FEDERAL COURT OF AUSTRALIA Saadat v Minister for Immigration & Multicultural Affairs [2001] FCA 1916 MIGRATION – protection visa – application for review of decision of Refugee Review Tribunal – Iranian applicant claimed to be Zoroastrian convert – whether applicant faced real risk of persecution if returned to Iran – whether Tribunal erred by drawing inferences about likelihood of persecution of Zoroastrians based on country information about Catholics in Iran Migration Act 1958 (Cth) ss 13, 14, 36(2), 65, 189, 196, 476 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [84] cited PAYAM SAADAT v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 263 of 2001 LEE J 28 NOVEMBER 2001 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 263 OF 2001 BETWEEN: PAYAM SAADAT APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: LEE J DATE OF ORDER: 28 NOVEMBER 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 W 263 OF 2001 BETWEEN: PAYAM SAADAT APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: LEE J DATE: 28 NOVEMBER 2001 PLACE: PERTH REASONS FOR JUDGMENT 1 This is an application under s 476 of the Migration Act 1958 (Cth) ("the Act") for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") which affirmed a decision of a delegate of the respondent ("the Minister") that the applicant not be granted a "protection visa". 2 The applicant is 26 years old and a citizen of Iran. He entered the Australian migration zone without a visa on 22 December 2000. Pursuant to ss 13 and 14 of the Act, the applicant became an "unlawful non-citizen" upon entry. Under ss 189 and 196 of the Act, the applicant was placed in "immigration detention" and has been kept there ever since. On 8 January 2001 the applicant lodged an application for a protection visa. Grant of the visa was refused by a delegate of the Minister on 3 April 2001 and the applicant applied to the Tribunal for review of that decision. The Tribunal made its decision on 5 June 2001. 3 Under s 65 of the Act, if the Minister is satisfied that, inter alia, the criteria for a visa prescribed by the Act have been satisfied, the Minister is to grant the visa, but if the Minister is not so satisfied, the grant of the visa is to be refused. 4 At material times, s 36(2) of the Act provided the following criterion in respect of a protection visa: "A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." 5 In s 5 of the Act, "Refugees Convention" and "Refugees Protocol" (together referred to as "the Convention") are defined respectively as "the Convention relating to the Status of Refugees done at Geneva on 28 July 1951" and "the Protocol relating to the Status of Refugees done at New York on 31 January 1967". The term "protection obligations" is not defined in the Act and is not a term used in the Convention. 6 The Convention is a treaty pursuant to which the "Contracting States" agree to apply the provisions of the Convention to a "refugee". Sub-Article 1(A) of the Convention defines a refugee as follows: "For the purposes of the present Convention, the term 'refugee' shall apply to any person who: … (2)…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;…" Exceptions to, or cessations of, the operation of that definition are set out in, inter alia, sub-sub-Articles 1(C), 1(D), 1(E) and 1(F). It was not contended that any of the foregoing sub-Articles applied to the circumstances of the applicant. 7 As a Contracting State, Australia has undertaken the obligations imposed on Contracting States by the Convention, save for the obligations set out in Article 32 which, by a statement of reservation, Australia declined to accept when it acceded to the Convention on 22 January 1954. 8 Numerous obligations in respect of refugees are set out in the Convention, including undertakings by a Contracting State not to discriminate against a refugee, and to offer a refugee some of the opportunities available to a national of that State. All such obligations may come within a broad meaning of "protection obligations" but as used in s 36(2) of the Act, the meaning of the term is directed to the specific obligations undertaken by Australia not to penalize a refugee who has entered Australia without authority having come directly from a territory where the life or freedom of that person was threatened for a Convention reason, and not to expel or return a refugee to the frontiers of a country where the life or freedom of the refugee would be so threatened. 9 The applicant bases his application on the claim that he has a well-founded fear of persecution in Iran because he is a Zoroastrian, or at least is in the process of conversion. It may take up to five years before one can claim to be a convert. The applicant claims that he was introduced to the faith by a young woman who was a Zoroastrian. The young woman gave him some publications to read. He says he followed up on the faith by visiting the grave of the founder in Yazd, and undertaking the process by which he would become a full convert. This involved participating in ceremonies and going to sermons over a period of about two years. 