SAAY v Minister for Immigration & Multicultural Affairs [2002] FCA 759

FEDERAL COURT OF AUSTRALIA

SAAY v Minister for Immigration & Multicultural Affairs [2002] FCA 759

Migration Act 1958 (Cth) s 424A Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SAAY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS S 213 of 2001 O'LOUGHLIN J 17 JUNE 2002 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 213 OF 2002

BETWEEN: SAAY

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: O'LOUGHLIN J

DATE OF ORDER: 17 JUNE 2002

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The Application be dismissed. 2. The Applicant pay the Respondent's costs which costs are 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 213 OF 2002

BETWEEN: SAAY

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: O'LOUGHLIN J

DATE: 17 JUNE 2002

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The applicant, a citizen of Iran, arrived in Australian on 1 January 2001. Some six months or so later, on 24 July 2001, he lodge an application for a protection visa with the Department of Immigration and Multicultural Affairs ("the Department") pursuant to the provisions of the Migration Act 1958 (Cth) ("the Act"). That application was unsuccessful. On 31 August 2001 a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refused his application. The applicant applied for a review of that decision by the Refugee Review Tribunal ("the Tribunal"). Again he was unsuccessful. The Tribunal affirmed the decision of the delegate not to grant a protection visa. The applicant now seeks the intervention of this Court. 2 In his amended application for an order of review, the applicant, who had the benefit of legal advice in the preparation of that document, and the benefit of counsel in these proceedings, initially advanced four main grounds. In the first place, he argued that he had been denied natural justice before the Tribunal when his request to refer to the tapes of his initial interview by a Departmental officer was denied. The issue of a denial of natural justice has been abandoned as a ground of appeal but the alleged failure of the Tribunal to accede to the applicant's request to refer to the tapes still remains a live issue. That interview had been conducted at the Woomera Immigration Reception and Processing Centre ("the Centre") on 12 January 2001. 3 His second ground of review was that there was a failure on the part of the Tribunal "to take into account relevant considerations that ought properly to have been considered …". That ground was also abandoned at the commencement of the submissions for the applicant. 4 The third issue, comprising three separate grounds of review, can be considered under the heading of "Religion". It was alleged that the Tribunal member had failed to give sufficient weight to the evidence about the applicant's religious persuasion and about the persecution that the applicant might suffer in consequence of his religious beliefs if he were to be returned to Iran. It was also alleged that the Tribunal failed to give any, or any sufficient, weight to the country information about the treatment of apostates in Iran and that the Tribunal had erred in concluding that there was no evidence to justify a finding that the applicant had converted to Christianity. 5 The final ground of review, as events transpired, became the applicant's predominant ground. It was in these terms: "The Tribunal Member erred in that there was a failure to properly comply with the procedures and regulations required to be observed in connection with the making of the decision. Namely, there was a failure to properly comply with Section 424A and Section 424B of the Migration Act 1958." 6 At his initial interview ("the first interview"), which was conducted in Farsi on 12 January 2001, the applicant said that he was born in 1967 and that he had lived in Isfahan in Iran. He had completed his education in 1989 with a Diploma qualification and had worked until 2000 at a steel company. He is married with two children and is in his mid-thirties; his wife and children continue to live in Iran. His father is dead, but his mother continues to live in Iran with his two sisters and his brother. He said that he used his Iranian passport to leave the country. 7 In the data questionnaire that was compiled at the time of his first interview, he was recorded as stating that his religion was "Islam". In answer to the question "why did you leave your country …?", he gave this answer: "There is no security and no law. The government officials all against each other. There is no financial security. No medical services are available unless you pay a lot of money. When I had a chest operation and when my wife gave birth they charged us two month's earning. This is the summary of the Iran situation. I had personal problems with the religious fanaticism of the government. What my mind does not accept I cannot believe. There are many superstitions in this type of religious problems. Human beings have no worth in Iran." In further answers, he was recorded as saying that he had planned to leave Iran about two years earlier and in answer to the question about his attitude to returning to Iran he was recorded as saying: "Iran is against human rights. In other parts of the world they have hospitals for animals. In Iran they do not care about human beings." He did not profess to belong to any political group, nor had any member of his family been involved in