W161/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 285

FEDERAL COURT OF AUSTRALIA

W161/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 285

MIGRATION – refugee – refusal of a protection visa – application for review of Refugee Review Tribunal decision –– applicant had rejected Islam and claimed to have been entrapped by security agent – whether applicant faced real risk of persecution if returned to Iran Migration Act 1958 (Cth) ss 5, 36, 65, 476 Abebe v Commonwealth of Australia (1999) 197 CLR 510 cited Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 at 469-470 cited

Hussain Islamic Law and Society 1999 W161/01A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 161 OF 2001 LEE J 18 MARCH 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 161 OF 2001

BETWEEN: W161/01A

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LEE J

DATE OF ORDER: 18 MARCH 2002

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 161 OF 2001

BETWEEN: W161/01A

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LEE J

DATE: 18 MARCH 2002 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 a "protection visa" not be granted to the applicant. 2 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. 3 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." 4 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. 5 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;…" 6 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. 7 As a Contracting State, Australia has undertaken 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 undertaken may come within a broad meaning of "protection obligations" but in s 36(2) the term refers to the direct obligations Australia has accepted as a Contracting State 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. 8 The applicant, an Iranian national then aged 30, entered the Australian migration zone without authority in September 2000. Pursuant to ss 13 and 14 of the Act, the applicant became an "unlawful non-citizen" upon entry and under ss 189 and 196 of the Act, was placed in "immigration detention" where he has been kept ever since. 9 Part of the background to the applicant's circumstances was his claim that in about 1989 an elder brother of the applicant had left Iran and been assessed by the United Nations High Commissioner for Refugees ("UNHCR") as a refugee under the Convention. He had been granted a right to reside in Sweden. Further, the applicant claimed that in 1985 another elder brother of the applicant had died of kidney failure, a condition the applicant said had been caused by torture inflicted on the deceased by Iranian authorities in the course of the brother's imprisonment between 1983 and 1985. The applicant claimed the deceased had been arrested as a supporter of a communist party, and had been interrogated and imprisoned by Iranian authorities. 10 The applicant claimed, in effect, that by reason of the identification by state authorities of two of his brothers as opponents of the Iranian regime it was likely that any conduct by the applicant perceived by those authorities to reflect a political opinion opposed to the ruling system in Iran would bring swift retribution. 11 In particular, the applicant claimed that although born a Muslim he no longer believed in Islam and had engaged in dialogue at his place of employment and other places critical of the Islamic regime. He refused to attend daily prayers or to conform to the dress codes set down by Islamic authorities. 12 In respect of the foregoing claims made by the applicant, the Tribunal said that it was "highly dubious that the applicant's claims in this regard are true". The Tribunal stated that: "The applicant has claimed that two of his brothers were involved in political activities, that one is a refugee in Sweden because of this and that the other died following his release from detention. I am highly dubious that the applicant's claims in this regard are true. In relation to this, I note that when he was interviewed upon arrival in Australia the applicant stated that the only political activity in which his family had been involved was reading the works of Dr Ali Shariati (an Iranian intellectual whose works were banned in the years preceding the Revolution). Given that the applicant raised other matters relevant to his claims during the entry interview, I consider it implausible that he would not have also raised his brother's political activities at this time. I note the death certificate provided by the applicant. However, there are problems with this certificate. In particular, it is unclear why a death certificate in the Persian language would contain an entry in English in relation to the cause of death. Furthermore, this document, if it is evidence of anything, is evidence that the applicant has deceased brother. It is not evidence of the circumstances under which his brother contracted the condition leading to his death." 