10 The applicant had been a surveyor and draftsman. There had been some trouble in his family, with his father being investigated for corruption. In June or July 2000, the applicant says the authorities came to his workplace carrying arms. He claims that he was put in a car and driven to a building about one and a half hours away. The applicant says he was told that he was taken there because they knew he wanted to convert to the Zoroastrian faith. He was further told that if his conversion could be proved he would be killed. He was urged to respect the blood of the martyrs and not convert. The authorities also accused his father of stealing money and questioned him as to how much money his father had deposited in his account. 11 The applicant says he was interrogated for 36 hours. The next day, he was taken to his house where the authorities found some Zoroastrian books and photographs of him and his friend at the shrine. He also had some banned books. He says that while the officers were looking at the books, he jumped out a window and escaped. He managed to get a private car to take him to a friend's house. He further claimed that shortly after his escape, he had learned that his mother had been told that, unless he returned within 24 hours, they would issue an execution order against him. He says he made contact with his uncle, who advised him to go to a village where arrangements were made for him to leave Iran at the end of October 2000 using, what he says was, a passport issued in someone else's name. 12 At the Tribunal hearing, the applicant's adviser submitted that the Tribunal must consider the possibility of apostasy being imputed to the applicant. He submitted that the applicant's problems were compounded by a connection with his late father. 13 In its findings, the Tribunal accepted that the applicant knew a significant amount about the Zoroastrian faith. However, it had "considerable doubts" about the applicant's conversion. It then went on to consider whether, even if the applicant had converted, desired to convert, or was in the process of converting, there was a real chance that he would be harmed because of this: "In this regard the Tribunal considers the situation of Catholics referred to above to be instructive. Whilst there are in theory strict laws against Muslims converting the practice in relation to converts to the Catholic church as the Canadian information indicates appears to be that this is not a problem in practice. Indeed it seems that as long as a convert goes about the business of practising their new faith without seeking to convert others, that person will not have problems. Whilst the Tribunal has not been able to find any information specifically about converts to Zoroastrianism, assuming they accept converts, and the applicant's adviser also indicated that he had not found any, the Tribunal considers it reasonable to infer that a convert would not be in any different situation to that of a convert to Catholicism. As a result the Tribunal concludes that if the applicant has converted to Zoroastrianism there is no real chance he will face persecution because of this. The Tribunal considers that the tenor of the [country] information is that whilst there are severe penalties for apostasy these are not regularly applied and it is in a situation where someone tries to convert others from Islam that the force of the law is applied. The applicant did claim that he would have to try to convert others. However the Tribunal does not accept that this will be the case. Firstly he has not done anything in the way of converting others in the past. Secondly the Tribunal concludes from the acceptance of Zoroastrianism as an official religion means that Zoroastrians do not seek converts from Islam. The Tribunal has no doubt that if Zoroastrians practised proselytising the country information would indicate severe crackdowns against it. As this is not evident from the country information about Iran, and indeed the Tribunal has not located any information about converts to Zoroastrianism, the Tribunal concludes that it is not the case that Zoroastrians seek converts. As a result the Tribunal does not accept that the applicant will seek converts as he has claimed." 14 The Tribunal dealt with the applicant's claims that he was detained for reasons of his conversion as follows: "The applicant has claimed that his connection with his father led to him having problems. It is of course possible that the applicant's father was accused of embezzlement. It is also possible that queries were raised about the applicant's involvement. This may even explain his detention if it occurred. However if it did occur for this reason then it would not be Convention related. In any event the Tribunal is not satisfied given the country information about ordinary people not having problems in relation to converting that the authorities would question and detain him about his father's problems and about converting at the same time. The Tribunal also concludes given the country information about converting that the applicant has not faced any other problems