FEDERAL COURT OF AUSTRALIA SBBJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 761 No question of principle Migration Act 1956 (Cth) ss 424A, 474 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 cited Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 cited Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 cited Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 followed R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 cited Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 145 ALR 532 cited Servos v Repatriation Commission (1995) 56 FCR 377 cited Ozberg v Minister for Immigration and Multicultural Affairs [1998] FCA 12 cited Demir v Minister for Immigration and Multicultural Affairs [1998] FCA 1308 cited Orr v Holmes (1948) 76 CLR 632 cited Commissioner for Government Tram and Omnibus Services v Vickery (1952) 85 CLR 635 cited McCann v Parsons (1954) 93 CLR 418 cited Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 cited Florance v Andrew (1985) 58 ALR 377 cited R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 cited SBBJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS S 16 OF 2002 O'LOUGHLIN J 28 NOVEMBER 2002 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 16 OF 2002 BETWEEN: SBBJ APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: O'LOUGHLIN J DATE OF ORDER: 28 NOVEMBER 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 16 OF 2002 BETWEEN: SBBJ APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: O'LOUGHLIN J DATE: 28 NOVEMBER 2002 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 The applicant, a citizen of Iran, arrived in Australia 6 June 2001. He lodged an application for a protection visa with the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") but that application and his subsequent application to the Refugee Review Tribunal ("the Tribunal") for a review of the Minister's decision were both unsuccessful. In an application for an order of review that was filed on 14 January 2002, he now seeks the intervention of this Court. 2 The applicant was interviewed by a Departmental officer shortly after his arrival in Australia. It is apparent from the answers that he gave on that occasion that the applicant based his claim for refugee status on his claimed fear of persecution for religious reasons should he be returned to Iran. In answer to the question "Why did you leave your country of nationality?", the applicant said it was because he had changed his religion. In answer to further questions he said that he was an "Orthodox" Christian but he was unable to say "what sort of Orthodox". 3 The applicant was asked: "Did you have any reasons for not wishing to return to your country of nationality – (Residence)?" This was his recorded answer: "If you change your religion in Iran it is a very big crime – any Muslim can kill you – and your blood -?- we have no freedom there." 4 When the applicant applied for a protection visa, he submitted with his application a statutory declaration. That document was typewritten in the English language. Although the author was not identified, its contents suggest that the applicant had the benefit of professional assistance in its preparation. 5 The statutory declaration commenced with the following claims: "1. I am an Iranian and a converted Christian, single, born in Tehran, Iran on 23 September 1972. 2. I cannot return to Iran as I fear for my life from the Iranian regime for my religious beliefs and followings. I seek asylum from the Australian Government in order that I may find safety and sanctuary here in Australia. I cannot return for these reasons." 6 After reciting his family and employment history, the applicant then said in the statutory declaration that his work as a photographer had brought him into contact with members of the Armenian Christian community. After a period of three years or so of continuing association, he said that he obtained "a better appreciation of the rudimentary basis of Christianity". His interest in Christianity deepened to the point where, so he said, he was baptised in the Armenian Church. He described, in quite some detail, the ceremonies that were performed during the course of his baptism, referring to the use of the lighted candle, the holy water, the oil and the sign of the cross. 7 The applicant said that he had hung a wooden cross on the wall of his shop, together with a poster of the Virgin Mary and the baby Jesus. He said that "persons from Amaken", whom he described as a "group from the government of hard liners who inspect that the (sic) businesses comply with Islamic code", told him to remove the cross and poster. He did what he was told, but rehung them when the men left. On another occasion, he had a physical altercation with the Amaken during which, so he said, he shouted out that he had converted to Christianity. That resulted in the Amaken lodging a formal complaint against him. He was told to report to their office for further investigation, but he did not do so. He said in his statement that he "became extremely scared for my life" and that he went into hiding in his brother's home. He was summoned, he claimed, to appear before a "Revolutionary Court" but, instead, he arranged his departure from Iran. He said: "I had been informed that to attend the Court would have led to me being condemned as an infidel and corrupt person and the ultimate sentence was execution." 8 Mr Barrett QC, who appeared as pro bono counsel for the applicant, read from the reasons of the Tribunal the relevant section that dealt with the claim of conversion to Armenian Christianity and with apostasy. It was as follows: "54. The applicant claimed that he has converted from Islam to the Armenian Orthodox church. His claim was that he associated with Armenian Christians, professed an intention to become a Christian, and organised, through a friend, to be secretly baptised into the Armenian Orthodox church. It was also the applicant's claim, that Armenian Christians in Iran proselytise their faith to Muslims and with the approval of the Archbishop in Tehran, conduct secret baptismal ceremonies of such converted apostates. 