13 In fact, when first interviewed after arrival the applicant, when asked to provide details of siblings and places of their residences, had explained that a brother had left Iran and been accepted by the UNHCR as a refugee and now resided in Sweden. It does not appear that he was asked by the interviewing officer to elaborate on the circumstances which led to his brother becoming a refugee. The applicant was asked to provide details of siblings and their current place of residence. Not unnaturally the deceased brother was not included in the information provided. The applicant was also asked to provide details of his family's association or involvement with any political group or organisation and the interviewer recorded a response by the applicant that the family had read books by Dr Shariati at a time when these publications had been banned. 14 The reasons of the Tribunal for dismissing the applicant's account of the political history of his brothers may be thought to be less than compelling. The applicant stated at the first interview that he had a brother who was a refugee from Iran. If he were not asked by the interviewer to provide any further details of his brother's activities, it was hardly open to the Tribunal to conclude that on the paucity of information before it, the claim that his brother was a refugee was "implausible". It may be noted that the applicant was not asked by the Tribunal to provide any detail about the activities in Iran of the brother now residing in Sweden. 15 With regard to the claims made in respect of the deceased brother, the failure of the applicant to discuss at the initial interview the political activities of his deceased brother may have given the Tribunal cause to determine what the applicant was asked at that interview but the absence of such a discussion did not, in itself, make the claim "implausible" if, by that, the Tribunal meant that the claim was inherently unlikely or beyond human experience of possibilities. 16 In respect of the death certificate produced to the Tribunal, the Tribunal, in passing, commented that the certificate raised a "problem" in that the cause of death written on the certificate was expressed in English. That was not a matter put to the applicant for comment. The cause of death, renal failure, was not inconsistent with the type of injuries that persons may suffer by reason of ill-treatment in gaol or from torture. There does not appear to be anything in the material provided by the applicant in respect of the death of his brother that was so beyond commonsense as to make implausible the applicant's claim that his brother had been arrested and harmed by the state for his political opinion. 17 Another aspect of the Tribunal's reasons deserving of comment is the manner in which the Tribunal dealt with the events described by the applicant as the immediate cause for his flight from Iran. In his initial interview in October 2000, and in more detail in a supplementary submission supplied by the applicant a few days later in support of his application for a protection visa, the applicant stated that several months before he left Iran in September 2000 he met a person at the applicant's workplace, a public swimming pool, who claimed to be Jewish and interested in discussing matters of religion. That person had offered to lend the applicant a Farsi translation of the Torah. The applicant said he was interested in reading the book but it should not be given to him at the pool. The applicant arranged to meet this person (described in the Tribunal's reasons as "Ilberoun") in a park to receive the book. When they met as arranged, and the applicant started to leave with the copy of the Torah, he noticed that four civilians were moving towards him across the park in a suspicious manner. He dropped the book in a rubbish bin and walked quickly out of the park. As he left the park he noticed two men inspecting the bin and two following him. He hailed a taxi outside the park which took him to a friend's house where he remained until about midnight when he left to go to the house of another friend. The applicant feared that security agents would have arrested Ilberoun and that that person would have identified the applicant to those officers. Later he arranged for his friend to take a message to the applicant's mother to obtain for him his passport and money in US dollars. The friend delivered the message and, in due course, collected the passport and funds from which the friend purchased for the applicant a ticket for a flight from Tehran to Kuala Lumpur. The applicant left Tehran on that flight about four days after the incident in the park. 18 By the time of the Tribunal hearing on 12 April 2001 the applicant had spoken to his brother in Tehran who had informed him that the family home had been raided by secret police four days after the applicant left Iran and documents belonging to the applicant had been seized. The brother had been imprisoned and interrogated. The brother stated that security officers alleged the applicant distributed and promoted "anti-religious (atheistic Jewish) material". The applicant had given Ilberoun notes and writings on issues of free speech, and material critical of the Islam ideology, including excerpts from The Satanic Verses. 