as a result of his claimed conversion. The Tribunal also considers that the applicant's account of escaping from custody out of a window, after books were found in his house, to be far fetched. If he had really been in custody and if he was taken to his house for it to be searched the Tribunal does not accept that he would be able to jump out of a window and, with an injured leg, escape. The Tribunal considers this account far fetched. Given this the Tribunal does not accept that the applicant was in custody because of an alleged conversion or that his house was searched and he escaped. It follows that the Tribunal also does not accept the applicant's claim that his mother was threatened that if he did not return within twenty four hours there would be an execution order issued against him. Given all of this the Tribunal does not accept that the applicant is already suspected of converting or that his interest in Zoroastrianism is known to the authorities." 15 The Tribunal then dealt with the issue of the applicant's departure from Iran as follows: "The Tribunal considers it likely given the country information about departure that the applicant left on his own passport. In the Tribunal's view it is most unlikely that the applicant having escaped in a dramatic manner would be assisted by someone in the intelligence for a bribe. However even if the applicant did leave illegally using a false passport the country information indicates that the penalty for illegal departure is a fine. The Tribunal concludes from the country information above that neither departing illegally nor applying for refugee status will cause the applicant problems serious enough to amount to persecution should he return to Iran. Taking all of the applicant's claims into account the Tribunal finds that there is no real chance the applicant will face persecution for a Convention reason should he return to Iran. The Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason." 16 Counsel for the applicant, appointed under O 80 of the Federal Court Rules to act pro bono publico, challenged the Tribunal's decision on six grounds. 17 Ground 1. Counsel submitted that the Tribunal erred in that it failed to consider a relevant issue (Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [84]), namely, whether independently of the absence of any such evidence in the country information about the Zoroastrian community overall, members of the group that the applicant was seeking to join were actually engaged in proselytising activities and, therefore, could be perceived by Iranian authorities to be seeking converts to that faith. 18 The Tribunal had before it a range of country information. One 1996 Australian Department of Foreign Affairs and Trade Country Profile on Iran specifically mentioned Zoroastrianism, stating that since the death of Khomeini "there is no evidence to suggest that Zoroastrians suffer any grave or systematic discrimination or harassment solely on account of their religious affiliation". A United States Department of State Country Report for 2000 on Iran also specifically mentioned Zoroastrianism, saying that "[t]he Christian, Jewish, Zoroastrian, and Baha'i minorities suffer varying degrees of officially sanctioned discrimination, particularly in the areas of employment, education and public accommodations…" 19 The Tribunal had no country information specifically dealing with the issue of Muslims who convert to Zoroastrianism, although the US State Department Country Report, mentioned above, stated that apostasy, or conversion from Islam to another religion may be punishable by death. The only other information dealing with conversion, related to the Christian religion. Those reports gave varying accounts of the degree of harassment facing Christian converts. The Tribunal said that it had been unable to find any information specifically about converts to the Zoroastrian faith, and that the applicant's adviser had also been unsuccessful in this regard. On that basis the Tribunal considered it reasonable to infer that a convert would not be in any different situation to a Catholic convert. It found, based on Canadian information, that while there were strict laws against Muslims converting, it was not a problem in practice, particularly if the convert did not seek to convert others. It went on to conclude that because the information indicated Zoroastrianism was an official religion, Zoroastrians do not seek converts. It also reasoned that if Zoroastrians proselytised, the country information would have indicated severe crackdowns against it; and that was not the case. 20 It was open to the Tribunal to draw the inferences it did, in the absence of any evidence put before the Tribunal directly addressing the issue of whether Zoroastrians in Iran were actually involved in proselytising, and no error of law on the part of the Tribunal has been established. 