official to do anything other than tell the Applicant to repent does not sit comfortably with the claims that apostates are executed." 30 Moreover, the Tribunal found that, if the appellant's claim about being threatened was to be believed, the threat constituted a warning about criticising the Islamic regime. This is a finding of fact which must be accepted by this Court. Before this Court the appellant asserted that he was not threatened or warned because of his criticism of the regime in Iran. That is, the appellant disclaimed the only kind of threat that the Tribunal was willing to believe that he could have received. 31 It is immaterial whether this Court would have made the same finding of fact as the Tribunal if it had conducted the review undertaken by the Tribunal. The Tribunal's relevant finding was in truth a credibility finding: it found that the appellant's story "stretches credibility". A finding as to credibility "is the function of the primary decision‑maker par excellence" (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405 per McHugh J at [67]). This Court is in the circumstances bound by the Tribunal's findings of fact. 32 For the above reasons, in our view, the decision of the Tribunal was not open to review on the basis that the Tribunal did not have jurisdiction to make the decision which it purported to make (par 476(1)(b) of the Act). 33 The other matters raised by the appellant before this Court sought either to challenge findings of fact made by the Tribunal or to place additional evidence before this Court - or both. None of the matters provided any basis for a conclusion that the decision of the primary judge should be set aside. 34 In short, the appellant has not raised any ground of review identified in s 476 of the Act before either the primary judge or this Court. No basis for disturbing the decision of the primary judge to dismiss the application before him with costs has been identified. This appeal must similarly be dismissed with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson and North. Associate: Dated: 20 December 2001 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 332 OF 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: QORBAN ALI BARZEGAR QAREH TAPEH APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: BRANSON, NORTH and GYLES JJ DATE: 20 DECEMBER 2001 PLACE: SYDNEY (Heard in Perth) (Heard in part via video link) REASONS FOR JUDGMENT GYLES J: 35 I have had the advantage of reading the joint judgment of Branson and North JJ in draft. I agree with the conclusion that the appeal should be dismissed with costs, and I agree with the substance of their Honours' reasons for that conclusion. 36 I would add that, in my opinion, nothing has been put forward on the appeal to establish, in the circumstances of this case, any basis upon which the primary judge should have questioned the account of the appellant's claims given by the Refugee Review Tribunal in its reasons for decision. According to that account, the person giving the warning to the appellant which he relies upon was connected with the State. That claim, even if accepted, was dealt with by the Tribunal. I would also add that I am not persuaded that the Tribunal was satisfied that the appellant feared persecution if he returned to Iran. 37 It is unnecessary to consider whether a case of this kind could involve a breach of s 476(1)(b) of the Migration Act 1958 (Cth). It is also unnecessary to consider whether it would be appropriate for a new case to be made in the Full Court in accordance with the principles referred to in Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 at pars [16] to [19] and [23], which are applicable whether or not the appeal is stricto sensu or a rehearing (see Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 75 ALJR 679 at [75]). I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 20 December 2001 The Appellant appeared in person via video link Counsel for the Respondent: Mr L A Tsaknis Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 26 November 2001 Date of Judgment: 26 November 2001