19 Later, the applicant spoke to his sister in Iran who informed him that his brother had been returned to gaol where he had learnt that Ilberoun was an officer in the security forces. This information was forwarded by the applicant to the Tribunal before the review proceeding was commenced. 20 In the written statement provided by the Tribunal pursuant s 430 of the Act, under the heading "Findings and Reasons", the Tribunal said as follows in respect of the foregoing claims. "The applicant has provided essentially two different versions of his involvement with Ilberoun. In the first version, which he told on arrival in Australia, in his application for a protection visa and during his interview with the delegate, he claimed that Ilberoun was a Jewish taxi driver that he met at his place of employment, that he discussed religion with Ilberoun, that they arranged to meet in a park so that Ilberoun could give him a copy of the Torah and that he avoided being arrested by four security forces officials in the park after he had thrown the Torah into a rubbish bin. In the second version of this story, the applicant claims that he has now found out that Ilberoun is not a Jew, but a senior official with the Basiji. He claims that over a two month period before the incident in the park, he gave Ilberoun anti-Islamic material, including parts of The Satanic Verses. At the hearing the applicant claimed that Ilberoun encouraged him to talk about his views and to give him this anti-Islamic material with the promise that he (Ilberoun) could introduce the applicant to people in Turkey who could help him get to another country. In my view, there are significant credibility problems with both versions of the applicant's evidence. In relation to the first version of the story, the applicant has not been able to explain why he would want to obtain a Torah from Ilberoun. There is nothing in the evidence before me to suggest that Torahs cannot be openly bought from shops or borrowed from libraries in Iran. Indeed, I note independent evidence before me indicating that a cleric at a seminary in Qom – the seat of Islamic scholarship in Iran – has put the Torah, along with the Bible, the Koran and other religious writings onto a database for scholarship purposes. (See Robin Wright, The Last Great Revolution: Turmoil and Transformation in Iran, Alfred A Knopf, New York 2000, pp 236‑238). There is nothing in the evidence before me to indicate that mere possession of a copy of the Torah could lead to a Muslim being of any adverse interest to the Iranian authorities. I note that that the applicant did not disagree with this at the hearing, although his claims made on arrival and in his application for a protection visa were premised on the argument that this was so. There are other problems with the applicant's first version of events. For example, as noted above, the applicant claims that Ilberoun was a taxi driver. However, the arrangement was for them to meet in a park. The applicant could not satisfactorily explain why either he or Ilberoun would choose to meet in a public place such as a park rather than in a private place, for example, in Ilberoun's taxi. The only explanations that the applicant was able to offer were that the park is quiet and that Ilberoun preferred it this way. In addition, the applicant's evidence concerning how he was able to escape defies credulity. The applicant has not provided any satisfactory explanation as to how he was able to avoid capture from four security forces personnel who were, according to the applicant's evidence, sent to the park specifically to capture him. The second version of the applicant's encounter with Ilberoun shares features with the first version, particularly in relation to the meeting in the park to hand over the Torah and the escape from the four security forces personnel. The same credibility problem exists in relation to the escape story. However, other problems emerge with this version of the evidence. For example, the applicant was not able to offer any explanation for why a Basiji officer would go to so much trouble to entrap him. In relation to this, I note that the applicant on one hand said that he did not speak out about his views because of what happened to his brothers, and on the other hand states that he used to express his view to people in the bazaar, in the workplace and in the street. In any event, given that the applicant was able to maintain his employment, was only arrested on one occasion when he assaulted a child, and was able to travel in and out of Iran both before and after this particular incident, whatever the applicant might have discussed in relation to religion was not enough to have given him any serious problems. There is no independent evidence before me suggesting that the type of elaborate entrapment scheme to which the applicant claims to have fallen victim is a common occurrence in Iran, or indeed that it occurs at all. Furthermore, the applicant has not been able to provide any explanation for why he would not have been arrested as soon as he gave Ilberoun anti-Islamic materials, or why Ilberoun would not simply have arrested him in the park when he handed him the Torah. Overall, I find both versions of the applicant's involvement