21 Grounds 2 & 3: These grounds, which also contended for the occurrence of errors of law, deal with similar issues to Ground 1. The Tribunal drew inferences about the likelihood of persecution of Zoroastrians based on the country information before it regarding Catholics. In part, the parallel was drawn because each was an officially recognised religious minority. As stated above, in the absence of any direct evidence presented to the Tribunal about the treatment of Zoroastrians, it was open to the Tribunal to draw the inferences it did and no error of law is made out. 22 Ground 4: This ground related to the issue of the applicant's detention by police. The Tribunal found that it was possible that the applicant's father was accused of embezzlement and, if the applicant was detained, it was possibly related to this. It stated that if he was detained for this reason, that would not be a circumstance that occurred for a Convention reason. It also was not satisfied that the authorities would question and detain him about the embezzlement and the conversion at the same time. Later in its reasons, the Tribunal expressly rejected the claim that the applicant was in detention because of an alleged conversion. 23 At the hearing before this Court, the issue was raised as to whether, even if the embezzlement was the primary cause of the detention, the applicant's conversion was an issue for the authorities because they could use it to threaten his life in order to gain further information about what would ordinarily be a criminal matter. The applicant gave evidence that the authorities told him they had taken him away and detained him because they knew he wanted to convert to the Zoroastrian faith. During the detention they also questioned him about the alleged embezzlement. At the same time, they had allegedly told him that if his conversion could be proved, he would be killed. In other words, because the authorities wanted information from him about another matter, the applicant's religion and the possible severe penalties for that, could be used against him. Therefore, the applicant did not fit into the category of "ordinary people" who did not have problems relating to conversion. The authorities had other motivations to focus on his religion. This, therefore, was a case that could not be dealt with on the basis of generalised country information. While in the normal run of cases, Zoroastrians may be allowed to practise their faith without disturbance, this person is different because authorities wanted information from him about another matter. They were prepared to use his conversion to threaten him with the possibility of death in the event he did not co-operate. This had happened in the past, therefore, there was a real risk that his perceived apostasy could be used against him in future. 24 Counsel submitted that the Tribunal, by basing its finding that the detention was not related to religion on the country information about "ordinary people", excluded a relevant issue in assessing the degree of risk for this particular individual. That is, the possibility that there could have been more than one reason for his detention. 25 However, the Tribunal expressly rejected the claim that the applicant was in custody because of his possible conversion, or that his house had been searched and he had escaped. At least in part, the Tribunal bases these findings on the applicant's account of his escape from custody after banned books were said to be found in his house. The Tribunal described the account as "far fetched". It then went on to expressly reject the claim that the applicant was already suspected of converting or that his interest in Zoroastrianism was known to the authorities. 26 These findings were open to the Tribunal and no error of law, as submitted by the applicant, arose. 27 Ground 5: This challenged the Tribunal's finding that if the applicant had left Iran on a false passport, there was no real chance that he would face serious problems if he did return. Counsel submitted that in drawing this conclusion, the Tribunal considered only the prospect of a fine for leaving the country illegally without asking whether the authorities would also take into account his claims in relation to his conversion. 28 However, as Counsel for the Minister submitted, the Tribunal directly addressed the possibility of the applicant's conversion and made a finding that there was no real chance that he would be prosecuted because of it. The Tribunal also expressly found that the authorities were not aware of his conversion. 29 Ground 6: Finally, Counsel submitted that there was no relevant evidence or other material before the Tribunal to justify its decision. Specifically, it was argued that there was no evidence from which the Tribunal could infer that Zoroastrians were necessarily treated the same as Catholics in Iran. For the reasons stated earlier in respect of the preceding grounds, that submission must be rejected. 30 The application, therefore, must be dismissed. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate: Dated: 4 March 2002 Counsel for the Applicant: P W Johnston (pro bono publico) Counsel for the Respondent: L B Price Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 28 November 2001 Date of Judgment: 28 November 2001