Kamaei v Minister for Immigration & Multicultural Affairs [2001] FCA 1917

FEDERAL COURT OF AUSTRALIA

Kamaei v Minister for Immigration & Multicultural Affairs [2001] FCA 1917 MIGRATION - applicant claims he was set-up with drugs by Islamic forces angered at his rejection of Islam - applicant claims to be Christian convert - whether real risk of persecution if returned to Iran Migration Act 1958 (Cth) ss 5, 36, 65, 476

Abebe v Commonwealth (1999) 197 CLR 510 KAMRAN KAMAEI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 200 OF 2001 LEE J 11 DECEMBER 2001 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRLIA DISTRICT REGISTRY W 200 OF 2001

BETWEEN: KAMRAN KAMAEI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LEE J

DATE OF ORDER: 11 DECEMBER 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 AUSTRLIA DISTRICT REGISTRY W 200 OF 2001

BETWEEN: KAMRAN KAMAEI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LEE J

DATE: 11 DECEMBER 2001

PLACE: PERTH

REASONS FOR JUDGMENT 1 This is an application under s 476 of the Migration Act 1958 (Cth) ("the Act") for 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 an Iranian national, 34 years old, who entered Australia's "migration zone" on 9 November 2000. Under ss 13 and 14 of the Act, the applicant became an "unlawful non-citizen" upon entry. Pursuant to ss 189 and 196 of the Act, he was placed in "immigration detention" and has been kept there ever since. 3 On 26 November 2000, the applicant applied for a protection visa. Grant of the visa was refused by the delegate of the Minister on 1 February 2001, and the following day the applicant applied to the Tribunal for a review of the Minister's decision. The Tribunal made its decision on 21 May 2001. 4 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. 5 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." 6 In s 5 of the Act, "Refugees Convention" and "Refugees Protocol" (together referred to hereafter 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. 7 The Convention is a treaty pursuant to which the "Contracting States" agree to apply the provisions of the Convention to "refugees". Sub-Article 1(A) of the Convention provides the following definition of "refugee": "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 cessation of, the operation of the Convention definition of refugee are set out in, inter alia, sub-Articles 1(C), (D), (E) and (F). It was not contended that any of the foregoing sub-Articles applied to the applicant. 8 As a Contracting State, Australia has the obligations imposed on Contracting States by the Convention. Numerous obligations in respect of refugees are set out in the Convention, including an undertaking 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 in s 36(2) that term has a meaning limited to the direct obligations to protect a refugee that Australia has accepted as a Contracting State, namely, not to penalize, or restrict the movement of, 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. 9 The applicant's claim that he feared persecution if returned to Iran was, in part, based on events that the applicant claimed occurred in Iran before his departure and, in part, on events that occurred in Australia after his arrival. 10 The relevant events that occurred in Iran started at the applicant's workplace. The applicant worked as a construction supervisor at an oil company. In a statement to the Tribunal, the applicant said that after he had been working there for two years, a new board of directors was put in place, which "emphasised the importance of religion". The applicant, in his words, "did not believe in religion and experienced problems". These problems included constant verbal abuse and accusations that he was a "communist". 11 The applicant said that, as part of his responsibilities, he had to oversee the work of contractors. He contended that the board of directors had links with the contractor he was supervising and expected him to uncritically approve their work. This included approving claims for payment that exceeded the value of their work. However, he refused to turn a blind eye and approve the claims. As a result, the contractors went to the directors, who, he said, accused him of taking bribes, and sacked him in about April 1996. He was reinstated about four months later, but was suspended again after, once more, refusing to pay "excessive amounts" claimed by the contractors. 12 He said that, after a few months, the company contacted him and called him into the workplace. He was accused of taking bribes and criticised for not praying or practising Islam. He says he admitted he did not believe in Mohammed. This allegedly prompted an assault by two people, and he was threatened that they were "going to kill" him. He was officially dismissed and told he would not be able to work for any other government organisation. 13 Shortly after, he says a bus he was travelling on with a friend was stopped at a checkpoint. A box of fruit he was carrying was inspected. Officers found about two kilograms of drugs in a secret compartment. He told the Tribunal that he was taken to court where he and his friend received the same penalty - a fine of 1,200,000 Tuman, 80 lashes and a three to five-year suspended prison sentence. However, they could not afford the fine so they both went to jail until February 2000, when they were pardoned. 14 The applicant contends that his arrest for the drugs was a set up by "Islamic forces" angered by his rejection of Islam. He said some men, wearing balaclavas, had apparently arrested his friend and threatened him with death unless he co-operated in planting the drugs on the applicant. His friend had relayed a "message" from these people to the applicant: "get out of the country or be killed". After he was released from prison the applicant decided to leave Iran because he was "in fear for my life". He says these "Islamic forces" have no qualms about killing people for the sake of their religion. 