any meaningful activities against any government. A lengthy statement in his name was attached to his application for a protection visa. It had been prepared by Messrs Macpherson and Kelley of Dandenong Victoria who described themselves as solicitors and migration agents. Under the heading in the statement – "Why I left my Country", the applicant claimed that a few years before leaving Iran he had discussed with a Christian friend and the friend's mother his interest in Christianity. Speaking of the mother he wrote: "At the end she said myself and her son are witness that you are Christian but we cannot give you any certificate." The applicant's claim that he had converted to Christianity found some support in the evidence of Father Monaghan, the parish priest at Woomera. He said that the applicant seemed "very determined in his approach" to the matter of Christianity. The applicant then referred, by name, to a person who had been killed by the Hezbollah because, as he claimed in his statement, "he had changed his religion". Later he talked of an event when his five year old son asked him why people were beating themselves with chains. He and his son were, at that time, observing an Islamic traditional event. He said that he answered his son by saying that they were doing it "out of ignorance" whereupon four or five people accosted him and beat him. 8 He claimed that in 1987, he was denied entry into a university because the authorities had discovered that he did not say prayers and that he did not attend the Mosque. He also said that in the year preceding his leaving Iran he was "disowned" by his mother and siblings because of his beliefs; they did not know that he was a Christian, but they knew that he had no belief in Islam. 9 The Department of Foreign Affairs and Trade ("DFAT") 1996 country profile on Iran discussed the issue of "apostasy", drawing a distinction between those who worshipped privately and maintained a low profile as compared with those who publicly proclaimed some religion other than Islam. Among other things, the report contained the following information: "Death sentences for apostasy have traditionally been issued to Baha'is and occasionally Christian converts who have been active in proselytising. However, the death sentence has rarely been carried out for apostasy alone …Those who worship privately and maintain a low profile will be very unlikely to suffer any adverse attention from the authorities for their conversion, unless they are involved in other activities which would attract security interest." 10 A report from the UNHCR on the subject of "Iranian converts to Christianity" was also among the papers before the Tribunal. It said, among other things: "Drawing on the above information, we are in a position to suggest that some, but by no means all, bona fide converts to Christianity among Iranian Muslims, depending on the circumstances of their conversion, the depth of their conviction and the extent of their practice run the risk of being persecuted in Iran, should they openly declare their change of faith, especially if they engage in propagating Christianity or attempt to proselytise other Muslims. On the other hand, many others, especially those living in big cities like Tehran, who have chosen to be discrete have not been and are not being actively pursued and persecuted." The information contained in the DFAT assessment was put by the Tribunal to the applicant and, through his adviser, he replied that he would not be able to keep quiet as a Christian when his faith was being attacked. He believed that truth and sincerity were one of the foundations of the Bible and he was bound to pass on the message of God. To this he added that, in any event, in Iran he was already known as, or suspected of being, a Christian. 11 The applicant experienced difficulties with the Herasat from time to time at his place of employment. On two separate occasions he was "punished" by having fifteen days salary withheld as a result of allegations that he was a "dissident". On 23 November 2000, a third occasion, he was involved with fellow workers in a discussion about a program for Ramadan. He said that he expressed his views about the defects of Islam, especially with regard to Ramadan. Later, a close friend told him that another workmate, who represented the Islamic society, had reported him to the Herasat for making negative comments about Islam. After being told that, and fearing repercussions from the Herasat, the applicant asked for leave of absence from his work. He was granted leave, he left his work but he did not return. 12 The Tribunal noted that, as the applicant had been able to obtain a passport, it suggested that he was not of interest to the authorities. The applicant explained, however, that it was not the authorities who were causing him difficulties at that stage. It would, so he said, take time for the Herasat to refer his case to the disciplinary authorities and, as a passport could issue in a couple of days, and his being a replacement passport, he was able to obtain it before the authorities were aware of his dissidence. 13 The Tribunal challenged the applicant about him having stated at the first interview that his religion was Islam. According to the Tribunal, the applicant replied that he: "… did not tell the interviewer that he believed in Islam. The reference to Islam in the record was a mistake. He told them that he did not believe in Islam because of the fanaticism".