with Ilberoun to be unconvincing and inherently implausible. In the circumstances, I do not accept that the events referred to by the applicant actually took place. I do not accept that the applicant met a person he knew as Ilberoun to whom he talked about his religious view and gave anti-Islamic materials and parts of The Satanic Verses. I do not accept that this person gave the applicant a copy of the Torah. I do not accept that the applicant escaped arrest. I do not accept that the Iranian authorities raided the applicant's house and found banned materials there. I do not accept that the applicant's brother has been arrested because he helped the applicant to escape from Iran. I do not accept that the applicant was perceived to be an apostate. In my view, the applicant has fabricated his claims concerning Ilberoun in an attempt to create for himself the profile of a refugee. I am of the view that at the time of his departure from Iran the applicant was of no adverse interest whatsoever to the Iranian authorities. I am of the view that the applicant is of no interest to them currently." 21 The Tribunal suggested, incorrectly, that the applicant had provided "two different versions of his involvement with Ilberoun". The applicant provided one consistent account of his dealings with Ilberoun, save for providing in a later account more detail of the content of the discussion between them, and stating that he had provided Ilberoun with written material critical of Islam. 22 The so-called "second version" was not a second account inconsistent with the first, but a disclosure of further information obtained by the applicant after the interview suggesting that Ilberoun had been an undercover security officer. 23 Further, the statement by the Tribunal that there is "no independent evidence" that the "elaborate entrapment scheme" described by the applicant is a "common occurrence" or "occurs at all" suggests that the Tribunal took a very narrow view of the type of conduct security forces in Iran may engage in. The Tribunal would have committed an error of law if it acted in the belief that the applicant's claim in that regard could not be considered unless there was "independent evidence" on the issue. 24 By speculating that, if Ilberoun were a member of the security forces he would have arrested the applicant, the Tribunal appears to have overlooked the possibility that the security forces may have intended to preserve Ilberoun's undercover persona. 25 Furthermore, the statement by the Tribunal that, in effect, it was inconceivable that the applicant and Ilberoun would arrange to meet in a park to hand over the Torah seems to provide very tenuous grounds for any conclusion as to the plausibility of the claim. 26 The foregoing material suggests that the conclusion of the Tribunal, that "both versions" of the applicant's involvement with Ilberoun were "unconvincing and inherently implausible", is a fragile finding providing little foundation for the statement that followed, namely, that the Tribunal "did not accept" that numerous events had occurred as claimed by the applicant. 27 In administrative decisions such as these, grave dangers lie in relying upon purportedly conclusive and absolute statements based on slight material. It is appropriate to repeat the words of caution expressed by Brooke LJ, with whom Walker LJ concurred, in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 at 469-470: "For the reasons much more fully explained in the Australian cases, when considering whether there is [a real risk] of persecution for a convention reason if an asylum-seeker is returned, it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision-maker believes, on what may sometimes be somewhat fragile evidence, that they probably did not occur." 28 The foregoing having been said, the issue in this application for review as adumbrated by counsel for the applicant is whether the Tribunal asked the wrong question and relied on irrelevant material, thereby falling into jurisdictional error, when it purported to reject the applicant's claim that he had a well-founded fear of persecution arising out of the risk that he would be perceived to be an apostate by religious authorities in Iran if he were returned to that country. 29 The applicant stated that he had rejected Islam over a number of years. He had not embraced another religion but had considered doing so. The Tribunal accepted the applicant was "not a believer in Islam" and, indirectly, appeared to accept that this had drawn some attention to the applicant in that the Tribunal accepted the occurrence of some conspicuous events as a result, namely, that the applicant did not attend prayers as required, had not observed the dress code imposed by religious authorities and was unable to gain admission to university because of his failure to pass the test based on religious observance. 