SAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 627

FEDERAL COURT OF AUSTRALIA

SAAX v Minister for Immigration & Multicultural Affairs

[2002] FCA 627

No issue of principle SAAX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS S 212 OF 2001 O'LOUGHLIN J CANBERRA (HEARD IN ADELAIDE) 17 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 212 OF 2001

BETWEEN: SAAX

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: O'LOUGHLIN J

DATE OF ORDER: 17 MAY 2002

WHERE MADE: CANBERRA (HEARD IN 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 212 OF 2001

BETWEEN: SAAX

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: O'LOUGHLIN J

DATE: 17 MAY 2002

PLACE: CANBERRA (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT 1 The applicant arrived in Australia in January 2001. Six months later, in July 2001, he lodged an application for a Protection Visa under the Migration Act 1958 (Cth) ("the Act") with the Department of Immigration and Multicultural Affairs ("the Department"). That application was unsuccessful as was his subsequent application to the Refugee Review Tribunal ("the Tribunal"). He how seeks the intervention of this Court. 2 At his arrival interview on 13 January 2001, which took place before he had lodged an application for a Protection Visa, the applicant said that he came from Isfahan in Iran and that he was a Shi'a Moslem. When he lodged his application for a Protection Visa however, he stated that he was a Christian. 3 The applicant said that he had four siblings who live with his parents in Iran. He is unmarried and was a professional wrestler and later, a self-employed truck driver whilst in Iran. 4 According to the findings of the Tribunal, the applicant left Iran because of a lack of freedom with respect to matters of clothing, personal appearance and social life. The applicant acknowledged that nothing had happened to him personally, but nevertheless, so he said, those restrictions existed and if he disobeyed them he would be punished. He also said that he left his country because of the intense economic crisis; he felt that he had an uncertain future in Iran. He said that he had started planning to leave Iran some two years earlier and he had chosen Australia because he had heard "a lot of good things about it". 5 The applicant said in his evidence that he had been raised in a very religious Islamic family; his father was a fanatic and had forced the applicant to learn religious practices, prayers and rituals. However, as the applicant grew up, he became disheartened with Islam – but he did not know of any other religion. He said that his father frequently insulted and teased him about his lack of religion and accused him of ruining his reputation. He said that he was expelled from school because "of his beliefs" and that being expelled, he could not continue his education. He said that he became friendly with a girl in Isfahan who was an Armenian Christian. It was through her that the applicant said that he chose Christianity. The Tribunal stated in its reasons that when the applicant sought his father's permission to marry the girl: "His father reacted as though he had been electrocuted. He insulted the applicant, the girl, Christianity and the Bible. The applicant defended the girl and Christianity and said he had chosen them, and insulted Islam. His father threatened to tell the authorities. The applicant knew his father would carry out his threat. He left the house and went that day for his passport. He called his sister who told him his father had informed the authorities about him and that he should not come home. The following day he left Iran." The Tribunal further recorded that on the day after his arrival in the Woomera Immigration Reception and Processing Centre, the applicant contacted Father Monaghan, the local Catholic priest. He had attended Father Monaghan's religious classes for some seven months prior to his Tribunal hearing. The applicant claimed that in Iran, apostasy is punishable by death. In his statement, which accompanied his application for a Protection Visa, the applicant included a certificate to the effect that he had been accepted into the Order of Catechumens of the Catholic Church and he also included an extract from Shari'ah Law on the crime of apostasy. 6 The Tribunal asked the applicant why he had not disclosed his claims about Christianity at his arrival interview. The Tribunal addressed this issue in its reasons in the following manner: "The applicant said he did not feel quite safe to explain his situation. He could not concentrate on what was going on. He was concerned about the presence of other Iranians in the Centre, and was not sure if his revelations would be kept confidential. Also he was not aware what the definition of a refugee was; if he had known the importance of the interview he would have told the whole story." 7 The Tribunal questioned the applicant about his knowledge of Christianity at the time when he was still in Iran. The Tribunal recorded that the applicant: "… mentioned a number of basic tenets and principles of Christianity, described the Catholic Mass, and demonstrated familiarity with some of the principal celebrations in the Christian calendar." 8 A Sister Anne Higgins gave evidence before the Tribunal. She is a Catholic nun who gave religious lessons to the applicant. The Tribunal did not, in any way, question the evidence of Sister Anne and went so far as to record Sister Anne's opinion that the applicant was genuine in his desire to convert to Christianity. However, the Tribunal did not share Sister Anne's opinion about the applicant. It acknowledged that she was a valuable witness and that her answers displayed a "serious analysis of the issues raised by conversion of Islamic detainees". The Tribunal went so far as to say that "from the church's point of view there is no uncertainty about the applicant's faith". However, the Tribunal would not accept that the applicant is now a Christian, observing that "as a fact finder, it looks at the applicant's claimed conversion from a greater distance …". This was a somewhat bold decision by the Tribunal in view of the fact that it had not rejected Sister Anne as a witness of credit and substance. Nevertheless, it remained within the province of the Tribunal to come to that conclusion. In addition, the Tribunal recorded that, subsequent to the hearing but prior to the delivery of its reasons, it received advice that the applicant had been baptised into the Catholic religion.