SBAW v Minister For Immigration & Multicultural & Indigenous Affairs [2002] FCA 515

FEDERAL COURT OF AUSTRALIA

SBAW v Minister For Immigration & Multicultural & Indigenous Affairs [2002] FCA 515

MIGRATION – appeal from a decision of the Refugee Review Tribunal – whether the Tribunal erred in dismissing the applicant's claims that he held a well founded fear of persecution based on his rejection of Islam and adoption of Christianity Migration Act 1958 (Cth) Judiciary Act 1903 (Cth) s 39B "W148/00A" v Minister for Immigration & Multicultural Affairs [2001] FCA 679 SBAW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS S 1 OF 2002 O'LOUGHLIN J 29 APRIL 2002 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 1 OF 2002

BETWEEN: SBAW

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: O'LOUGHLIN J

DATE OF ORDER: 29 APRIL 2002

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The Application be dismissed. 2. The Applicant pay the Respondent's costs, such costs to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 1 OF 2002

BETWEEN: SBAW

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: O'LOUGHLIN J

DATE: 29 APRIL 2002

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The applicant, a citizen of Iran, arrived in Australia on 22 April 2001. On 12 May 2001 he was interviewed as an "unauthorised arrival" at the Woomera Immigration Reception and Processing Centre. During the course of that interview, which was conducted with the assistance of an interpreter, the applicant was asked a series of questions about his reason for leaving Iran. In view of the submissions that have been made on his behalf during the course of these proceedings, it is important, in my opinion, to set out those questions and his answers: "Q. Why did you leave your country of nationality (country of residence)? A. I love Iran very much. Because of the ideas and thoughts I had that was seriously against Islam – that were anti-Islam. I had a good job so my major problem is religious and as I said my family was against my departure. Q. But why did you leave? A. I thought about it a lot, I come to the conclusions that if I wanted to have a religion that I choose it with all awareness. I decided to choose my religion myself. Q. Was your life in danger? A. Until what I have told you, the point I am getting at is that I wanted to become a Christian. Q. Were you ever threatened or harmed in any way because of your religious belief? A. Not that far. Only at place of employment. I was sort of told, there were hints for me to get involved to take part in their religious practice and ceremonies but I refused. Q. What would happen if you continually refused? A. The very first result of it could have affected my employment the minimum they can do is prevent my promotions the maximum thing they can do is to be sacked. Q. What was the problem with wanting to become a Christian? A. In Iran, it is not permitted for anyone to become Christian. He would be recognised as an apostate. Q. When did you begin to plan leaving your country of nationality? A. Three months before my departure. Q. Why did you choose Australia as your destination? A. Considering the amount of money I had, the only way was this direction. Q. Do you have any reasons for not wishing to return to your country of nationality (residence)? A. Only those things that I said already. It was a hard decision to make." It will be necessary to return to these questions and answers when considering the submissions that have been made on the applicant's behalf. 2 On 26 August 2001, the applicant sought a Protection Visa pursuant to the provisions of the Migration Act 1958 (Cth) ("the Act"). In support of his application for that Visa, he lodged a statutory declaration. It was typewritten and in English. Consistent with his interview, the contents of the statutory declaration were directed, in the main, to his rejection of Islam and his interest in Christianity. However, there was much more detail in his statutory declaration. He said, for example: "I cannot return to Iran due to the real fact that I have never followed Islam at all, I have viewed Islam as a major problem and have sought to convert to Christianity, however as a member of a very religious Muslim family denounced and isolated me and more so, to be seen actively participating and following Christianity will be viewed by the authorities as an infidel act and would ultimately lead to my death. Given this I seek asylum from the Australian Government to enable me to find and fulfill my religious belief in its entirety. … Ever since I have known myself every person should select and follow the religion one believes in. In Iran there is no such freedom, if anybody has that opinion he will be crushed. I loved Iran and proud to be Iranian and if I was able to convert to Christianity in Iran I would not have left. … The changing of religion is not an easy matter which I decided in one moment. It was not a sudden decision but one that became stronger and stronger over a period of time." 3 His application for a Protection Visa was unsuccessful, as was his further application for an order of review by the Refugee Review Tribunal ("the Tribunal"). The Tribunal's decision is now the subject of challenge before this Court under s 39B of the Judiciary Act 1903 (Cth). 