30 In its "Findings and Reasons" the Tribunal dealt with this issue as follows: "The applicant claims that he has rejected Islam. He also claims that he has left Iran on a number of occasions in the past nine years because he wanted to change his religion. The applicant stated he did not change his religion on any of those occasions because he wanted to go back to see his mother. In my view, this does not explain the applicant's failure to change his religion if this is what he really wanted to do. There is no credible evidence before me suggesting that the applicant made any attempt to investigate other religions in Iran. The applicant has not claimed and the evidence before me does not suggest that he has made any attempt to obtain religious materials since his arrival in Australia. I note that the applicant grew a beard on arrival in Australia so that he would look more Islamic to other detainees. Overall, I am of the view that the applicant has had ample opportunity to investigate other religions and to convert to one of his choice over the past nine years. I do not find the applicant's claim that he wants to change his religion to be persuasive. I accept that the applicant is not a believer in Islam. However, there is no independent evidence before me to suggest that being a non-believer is sufficient to give rise to a well-founded fear of persecution in Iran. Indeed, there is independent evidence indicating that three quarters of the Iranian population does not perform daily prayers, an obligatory part of Islamic observance. (See Agence France Presse "Clerics OK women to lead prayers after "shocking" report", 1 August 2000, http://www.badjens.com/archives/7_27_00/newsclips.htm) Given that the applicant has not so far changed his religion, I am of the view that the chance that he would do so in the reasonably foreseeable future in any way that would attract the adverse interest of the Iranian authorities is remote. I am therefore not satisfied that the applicant has a well-founded fear of persecution for this reason." 31 In the foregoing reasons, the Tribunal appears to suggest that a state of apostasy requires not only abandonment of Islam but also adoption of belief in another religion. Further, the Tribunal conflates rejection of Islam with the regular observance of the rituals of Islam. 32 Apostasy involves abandonment of belief in Islam. Formal conversion to another religion is not a requirement. An apostate may be an atheist who has rejected Islam. (See: Hussain Islamic Law and Society The Federation Press 1999 at p. 138.) The Tribunal, of course, was aware that in Iran apostasy is a capital offence and, for an apostate, the risk of extreme punishment always exists. 33 The question for the Tribunal to address was whether there was a risk that the several official and unofficial enforcers of Shariah law in Iran may recognise the applicant as a person who had broken that law by abandoning Islam and seek to inflict punishment, harm or detriment upon him in a manner or degree that could be described as persecution. 34 In that regard, the material consideration would be whether there were indicia of apostasy able to be brought to the attention of an Iranian religious judge to damn the applicant as an apostate in the eyes of that cleric. 35 Although the Tribunal may have misunderstood the nature of the risk facing the applicant by reason of his abandonment of belief in Islam, in the end the Tribunal addressed the correct issue, namely, whether there were any overt signs of apostasy that may bring the applicant under the notice of religious authorities and, therefore, to present him with a risk of harm. 36 The Tribunal found that, at the time the applicant left Iran he had not been perceived to be an apostate and, in effect, found that if he continued his life as he had done before his departure, there would be no real prospect that it would be alleged that he was an apostate. The Tribunal recognised that an act of conversion to another religion would involve acts that risked such an event becoming known to enforcers of the Shariah law but was satisfied that having regard to the time that had passed since the applicant had become a non‑believer, the manner in which the applicant had conducted himself in the past and considering the previous opportunities the applicant had had to adopt another religion without acting upon them, the applicant was unlikely to take such a step in Iran in the future. 37 These findings of fact were available to the Tribunal and, once made, supported the ultimate conclusion by the Tribunal that there was no real risk of persecution facing the applicant by reason of his abandonment of Islam. 38 It was not submitted on behalf of the applicant that, notwithstanding the disbelief of the Tribunal that the following events had occurred as claimed, namely, the incident relating to Ilberoun and the security police; the arrest of the applicant's brother; and a search of the applicant's home at the time he left Iran, the Tribunal had erred in failing to consider the possibility that such events may have occurred as claimed, when determining whether the applicant may face the risk of harm by reason of his apostasy if he were returned to Iran. (See: Abebe v Commonwealth of Australia (1999) 197 CLR 510 per Gleeson CJ and McHugh J at [83]). 39 It follows that the application must be dismissed. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.