15 The applicant says he fears that, if he returns to Iran, the "Islamic forces" will kill him because he insulted Mohammed. He also claims he lost his job because his employer discriminated against him on the basis of his lack of commitment to Islam. 16 Further, the applicant now regards himself as a Christian, and fears future persecution because of his conversion. In a submission to this Court, the applicant says that he was baptised on 8 July 2001, after his arrival in Australia. (This was after the hearing before the Tribunal, which noted that the applicant was "not baptised".) He says that he has even been threatened by his own family over his conversion. 17 The Tribunal, overall, found the applicant not to be a "credible or a reliable witness in relation to various aspects of his claims". It stated that "significant aspects of the applicant's evidence were internally inconsistent and inconsistent with the independent evidence". It detailed the "inconsistencies" as follows: "A statement was received at the Tribunal on 9 March 2001 which purports to be a typed version of a statement of the applicant. This statement appears to contradict what he told the Tribunal at hearing in several aspects. He states that he was 'responsible for both my parents…' yet he told the Tribunal his father funded his trip to Australia and his father retired from work and received a substantial payment as a result. One of his relatives told him 'they planned to kill me' yet he did not state this to the Tribunal . He states 'I was sent to jail without even a hearing' yet he told the Tribunal he pleaded guilty before a court to possession of 2 kilograms of opium and was sentenced after submissions were made to the court for the drug offences." 18 It is questionable whether the matters referred to constituted "inconsistencies". For example, the applicant had said in a typed statement that one of his relatives had told him "they wanted to kill him", but had not stated this to the Tribunal. It is difficult to appreciate how this could be seen as an inconsistency. The Tribunal did not ask him about the issue. So, too, the written statements by the applicant that he was "responsible for both my parents" and that he was "sent to jail without even a hearing". Where English is not the first language of the applicant and his account is filtered through an interpreter, apparent "inconsistencies" may be explained by looseness in the words chosen by the interpreter. Indeed, in a submission to this Court, the applicant denied that he said he was "responsible for both his parents". Furthermore, "responsible" may not mean economic responsibility as interpreted by the Tribunal. Being sent to jail "without even a hearing" was not necessarily a new claim that he had been dealt with without being charged or tried, but that he had been being sent to jail without a fair or proper hearing on the matter of penalty. However, despite the Tribunal's reference to "credibility", the ultimate determination of the Tribunal did not turn on any purported finding on credibility and the foregoing may be put to one side. 19 In relation to the applicant's claimed drug conviction, the Tribunal said as follows: "I do not accept that the applicant has been truthful in relation to his claims about possession of a substantial quantity of opium. I find his claims that his friend was forced to plant the drugs on the applicant and yet still received an identical punishment and no benefit implausible. The applicant's claim that he was followed and set up by people he had offended in Ahwaz for simply being involved in anti corruption activity is not plausible in the circumstances. If the applicant was convicted of drug offences I do not accept that the applicant was set up. I have grave doubts about his claim that he is a convicted drug carrier even though he has made the claim consistently since his arrival. However if it is true, despite the harsh treatment of those convicted of drug offences referred to in the country information above the applicant was released early from prison after a relatively lenient penalty under an amnesty. If his claim is true and he entered a guilty plea to a serious drug offence the evidence indicates that the courts treated him very fairly. There is no question that with such lenient treatment the applicant was imputed with an anti government political opinion. Indeed the evidence would indicate the opposite is the case. I am aware of country information that indicates there are reports of the use of drug charges against political opponents. However given the applicant's claim that he was involved in politics at such a low level I do not accept that this is the case in his circumstances. I am not satisfied that the applicant has a profile that would place him at risk of any difficulty for this reason. I do not accept that there was any Convention reason for the applicant's arrest and conviction for drug offences. The lenient treatment the applicant received is also an indication that he was not imputed with any anti-religious motive. I reject this claim that he was set up by persons seeking revenge for his claimed anti-religious statements made during his employment." 20 The Tribunal acknowledged that the applicant "may well be a genuine Christian" but was "not satisfied" that the applicant was at risk of persecution because he wanted to be a Christian. It dealt with the issue as follows: "In relation to his claims relating to Christianity I note he has told no one except family members of his intention to become a Christian. DFAT [The Department of Foreign Affairs and Trade] advised that converts to Christianity would in almost all cases not suffer particular problems if returned unless they declared their new religious affiliation to the authorities on their return…Further DFAT advised that apostasy was regularly reported as carrying a death sentence but there were only one or two high profile cases where this sentence had actually been imposed…Also that the evidence was that converts to Christianity who went about their devotions quietly were generally not disturbed…A delegation from a western country had visited the Assemblies of God church in Tehran and they had been told that the Government appeared to be prepared to turn a blind eye to conversions, as long as the church was very discreet and low key in its proselytising activities. The delegation had observed Bible classes being openly conducted at the church…The applicant claims he is a Christian although clearly he knows little about Christianity and has never had the opportunity to seriously investigate other religions. He has had little opportunity to explore the Christian faith. He does not know about the differences between the various Christian congregations. Because he has not explored these differences it is difficult to know what form, if any, of Christianity he may follow. He has one friend in Iran with whom he discussed Christianity and he has not read the entire Bible, although he claims he had one at home. What is clear is that he is not interested in the public aspects of the practice of Islam. He rejected this some years ago and encountered no specific difficulty. This is not surprising as the…advice is that the custom of attendance in Christian countries for formal worship does not correspond directly to the practice of Mosque attendance in Iran. A Mosque is more a community centre and a gathering place for the religiously minded classes and friends of the regime. The exceptions to this are the shrine Mosques (emamzadeh) to which people make pilgrimages. More Westernised Iranians would now rarely visit mosques except on special occasions, such as funerals. There is no compulsion on anyone to attend the Mosque. I am not satisfied that authorities would be aware of the applicant's conversion or that this now or in the reasonably foreseeable future gives rise to a fear of persecution for him. I have no reason to believe that the applicant would be interested in the public aspects of Christianity, as it is his evidence that he is attracted to Christianity because of the opportunity for private prayer. The applicant has seen the Uniting Church Minister in the detention centre, in which he resides and the applicant may well be a genuine Christian. However I am not satisfied that the applicant is at risk of persecution because he wishes to be a Christian. I accept the DFAT advice that converts to Christianity would in almost all cases not suffer particular problems if returned unless they declared their new religious affiliation to the authorities on their return and that converts to Christianity who went about their devotions quietly were generally not disturbed. I have no evidence to suggest that the applicant would go about his devotions in any other manner." 21 The Tribunal went on to find, based on "independent evidence", that it was "not satisfied" that the applicant was at risk of persecution by reason of applying for refugee status in Australia. The Tribunal appeared to acknowledge that the applicant had had "difficulties" with people in the oil company (and associated organisations) where he had worked. However, it was "not satisfied" that "his problems in the work place…related to corrupt activity and his faith will be replicated throughout Iran" and, therefore, "if the applicant faces any risk that risk of persecution for the applicant is confined to certain parts of Iran and does not extend to Iran as a whole". The Tribunal concluded that these problems could be overcome by relocation within Iran, which was a "reasonable and feasible option for the applicant". 22 The applicant was not represented before this Court. He provided the Court with handwritten submissions, which read as follows: "There are some errors at the member's decision as follows: 1. I'm wondering when I see some inconsistent [statements in] the member's decision because he rejected my claim that I was set up by persons seeking revenge for my claimed anti-religious statements made during my employment. But in the other side he stated, I am satisfied that if the applicant faces any risk that risk of persecution for the applicant is confined to certain parts of Iran and does not extend to Iran as a whole. His evidence indicates that the greatest risk is found in certain parts of Ahwaz. His difficulty involved people associated with the company with which he worked some years ago - so these statements are inconsistent. 2. The member of Tribunal stated, …other destinations in Iran like Tehran are feasible, at least as temporary havens, until the tensions in Ahwaz subside. I am satisfied relocation is a reasonable and feasible option for the applicant. But at the end of same page the member of Tribunal stated I am not satisfied that the applicant will encounter difficulties throughout Iran. These statements are very inconsistent. 3. The member of Tribunal stated I am not satisfied that the applicant is at risk of persecution because he wishes to be a christian. But my father had [threatened] me when he realized I baptised in the detention centre, on telephone, [he] told me that he was going to stand against me himself, I baptised at July 8 – 2001. 4. The member of Tribunal stated that I was responsible for both my parents but I didn't claim it because this the [mistake] of the person who had … translated my statement and owing to I can't understand English so this wrong happened." 23 The applicant also made some further oral submissions at the hearing, assisted by an interpreter. First, he contended that the Tribunal had misunderstood the significance of his imprisonment in relation to the alleged drug offences. The penalty may not have been in proportion to the offence, but the criminal charge was simply a trap and a way of giving him a warning. His problems had started when he attacked the "Prophet of Islam" at a meeting with the Islamic committee at the oil company. He submitted that the clergymen or clerics were all powerful; they held high positions in politics and the judiciary, and would charge non-believers with criminal offences as a way of controlling them, or warning them to leave. He contended that the Tribunal had missed this point, instead emphasising the lack of proportion between the drug charge and the penalty to undermine his claim. In essence, he submitted that these Islamic forces did not operate under the rule of law – they simply made up the rules to suit themselves - therefore, the lack of proportion between alleged crime and penalty could not be used to undermine his credibility. 24 Second, the applicant contended that the Tribunal had, at the least, not adequately considered the issue of his conversion to Christianity. He submitted that his conversion had already caused him problems in his own family. He took issue with the Tribunal's statement that relocation to a city like Tehran could be a reasonable solution to any problems he had in his own city; he contended his problem was with "Islamic forces" in Iran, not simply people in his city. 25 An application to the Court under s 476 of the Act does not involve redetermination of the applicant's case. What must be shown is, in effect, an error of law amounting to failure of the Tribunal to perform its duty under the Act. 26 The Tribunal did use the lack of proportion between the drug charge and the penalty to draw conclusions adverse to the applicant's claim. For example, it concluded that "there is no question that with such lenient treatment the applicant was imputed with an anti government political opinion". It also stated that the "lenient treatment the applicant received is also an indication that he was not imputed with any anti-religious motive". 27 The Tribunal rejected the applicant's claim that he was "set up by persons seeking revenge for his claimed anti-religious statements made during his employment", but did address the issue that drug charges were used against political opponents. Indeed, a DFAT report (Country Profile – Islamic Republic of Iran, March 1996) referred to by the Tribunal, stated that "Iran has used drug trafficking charges as a cover to get rid of political opponents". The Tribunal, however, considered such a circumstance to be unlikely in the applicant's case "given the applicant's claim that he was involved in politics at such a low level". 28 Those conclusions were open to the Tribunal on the material before it. 29 In reference to the second issue raised by the applicant at the hearing, it cannot be said that the Tribunal did not consider the applicant's conversion to Christianity. The following comments of the Tribunal may have suggested that the applicant's belief in Christianity was not accepted, namely, that the applicant had "told no one except family members of his intention to become a Christian" and that he had "not read the entire Bible". In the circumstances, where apostasy is a capital offence, it would not be surprising that he told no one apart from his family. Also, many people subscribing to the Christian faith would not have read "the entire Bible". 30 In fact, the Tribunal acknowledged that the applicant "may well be a genuine Christian" but was "not satisfied" that the authorities would be aware of the applicant's conversion or that, in the reasonably foreseeable future, he may be at risk of persecution because of his Christian beliefs. 31 The Tribunal referred to the DFAT report, mentioned above, which discussed the fate of Christian converts in Iran. It said that such converts would, in almost all cases, not suffer particular problems if they were returned to Iran, unless they declared their new religious affiliation to the authorities. Apostasy was regularly reported as carrying the death sentence, but there were only one or two high profile cases where this sentence had actually been carried out. The profile also stated that converts who went about their devotions quietly were generally not disturbed. The Tribunal accepted this material, and stated that there was no evidence to suggest that the applicant would go about his devotions in a manner other than quietly. 32 That finding was open to the Tribunal on the material before it, and no error of law is revealed. 33 The written submissions put forward by the applicant raised what he contended were a number of inconsistencies on the part of the Tribunal in its reasons. 34 These included rejection of the applicant's claim that he was set up (with the drugs) by people seeking revenge for his anti-religious statements, while later stating that if the applicant did face a risk of persecution, the risk was confined to certain parts of Iran, and could be avoided by relocating. The applicant also disputed the Tribunal's statement that he had said at one stage that he was responsible for both his parents. He said this was a misinterpretation of his words. 35 As discussed above, the latter issue was not critical to the ultimate findings of the Tribunal. The former issue was, as submitted by counsel for the respondent at the hearing, addressed by the Tribunal, correctly, by considering what would be the consequences for the applicant if events had occurred as claimed by him. (See: Abebe v Commonwealth (1999) 197 CLR 510 per Gleeson CJ, McHugh J at [83]) The Tribunal concluded that in the circumstances it was reasonable for the applicant to relocate within Iran, as it found that the people with whom the applicant had experienced problems were confined to one region of Iran. This finding was open to the Tribunal on the material before it.