4 The Tribunal, in its reasons for its decision, summarised the information that was before it concerning the applicant's attitude towards religion. It said: "He stated that he loves Iran very much but left as he had thoughts and ideas that were anti-Islam and "seriously against Islam". He had a good job but his problem was religious and his family was against his departure. He said that he wanted to have a religion that he chose himself with all awareness. He was asked if his life was in danger and said 'the point I am getting at is that I wanted to become a Christian.' He was asked whether he was threatened or harmed in any way because of his beliefs and said 'Not that far only at place of employment I was sort of told, there were hints for me to get involved and take part in their religious ceremonies but I refused'. He was asked what would happen if he continually refused and said 'the very first result of it could have effected my employment, the minimum they could do is prevent promotions the maximum they could do is be sacked'. He said that in Iran it is not permitted to become a Christian and he would be recognised as being apostate. He planned to leave three months prior to departure. He said that there were no other reasons for departure. … He states that he cannot return as he has 'never followed Islam at all, I have viewed Islam as a major problem and have sought to convert to Christianity'. He is from a very religious family who 'denounced and isolated me', and if he converts and follows Christianity he will be considered as an infidel. In Iran he claims that there is no freedom to choose a religion, and gives some commentary on the history of Islam. He states that if was able to convert in Iran he would have, but couldn't. He is aware that to become a Christian is 'not an easy thing' but he has determination and has decided to come to Australia to do this. He has made up his mind to do this. His 'favouring Christianity' has impacted on his family members and his elder brother has told him 'not to do this', his brother has threatened that he will tell the authorities if he did not change his views and 'tow the line with Islam'." The Tribunal's summary was, in my opinion, consistent with the information that was contained in the applicant's original interview and his subsequent statutory declaration. It emphasised his dissatisfaction with Islam and his wish to convert to Christianity. There was, however, the additional factor of a threat from his brother – a matter that he had not earlier mentioned. At the hearing before the Tribunal, the applicant claimed that if he returned to Iran, he would have a problem, as shortly before he departed, his brother had "threatened me to death and said I should repent or die'. According to the applicant, his brother was in a powerful position in the Hezbollah. When asked by the Tribunal why he had not previously mentioned that important subject, the Tribunal said in its reasons that the applicant replied that: "[H]e had not been asked or given an opportunity to do so …" That was obviously incorrect if the record of interview of 12 May 2001 is to be accepted as accurate. The Tribunal member challenged the applicant about the record of interview and the answers that he had given on that occasion. The applicant replied to the effect that the interview was very brief and that there were no questions such that he could give that information. 5 Despite the absence of verifying documentation, the Tribunal was prepared to accept that the applicant was an Iranian citizen. It also accepted that he was a non-practising Muslim and that he had not attended "prayer times" at his work. In addition, it also accepted that the applicant had undertaken some studies in Christianity whilst in detention but it would not otherwise accept his claims for refugee status. The Tribunal was of the view that the applicant was "not a credible witness". 6 The Tribunal then went on to say: "… I do not accept that his claimed interest in or conversion to Christianity is genuine. I consider that his claims are fabricated for the purpose of advancing his claims for a protection visa. I accept that the applicant has undertaken some study courses and has attended some Christian religious activity whilst in Australia at Woomera Detention centre. I consider however that these activities were undertaken by him solely for the purpose of strengthening his claims for a protection visa and evidence his claimed interest and later claimed conversion to Christianity." The Tribunal supported its conclusion by referring to several aspects of the applicant's evidence which it regarded as unsatisfactory. These included the applicant's claim that he had left Iran using a false Iraqi passport. The Tribunal was of the view that the applicant "had no reason to leave Iran other than by legal means". It regarded the applicant's evidence about the threat from his brother as a fabrication and, referring to the brother's alleged threat, the Tribunal noted that the applicant's claims "have changed significantly over time". The absence in the record of interview and the statutory declaration of any reference to the brother's threat was regarded by the Tribunal as most significant for, as the Tribunal stated in its reasons, the applicant, in evidence before the Tribunal, said that it was the "extent" of the brother's threats "that forced him to leave his country". The Tribunal added: "This was not initially mentioned despite his being specifically asked if he had ever been threatened or harmed. I have considered his stated reasons as to why he did not mention the threats from his brother. He has said he was not asked. This is not true. He has also said that the interviewer did not give him a chance as he was unpleasant and acerbic. I do not consider that is true, and even if true the applicant could still have given his reasons when asked. Having considered all the evidence I find that the change in story is a deliberate attempt to enhance his claims." 