Badraie v Minister for Immigration & Multicultural Affairs

The Tribunal accepts that the Applicant wife is not claiming conversion to one of the registered faiths in Iran but to a small officially unrecognised minority. However, it does believe there is some correspondence between them. It is not the case the [sic] all apostates are harshly treated. The Tribunal is satisfied that the circumstances in this case will not provoke harsh reaction. The Applicant wife has not openly offended against Islam. She has, she has claimed, quietly undergone a ritual of conversion to her husband's religion. Members of Al-Haqq consider themselves to be a branch of Muslims and the family travelled to Australia with Islamic material, a compass and a cassette of Koranic readings. The Tribunal is satisfied that her husband has not been persecuted for his membership of the Al-Haqq group. It is satisfied that she too will not be persecuted for her quiet adoption of her husband's religious identity. It is not satisfied that the claims made in the letter about relatives' anger, official searches and interrogations and maltreatment of their close relatives are true." 6 The Tribunal's treatment of the husband's claim that he would be considered guilty of the offence of 'proselytising' because of his wife's conversion to his religion is less clear and is the basis of one of the grounds of review raised by the applicants. It is discussed later in these reasons at [8]-[11].

1 the Tribunal, within the meaning of s 476(1)(a) of the Act, failed to observe the procedures required to be observed in connection with the making of the decision;

2 the Tribunal's decision involved an error of law within s 476(1)(e) of the Act, being the failure correctly to apply the 'real chance' test in determining whether the second applicant would be persecuted in Iran for reason of her apostasy; and

3 there was no evidence or other material that would justify the Tribunal's finding that Muslims who convert to unofficial religions in Iran are not persecuted; s 476(1)(g) and s 476(4)(b) of the Act. 8 The procedure that it is alleged the Tribunal failed to observe was that, contrary to s 430(1)(c) of the Act, it did not set out its finding on a material fact. The material fact is said to be the Tribunal's finding on the claim that the first applicant would suffer persecution because he would be presumed guilty of the offence of proselytising in connection with his wife's conversion from Islam to another religion. In this regard the applicants relied on the decision of the Full Federal Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 ("Singh").

9 There can be no doubt that Tribunal was aware of this claim, being that the husband would suffer persecution because of his wife's conversion. It specifically stated that it had considered the claim and commented that:

"As the Applicants rightly submitted this claim had been raised prior to the primary decision but was not considered by the Minister's delegate." 10 Mr Jones, appearing for the applicants, argued that, despite this statement, the Tribunal had not stated its finding in relation to this claim. Quite properly, he drew my attention to a further comment of the Tribunal where, in the context of a discussion of the cumulative claims made by the husband, the Tribunal said: "The Tribunal accepts that being a member of Al-Haqq could lead to acts of discrimination against him. It does not find that his Kurdish ethnicity or his political profile add to that a dimension which puts him at risk of persecution. It has considered what has happened to him in the past in Iran and is satisfied that he has not been persecuted. It does not accept that there is now an additional risk because of his wife's conversion." [emphasis added] 11 Mr Jones valiantly pressed an interpretation of the last sentence to the effect that it was about 'guilt by association' rather than about 'proselytising'. In my opinion, however, the comment shows both that the Tribunal had made a finding on the point at issue and also the nature of that finding. I do not see how any other meaning could be attributed to it. It would no doubt have been better if the Tribunal had expressly set out its finding. Nevertheless, the statement is sufficient to comply with the requirements of Singh. The obligation to set out the material on which the finding is based is, in my view, met by the Tribunal's discussion of the report of the Department of Foreign Affairs and Trade entitled Country Profile for use in refugee determination Islamic Republic of Iran, dated March 1996, information from the Research Directorate, Immigration and Refugee Board of Canada and its acceptance of the fact that the husband and wife had been married for over two years before leaving Iran without incident. Whether another mind would have attributed the same weight to this evidence is not the point. The Tribunal is not obliged to explain why it attached such weight or came to its conclusion; Singh at [62]-[64]; Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 74 ALJR 405 at [64]-[65] per McHugh J. 12 The second ground of review concerns the correct use of the 'real chance' test. The test stems from McHugh J's conclusion as to the meaning of a 'well-founded fear' in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, with which Mason CJ agreed at 289. McHugh J stated at 429, "an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a far-fetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his or her fear should be characterized as "well-founded" for the purpose of the Convention and Protocol." 13 In applying this test, however, one must be mindful of the caution expressed by the majority of the High Court (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. While the Court observed that in most cases the application of the real chance test would lead to the same result as an application of the phrase, 'well-founded', it also commented at 572 that, "it is always dangerous to treat a particular word or phrase as synonymous with a statutory term, no matter how helpful the use of that word or phrase may be in understanding the statutory term … As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In this and other cases, the Tribunal and the Federal Court have used the term 'real chance' not as epexegetic of 'well-founded', but as a replacement or substitution for it. Those tribunals will be on safer ground, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind that a fear of persecution may be well-founded even though the evidence does not show that persecution is more likely than not to eventuate". 14 Mr Jones submitted that because the evidence before the Tribunal showed that there was punishment for apostasy in Iran, a correct application of the real chance test could not have led to the conclusion that the wife did not have a well-founded fear of persecution because of her conversion. However when one considers the Tribunal's discussion of the wife's conversion and the likelihood of her being punished for apostasy summarised above at [4] and [5], it is clear that this argument could only relate to the weight to be attached to that evidence rather than to the identification of an error of law. 15 The final ground of review involves a consideration of s 476(1)(g) as qualified by s 476(4)(b). As indicated above, the Tribunal concluded that the wife did not have a well-founded fear of persecution because of her conversion to the Al-Haqq religion. Mr Jones submitted that, within the meaning of s 476(4)(b), this conclusion was based the existence of a particular fact that does not exist. The particular fact said not to exist is the fact that in Iran, conversion from Islam to an unofficial religion is not punished. 16 The application of s 476(1)(g) and its relationship with s 476(4)(b) was considered by a Full Court in Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 ("Indatissa"). The Court referred to the need to establish three elements being that there was no evidence to justify the making of the decision, the decision was based on a particular fact and the particular fact did not exist. The Court continued at [27]-[28]: "It is not sufficient simply to establish the two matters referred to in s 476(4)(b). That paragraph qualifies 476(1)(g). It does not constitute a definition of what will amount to there being no evidence or other material to justify the making of the relevant decision. That is to say, it is not sufficient to show that a decision was based on the existence of a particular fact and that that fact did not exist. If that was sufficient, any decision of a Tribunal based on the existence of a particular fact could be challenged in the Federal Court by adducing evidence designed to persuade the Federal Court to reach a different conclusion concerning the existence of that fact. Such an approach is demonstrably unsound. It is beyond question that the power of the Court under s 476(1) generally and s 476(1)(g) in particular does not extend to a re-examination of any of the factual matters ventilated before the Tribunal.

In other words, it is only if it can be shown that there was no evidence or other material to justify a decision that it is necessary to consider s 476(4). If there is before the Tribunal any evidence or material capable of supporting the particular fact on the existence of which the decision is based, the ground cannot be made out." 17 Despite Mr Jones' submissions, it is clear from the Tribunal's reasons for decision that it did not find that, in Iran, conversion from Islam to an unofficial religion is not punished. Rather it found that, "[i]t is not the case the [sic] all apostates are harshly treated". It came to this conclusion partly on the basis of its consideration of the independent material. The relevant part of the Tribunal's reasons is extracted in [5] above. In addition the Tribunal relied on the past experiences of the applicants. It attached some weight to the fact that the wife had "quietly undergone a ritual of conversion", that she had not "openly offended against Islam" and that, before coming to Australia, the husband and wife had lived together for two years without incident. 18 The applicants challenged the Tribunal's reliance on evidence concerning the consequences of conversion from Islam to Catholicism. Mr Jones submitted that Catholicism is an official religion in Iran and therefore this material was not relevant in considering conversion to an unofficial religion. I do not agree with this submission. Obviously it would have been better to have evidence concerning the consequences of conversion to the Al-Haqq group. As the Tribunal was not able to obtain such information it was entirely reasonable for it to consider analogous situations. If the applicants' challenge has any force it is in relation to the weight to be attached to such evidence. That decision, however, is a matter for the Tribunal and cannot be disturbed by this Court. 19 In any event, it is my opinion that there was ample evidence, much of which is summarised in these reasons, to justify the making of the decision to reject the application. On the basis of the analysis in Indatissa, the question of the application of s 476(4)(b) does not arise and the third ground of review is not made out. Mr Jones submitted that if this is the meaning of Indatissa then it is inconsistent with the earlier Full Court decisions of Minister for Immigration & Multicultural Affairs v Rajamanikkam [2000] FCA 1023 and Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 and should not be followed. I do not agree that these decisions are inconsistent. Because in each case the relevant Court was concerned with the specific fact situation before it, the expression of the requirements of s 476(1)(g) and s 476(4)(b) differs somewhat. That does not lead to the conclusion that the courts are applying different tests and, in my opinion, this is not the case. In any event, even if there were differences, Indatissa, being the latest decision, would presumably prevail. 20 For the above reasons, the application must be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate: Dated: 25 May 2001 Solicitor for the Applicant: Mr Michael Jones