55. I am unable to accept either the veracity of the applicant's claim of conversion and baptism into Armenian church or that Armenian Christians proselytise Muslims in Iran. The applicant's claim of conversion and baptism into the Armenian church in Iran is clearly contradictory and inconsistent with the independent information. The Armenian church, or Armenian Apostolic church, to give it its correct name, is one of only a few Christian churches allowed to freely practice its faith and conduct its cultural activities in Iran. This is so because it is based on an identifiable ethnic group and because it does not proselytise Muslims and does not generally accept the conversion of other religions into its church. The applicant claimed that there was evidence that such a practice was on the internet. No such information was found by the Tribunal when it searched for such sources. 56. Apart from the clear inconsistency between the applicant's claim and the independent information that indicates to the contrary, the applicant's evidence was inherently implausible. It was his evidence that he was given Christian literature in Persian by his friends in the church about Christianity (on one account) or given a bible in Persian (on another). The independent information indicates that the affairs of the Armenian church are conducted in Armenian and that its educational and cultural material are also produced in Armenian. It would be also the case that before a convert would be baptised into a church, he or she would be required to attend some form of Christian education or catechism, and be a regular attendee of church. It was the applicant's evidence that he never attended church in Iran nor did he undertake any form of Christian education. It was his evidence that he either was given some Christian literature or given a bible in Persian." 9 Mr Barrett submitted that the statements and findings that the Tribunal set out in its reasons (which are quoted above) are at variance with, and in places contradictory to, the country information that was before the Tribunal. He referred, in particular, to the following statements from a report from the United States Department of State on Iran entitled "International Religious Freedom Report"; it was a report that was released in October 2001: "Religious minorities suffer discrimination in the legal system, receiving lower awards than Muslims in injury and death lawsuits, and incurring heavier punishments. Muslim men are free to marry non-Muslim women but marriages between Muslim women and non-Muslim men are not recognized. The Government is highly suspicious of any proselytizing of Muslims by non-Muslims and can be harsh in its response, in particular against Baha'is and evangelical Christians. The Government does not ensure the right of citizens to change or renounce their religious faith. Apostasy, specifically conversion from Islam, can be punishable by death. … The law prohibits the publication of pictures of uncovered women in the print media, including pictures of foreign women. There are penalties for failure to observe Islamic dress codes at work. … Because conversion of a Muslim to a non-Muslim religion may be considered apostasy under traditional Shari'a practices enforced in the country, non-Muslims may not proselytize Muslims without putting their own lives at risk. Evangelical church leaders are subject to pressure from authorities to sign pledges that they would not evangelize Muslims or allow Muslims to attend church services." 10 In addition to the statements that are set out above, Mr Barrett also referred to, and relied upon, a statement entitled "Iran Assessment" that was issued by the United Nations High Commissioner for Refugees. The relevant passage was as follows: "The Constitution provides for the representation of Assyrian and Chaldean Christians in reserved seats in the Majlis. Armenians have lived in Iran for centuries, mainly in Tehran. The government appears to be tolerant of groups such as Armenian Christians because they conduct their services in Armenian and thus do not proselytise. Christian associations without an ethnic focus sometimes face difficulties in obtaining legal recognition of their existence. Christians are allowed to maintain their own schools and participate in a broad range of cultural activities within their own community. Apostasy Proselytising Christian churches, especially Evangelicals, are likely to be regarded more suspiciously by the Iranian authorities. Apostasy, or conversion from Islam to another religion is not acceptable in Islamic law. An innate apostate (one whose parents were Muslims and who embraced Islam but later left Islam), if a man, is to be executed. If a woman, she is to be imprisoned for life, but will be released if she repents. A national apostate (a person converting from another faith to Islam, and then reconverting back to the other faith) is encouraged to repent and, upon refusal to repent, is to be executed. The most prominent cases of apostasy appear to occur from Islam to Christianity. Proselytizing apostates (converts who have begun preaching Christianity) are likely to face execution. 17 clerics are known to have been in detention in 1997." 11 The Tribunal in its reasons referred to information relating to Iran under the heading "Independent Information – Armenian Christians in Iran". The relevant sections in its reasons were as follows: "46. Recognised religious minorities may provide religious instruction in non-Persian languages but often come under pressure from the authorities when conducting such instruction in Persian. Recognised religious minorities are allowed by the Government to establish community centres and certain cultural, social, sports, or charitable associations that they finance themselves. The Christian community is estimated at approximately 117,000, according to government figures. Of these the majority are ethnic Armenians and Assyro-Chaldeans (US State Department, International Religious Freedom Report, October 2001). 47. According to the Iranian government there are between 117,000 and 200,000 Christians in Iran, made up of Assyro-Christians and Armenians, with the greater number being Armenian. They are concentrated in the urban areas, and are legally permitted to practice their religion and instruct their children, but must not proselytise Muslims. The Constitution provides for the representation of Armenian and Chaldean Christians in reserved seats of the Majlis. Armenians have lived in Iran for centuries, mainly in Tehran. The government is tolerant of groups such as Armenian Christians because they conduct their services in Armenian and thus do not proselytise. Christians are allowed to maintain their own schools and participate in a broad range of cultural activities within their own community (UK Home Office, Iran Assessment, September 1999). … 51. The UK Home Office (UK Home Office, Iran assessment, September 1999, par 6.35) notes that proselytising Christian churches, especially Evangelicals, are likely to be regarded more suspiciously by the Iranian authorities than the Armenian church. Apostasy, or conversion from Islam to another religion, is not acceptable in Islamic law. 12 There then appeared in that report a discussion about innate apostates and national apostates. The language that was used in the report was the same as that which was used in the statement entitled "Iran Assessment" that was issued by the United Nations High Commissioner for Refugees and to which Mr Barrett had referred during the course of his submissions. 13 The Tribunal made use of the contents of the three paragraphs from its reasons in this manner: "42. Independent information at paragraphs 46, 47 and 51 was put to the applicant; that the Armenian church was free to practice its religion, but it neither proselytised nor accepts Muslim converts. He was asked to explain, in light of that evidence how he was able to become not only baptised but also in secret and without ever attending church. He claimed that it was because of his connections with his Christian friends. He then claimed that he knew that the church would not accept Muslims or proselytise, and that was why his baptism was secret. He claimed that his friends organised it for him, that a priest at a wedding got permission from the Archbishop." 14 So long as the Tribunal had due and proper regard to all relevant material, it was for the Tribunal to decide in what manner it would use the country information and which sections (to the exclusion of others) it preferred to follow. Except in rare cases, such as those where bias or bad faith have been asserted (and no such allegations have been made in this case) it is not the function of this Court to interfere with that aspect of the Tribunal's functions. Of course, if a decision-maker did not consider the real question which it was his or her duty to consider, that could amount to a constructive failure by the Tribunal to exercise its jurisdiction: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 577; Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at [21]. That could also allow this Court to intervene. However, this is not the case here. 15 The Tribunal rejected the applicant's claim for refugee status because it did not believe that he had converted to Christianity; it did not believe that he had been in trouble with the authorities; it did not believe that he been summoned before the Revolutionary Court. The Tribunal did not express its conclusions with any form of hesitation. It was quite positive. Among the more important reasons for its decision were the following: · the applicant's claim of conversion and baptism into the Armenian Apostolic church in Iran was contradictory and inconsistent with the independent information; · the Armenian Apostolic church is allowed to freely practise its faith in Iran because it is based on an identifiable ethnic group and because it does not proselytise Muslims; · the Armenian Apostolic Church in Iran does not generally accept converts from other religions into the Church; · the independent information that the Tribunal obtained indicated that the affairs of the Church in Iran are conducted in – and its educational and cultural materials are produced in – Armenian whereas the applicant said that he was given Christian literature in Persian; · the Tribunal could not accept that anyone would be baptised into the Church without being a prior regular attendee at Church and without having taken religious lessons – the applicant had done neither. 16 The Tribunal concluded by saying: "57. As I am unable to accept that the applicant's claims of conversion and baptism have any veracity, I am also unable to accept that he came to the attention of the authorities because of his conversion to Christianity. It must follow that I am unable to accept the other claims of the applicant that he was repeatedly harassed or that he came in conflict with the authorities because of his conversion, or that he was summonsed to appear before a court (on one account) or before the Amaken (on another account). I am unable to accept that the applicant was of any adverse interest to the authorities before or after he left Iran. Accordingly, I am not satisfied that the applicant had a well founded fear of persecution by reason of his religion in Iran." 17 The written submissions that were filed on behalf of the applicant were, in the main, a challenge to the fact finding exercise which the Tribunal had undertaken. Save for exceptional circumstances (and this case is not one), it is not the province of this Court to review or question the findings of fact as made by the Tribunal. Furthermore, the issue of credibility was for the Tribunal alone to determine. As McHugh J said in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]: "In addition, the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor's claims that members of PLOTE tried to recruit him were 'utterly implausible'. However, this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is a function of the primary decision-maker par excellence. If the primary decision-maker stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give reasons for its decision, not the subset of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word 'implausible'. The disbelief arose from the Tribunal's view that it was inherently unlikely that events had occurred as alleged." 18 The applicant also claimed that, at the hearing before the Tribunal, he was given inadequate opportunity to address the Tribunal's concerns about the country information. As to this, the respondent answered, correctly in my opinion, that the Tribunal was under no obligation to put the country information to the applicant. The Tribunal's obligations were those that are set out in s 424A of the Migration Act 1958 (Cth) ("the Act") and they did not extend to country information. The applicant submitted that, in focusing on the country information, the Tribunal failed to evaluate the veracity of the claimed experiences of the applicant. This is not correct; a fair reading of the Tribunal's decision shows that, for the reasons that it set out – and which have been summarised above – it did evaluate the applicant's veracity and having done so it rejected his claims. A transcript of the proceedings before the Tribunal was not tendered on this hearing, but Mr Barrett referred to selected passages from it. Whilst such matters are often seen through the eyes of the beholder, I am compelled to observe that I found nothing in the passages that were read to the Court which would give cause for concern. I cannot perceive of circumstances that would permit this Court to intervene on such a submission. It is true that the Tribunal did not address in any detail many of the comments that were contained in the passages upon which Mr Barrett relied. But it was not obliged to. There is no requirement in the Act for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding it made: Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469. 19 After counsels' submissions had been completed and judgment had been reserved, the Court was asked to delay entry of judgment so that the applicant might have the opportunity to apply for leave to place fresh evidence before the Court. That evidence comprised two sets of documents. The first set consisted of three communications from the "Basseej Resistance Force" requiring the applicant to report, for unspecified reasons, on the three different dates that were nominated in each of the documents. The second set was a copy of the applicant's driver's licence and a copy of his membership of the Bahman Cultural House. English translations of all these documents were made available through the services of a certified interpreter in the Farsi and English languages. 20 The purpose in seeking to place this information before the Court was to contradict certain of the findings of the Tribunal. For example, the Tribunal said that it was unable "to accept that [the applicant] came to the attention of the authorities because of his conversion to Christianity". Accepting (without deciding) that the fresh evidence is authentic, it establishes that the applicant had come to the attention of the Iranian authorities in March 2001 which was about the time when he said that he left Iran. However, as I have earlier noted, the three communications that the applicant seeks to place before the Court do not specify the reason why he was required to attend before the Basseej Resistance Force. There is nothing in them that would point to his alleged conversion to the Armenian Church being the reason for him being summoned. Furthermore, the reason why the Tribunal rejected the applicant's case, rested in its rejection of his story about his religious conversion; his claim that he was in trouble with the authorities was only rejected because of – and as a result of – the earlier rejection of his claims of conversion. Perhaps the applicant was in trouble with the authorities in March 2001 but it does not necessarily follow that it was because of his claimed conversion. 21 There is a line of authority in this Court which strongly suggests that it is beyond my power to receive new evidence and to use it to remit the matter to the Tribunal: Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 145 ALR 532; Servos v Repatriation Commission (1995) 56 FCR 377; Ozberg v Minister for Immigration and Multicultural Affairs [1998] FCA 12; Demir v Minister for Immigration and Multicultural Affairs [1998] FCA 1308. However, I believe that this application must fail on its merits. Before fresh evidence will be received by the Court, it is necessary for the applicant to establish that it is reasonably clear that if the evidence had been before the Tribunal, an opposite result would have been achieved. Alternatively, if it is not reasonably clear that such a result would have been produced, it must have been so highly likely as to make it unreasonable to suppose to the contrary: Orr v Holmes (1948) 76 CLR 632; Commissioner for Government Tram and Omnibus Services v Vickery (1952) 85 CLR 635; McCann v Parsons (1954) 93 CLR 418; Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435; Florance v Andrew (1985) 58 ALR 377. The quality of the applicant's fresh evidence does not meet that standard and his application to have it considered by the Court is dismissed. 22 The Tribunal's decision is a "privative clause decision" within the meaning of s 474 of the Act. Accordingly, the scope of any review by this Court is limited to the subject matters that were identified by Dixon J (as he then was) in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616. However, in view of the decision at which I have arrived, it is not necessary for me to consider the application of the Hickman principles. 23 In my opinion the reasoning of the Tribunal cannot be faulted nor can I find fault with the way in which it exercised the powers that are vested in it. The appeal must be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin. Associate: Dated: 28 November 2002 Counsel for the Applicant: Mr GF Barrett QC (pro bono counsel) Solicitor for the Applicant: Refugee Advocacy Service of South Australia Inc Counsel for the Respondent: Mr MJ Roder Solicitor for the Respondent: Sparke Helmore Date of Hearing: 26 April 2002 and 6 November 2002 Date of Judgment: 28 November 2002