7 The Tribunal rejected the applicant's claimed interest in Christianity. It noted that he had never had any contact with any Christians in Iran and that in a period of four and half months between his arrival in Australia and the occasion of an interview by Departmental Officers he had made "no attempt to investigate or learn anything more about Christianity" – this being despite "a presence at the centre of Christian workers from the local town". The Tribunal went on to record that it was only after the interview that the applicant commenced a Bible study course. The Tribunal formed an unfavourable view of the applicant and his testimony. It went so far as to describe his Bible studies as "opportunistic actions designed to support and advance his claims". The Tribunal concluded that the applicant did not have a well-founded fear of persecution for a Convention reason. 8 In his amended application for an Order of Review, the applicant claimed that the Tribunal had made a jurisdictional error. That error was said to be that: "1.1 The decision maker failed to take into consideration [the] statement made by the applicant in relation to the appellant's beliefs of Islam. 1.2 The decision maker failed to decide the case as put to it by the applicant". That claim was pursued in the written and oral submissions that were made on the applicant's behalf during the course of the hearing. In submitting that the Tribunal had misconceived the applicant's application, it was argued that the essence of the applicant's application was not his new found discovery of Christianity or his desire to convert to Christianity but his opinion and views on Islam. It was submitted that the applicant had made it clear that he had a negative opinion about Islam and that the Tribunal, in assessing and rejecting his claim about his interest in Christianity, it had failed to give appropriate attention to his rejection of Islam. Thus, so it was argued, the central claim by the applicant was not his discovery of Christianity but his rejection of Islam. He did not claim that, if he were to be returned to Iran, he did not claim that he would be persecuted because he may be a Christian – nor did he claim that the Iranian authorities persecuted Christians. His claim, so it was argued, was that he would be persecuted both by the Authorities and his family because of his denunciation of Islam. 9 In my opinion there is no substance in the applicant's submissions. In the first place, the various passages that I have extracted from his record of interview, his statutory declaration and the Tribunal's reasons make it quite clear that the applicant's case, as presented by him, was based jointly on his rejection of Islam and his interest in Christianity. The Tribunal, in my opinion, correctly recorded the claim that the applicant had made. It is an impermissible gloss to suggest that the applicant only presented his claim on the basis of his rejection of Islam. In the second place, the Tribunal noted that the applicant had acknowledged in his evidence that there were many people in Iran who, like him, were non-practising Muslims and there was no material before the Tribunal that would suggest that they were at risk of persecution. What is more, the applicant freely acknowledged that he had, for quite some time before he left for Australia, deliberately abstained from daily prayers at his place of employment. This evidence negates the likelihood of his being persecuted by the Authorities if he were to be returned to Iran. 10 In the case of "W148/00A" v Minister for Immigration and Multicultural Affairs [2001] FCA 679 Tamberlin and RD Nicholson JJ said at [64]. "A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against the finding." Their Honours went on to explain that the determination as to credibility that was engaged in by the Tribunal essentially involved an evaluation and conclusion as to where one group of considerations that were unfavourable to the appellant outweighed those that could be regarded as favourable to him. That exercise was, as their Honours noted, "a question of fact and degree" [66]. In the circumstances of the case that is now before me it could not be said that this was a case where the Tribunal simply asserted that the applicant's account was not to be believed. The Tribunal disclosed its reasoning processes and the evidence upon which it relied in clear terms. 11 The Tribunal did not fall into error in attaching the weight that it did to the significance of the applicant's failure to disclose an important aspect of his claim – namely, his brother's threats – during the course of his initial interview and in his statutory declaration. It was for the Tribunal to decide what, if any, significance was to be attached to the non-disclosure of this piece of information just as it was for the Tribunal to decide whether it would accept the applicant's explanation for his delay in disclosing the information. 12 That leaves, as the final matter for consideration, his allegation that he would suffer persecution at the hands of his family because of his renunciation of Islam. There are two answers to that claim. In the first place there was no history of antagonism from his family in respect of his activities prior to leaving his country. In the second place the Tribunal, as it was entitled to do, rejected his evidence about the threats from his brother. 13 In my opinion, the Tribunal was justified in arriving at its conclusion. I have not found any fault in its reasoning process. The conclusion at which I have arrived means that it is not necessary for me to address the arguments that were advanced about the effect of the provisions of the Migration Legislation Amendment (Judicial Review) Act 2001. 14 The application is dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin.