Dobari v Minister for Immigration and Multicultural Affairs [2001] FCA 524 | Case summary

Federal Court of Australia|2001-05-04|Before: Carr J

introduction 1 This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 19 December 2000, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant. The applicant is a citizen of Iran. On 10 July 2000 he arrived in Australia, eventually via Indonesia, having torn up his Iranian passport before arrival. On 4 September 2000 the applicant applied for a protection visa. On 16 November 2000 a delegate of the respondent refused to grant him a protection visa. On 17 November 2000 the applicant sought review of the delegate's decision by the Refugee Review Tribunal.

the applicant's claims and the Tribunal's decision 2 The applicant's claims, as made to the Tribunal, were in summary as follows: · that he was a 31 year old single man who was born in Ahvaz; · he completed approximately 18 years of education and graduated with a Bachelor of Science in Engineering from Azad University; · he completed military service between June 1994 and June 1996. His difficulties began during such military service in 1995 when he was accused of having anti-religious and anti-supreme leader views because he refused to attend public prayers and talks given by the Mullahs. He claimed that he was detained for 20 days on one occasion and was beaten and interrogated, but after his release he continued to serve in the military until June 1996; · from June 1996 to June 1998 the applicant worked as an engineer for the Pars Motor Company which was controlled by the Iranian government. He was employed as a quality control engineer and, after a period, he became a manager. He was called to the offices of the pro-government militia and questioned about why he had shaved his beard and why he wore gold jewellery. He told them that religion was a personal thing and it was not part of his job. They in turn told him that because he was a manager he should set an example to his staff. They instructed him to grow his beard and to pray daily; · one of his staff was a Christian with whom he formed a close relationship. Because the applicant had not attended prayers or meetings he was called again to see the militia. They questioned him about his Christianity and said that there were rumours that his relationship with his Christian work colleague was based on religion. They warned the applicant about the consequences of converting to Christianity and threatened that he would be killed if he did so. During a conversation with his superior manager he was told that security officials were gathering information about him and that he should leave the company and find a job with a company which was not controlled by the government. He was dismissed by the company in 1998 and, because he was scared to stay in Teheran, he went to Ahvaz and took a job in a cosmetic shop; · he had been interviewed for employment with the Kerman Motor Company and was accepted at the first stage, which was based on his technical background. He was told that he had to await clearance from the authorities before he could commence work. The Kerman Motor Company contacted the Pars Motor Company which said that the applicant was a trouble-maker and that the security personnel were trying to find enough information so they could prosecute him. He did not obtain that employment, but continued working in the cosmetic shop; · in June 1999, during a visit to Teheran, he attended a demonstration at a university. He shouted slogans with the rest of the crowd and fought back when the security guards starting attacking the people. The students formed a human chain to prevent the militia from entering, but they could not hold them back. The militia penetrated through the chain and attacked the students. They attempted to break up the demonstrations with batons, clubs and chains. The applicant escaped, but later found that the demonstration had been filmed. He also encountered at the demonstration a security official who had known him when he had worked at the Pars Motor Company. They had had a conversation. The applicant was scared because he had been identified by that security official; · he went into hiding in Teheran for a few months before returning to Ahvaz; · in February 2000 he received a letter requiring him to report to the security office in Ahvaz within three days. When he reported as requested, he was blindfolded, driven to another place, held in a cell, questioned, beaten and tortured. He was beaten with sticks and chains and hung from the ceiling by his wrists. He was accused of attending anti-government demonstrations and insulting the supreme leader and Islam. He was also accused of being one of the main organisers of the demonstrations. He was detained for 30 days and had to pay a bond of fifteen million tomans to secure temporary release. He was required to attend a revolutionary court at a later date to answer to allegations against him and to make admissions. He was forced to remember a statement to be given at the court appearance. He then decided to escape from Iran; · the applicant adopted Christian beliefs ten years ago and had been attending Armenian church services. He had no political problems in Iran, just religious problems. 3 In his initial interview, soon after arrival in Australia, the applicant said that he left Teheran by air for Kuala Lumpar. 4 Rather than attempt to summarise the Tribunal's findings and reasons, I set them out below in full. I have numbered the paragraphs to facilitate the references to the Tribunal's reasons which I make later in these reasons. "FINDINGS AND REASONS

Grounds of the application 5 The applicant was represented, on a pro bono publico basis, by Mr P D Quinlan of counsel who was instructed on the same basis by Messrs Mallesons Stephen Jaques. There were five grounds in the amended application. The first two grounds were inter-related. They concerned the matter of the applicant's claims to hold Christian beliefs. First, the applicant contended (Ground 1) that the Tribunal erred by not setting out its findings on a material fact. The applicant relied upon s 430(1)(c) when read with s 476(1)(a) of the Migration Act 1958 (Cth) ("the Act"). The material fact was said to be whether the applicant held counter-Islamic beliefs whilst in Iran, as distinct from whether he held Christian beliefs. Secondly, (Ground 2) the Tribunal was said to have erred in law by incorrectly applying the law to the facts as found. The applicant complained that the Tribunal had confined its consideration of the Convention requirements to the applicant's Christian beliefs and had thus failed to consider the counter-Islamic beliefs held by the applicant whilst in Iran. 6 The applicant contended that the Tribunal had misapprehended the field of inquiry. The inquiry was whether the applicant had a well-founded fear of persecution on the grounds of religion. That question was not answered, so it was put, simply by asking whether the applicant was a Christian.

my reasoning in relation to grounds 1 and 2 7 In my view, the question whether the applicant held counter-Islamic beliefs was not an objectively separate material fact in respect of which the Tribunal was required to set out its finding. Nor was it one which, in the circumstances of this particular matter, the Tribunal was obliged to consider. 8 In written submissions filed on behalf of the applicant it appeared that he was contending that this matter of counter-Islamic beliefs was a separate one which required findings to be set out. However, in oral submissions in reply at the hearing Mr Quinlan explained that the applicant was not contending that the counter-Islamic belief issue was a separate one, but rather that the real issue was a broader issue of the applicant's claims to a well-founded fear of persecution for reasons of religion. He said that Christianity was a sub-set of "the broader issue" of what was the applicant's religious identity. 9 Mr Quinlan referred to the applicant's written statement which accompanied his application for a protection visa, which had been repeated in written submissions made to the Tribunal and which the Tribunal had set out at p 6 of its reasons. The statement was a short one and I set it out below: "My difficulties started during my military service in 1995. I was accused of having anti religious and anti supreme leader views because I refused to attend public prayers and talks given by the Mullahs. I did not agree with their religious views and I was detained for 20 days during which time I was interrogated and beaten." 10 I think it is useful to note here that the applicant does not raise any issue in relation to the Tribunal's refusal to believe the applicant in respect of that part of his claims which arose out of his alleged participation in the July 1999 demonstrations in Teheran. Part of his evidence in that regard was that as a result of attending that demonstration he had been accused of insulting the supreme leader and Islam. 11 Also I think that it is important to bear in mind that the incident relied upon by the applicant in this case as requiring the Tribunal to set out the findings of fact referred to above, occurred as far back as 1995 i.e. about five years before his departure from Iran. In fairness to the applicant, I acknowledge that Mr Quinlan referred to other evidence which he submitted did not simply suggest that the applicant was a Christian or Christian convert or a baptised Christian, but was "… far more nuanced than that". He submitted that the proper issue for identification was the nature and extent of the applicant's contra-Islamic views which then should have been considered. 12 In my view, a fair reading of the evidence given by the applicant to the Tribunal and the submissions made to it on his behalf shows that his claim to a well-founded fear of being persecuted for reasons of religion was confined to a fear of persecution on return to Iran if he were to practise his adopted Christian faith. 13 As can be seen from the Tribunal's reasons as set out above, and in particular paragraphs numbered 3, 4, 5 and 6, the Tribunal disbelieved all of the applicant's claims about his religious conversion. In their final form, the whole of the applicant's religious claims were based upon his having been a Christian for ten years before he left Iran. There were no separate claims that he held counter-Islamic beliefs. It was not part of the applicant's case before the Tribunal that the holding of his Christian views included the holding of counter-Islamic beliefs. As the respondent submitted, the context and manifestation of the applicant's alleged counter-Islamic beliefs, or how they might differ from mere religious non-conformism was unexplained, and there was no suggestion made to the Tribunal that any such counter-Islamic views brought the applicant to the attention of the authorities independently of the other religious considerations which the Tribunal dealt with. 14 At paragraph numbered 12 above the Tribunal specifically addressed the applicant's statement at his initial interview, that his "beliefs are different", taking this to mean that the applicant did not believe in regularly attending the mosque, going unshaven and not wearing gold jewellery. The Tribunal appears to have accepted that this was the applicant's case, but, after referring to independent country information, said that it was not satisfied that the applicant had a well-founded fear of persecution in Iran for these differences from Islamic practices. 15 Furthermore, the Tribunal was well aware of the possible persecution faced in Iran by Muslims who convert away from Islam. It set out some independent information obtained from the Department of Foreign Affairs and Trade on the subject of apostasy (see pp 17 and 18 of its reasons). There was no complaint that the Tribunal had failed to make any finding of fact about what the applicant claimed to have happened to him in 1995. 16 In my view, the Tribunal complied with its obligations under s 430(1)(c) when it set out its findings on the applicant's religious claims. It did not, in my opinion, for the reasons which I have set out above, err in law as the applicant alleged in Ground 2 by confining its consideration of the Convention requirements to the applicant's Christian beliefs and failing to consider the counter-Islamic beliefs held by him whilst in Iran. 17 Further, Ground 2, although expressed as an allegation of error in application of the law, is really an "improper exercise of power" ground. The applicant is really saying that the Tribunal failed to take into account, as a relevant consideration in respect of the applicant's religion-based persecution claims, the applicant's allegedly anti-Islamic views. If that is so, then such an approach is precluded by s 476(3)(e) of the Act.

my reasoning in relation to ground 3 18 By Ground 3 the applicant raised a "no evidence" point. This was said to arise because the Tribunal based its decision to disbelieve the applicant on a particular finding of fact which did not exist - see s 476(4)(b) of the Act. The particular finding of fact was said to be that the phrase "my beliefs are different", used by the applicant in his initial interview, meant only that he did not believe in regularly attending the mosque, going unshaven and not wearing gold jewellery, whereas the evidence and other material before the Tribunal was said to make it clear that this phrase had a far broader meaning, encompassing the counter-Islamic beliefs held by the applicant. 19 My understanding of the law which is to be applied to this Ground is as follows. A finding of fact upon which the Tribunal decides that an applicant is not a credible witness may constitute "a particular fact" within the meaning of that expression in s 476(4)(b) - see Minister for Immigration and Multicultural Affairs v Rajamanikkam [2000] FCA 1023 at [21] (a decision of a Full Court of this Court). To establish the "no evidence" ground provided by s 476(1)(g), three requirements must be satisfied. The first is found in s 476(1)(g) itself i.e. that there was no evidence or other material to justify the making of the decision. Only if that can be shown is it necessary to consider s 476(4). If it becomes necessary to consider s 476(4)(b), the next requirement is that the decision under review be based on the existence of a particular fact. The third requirement is that that fact did not exist. Each of these three requirements has to be satisfied before the ground referred to in s 476(1)(g) is made out - see the more recent decision of a Full Court of this Court in Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 at [26] to [28]. To the extent, if any, that there is a difference in approach between that taken by the Full Court in Rajamanikkam and the cases there cited and the approach taken by the Full Court in Indatissa, I respectfully follow the approach taken by the latter Full Court. 20 Applying those principles, I think that in relation to Ground 3 the first requirement was not satisfied in this case. The Tribunal had evidence or other material to justify its decision not to believe the applicant's claims. For example, the fact that the applicant told the respondent's Department at his initial interview that he was a Shia Moslem (see paragraph numbered 2 of its reasons set out above). Then there was his failure in written submissions to mention that he was a Christian and the fact that in Part C of his application for a protection visa he stated that he was a "Shiite Moslem". Furthermore, in that written submission the applicant stated that he had been falsely accused of being a Christian (see paragraph numbered 3 of its reasons above). At this stage of my reasoning, I have focussed only on the matter of the applicant's claimed Christianity. The Tribunal's decision wholly to disbelieve the applicant was also based upon its rejection of his claims to have participated in the student demonstrations in Teheran, about which the applicant makes no complaint. The Tribunal's review of the materials on both aspects of the applicant's claims was eventually drawn together in a finding that it was unable to believe either of the two sets of claims (see paragraph numbered 5 of its reasons above). However, in view of the other material identified above, it is not necessary to decide whether the material relating to the rejected claims of participation in the student demonstrations would in itself be sufficient evidence or other material to justify the credibility finding challenged by Ground 3. 21 Even if I am wrong in my conclusion that the first requirement has not been satisfied, and it becomes necessary to consider the second requirement, I do not think that it can be said that the Tribunal's decision not to believe the applicant's claims was based on the existence of the particular fact that the phrase "my beliefs are different" meant only that the applicant did not believe in regularly attending the mosque, going unshaven and not wearing gold jewellery. There were other independent bases for the Tribunal's credibility assessment, including those in paragraphs numbered 3 to 5 (inclusive) of its reasons to which I have referred immediately above. 22 The Tribunal expressed its understanding of the meaning of the phrase "my beliefs are different" in paragraph numbered 12 of its reasons. It had, much earlier in its reasons, set out its credibility findings, including that the applicant had not converted to Christianity, and would not continue to practise as a Christian if he were to return to Iran in the reasonably foreseeable future. 23 In any case, I do not think that the applicant has established that the Tribunal got the meaning of the phrase "my beliefs are different" wrong. That is, the applicant, in my view, has failed to establish that the allegedly basal fact did not exist, within the meaning of s 476(1)(g) when read with s 476(4)(b). 24 When one examines the interview notes taken shortly after the applicant's arrival in Australia, the statement "my beliefs are different to them" appears in the context of a description of his dismissal from the motor company. That description also included the following: "Unit in company enforces religious behaviour - people required to conform - participate in processions - prayers. I don't like to be pressured.

I know that the reason was my appearance and behaviour, why shaving, why wearing gold rings." 25 Given that context, I think it was well and truly open to the Tribunal to take the phrase "my beliefs are different" to mean that the applicant did not believe in regularly attending the mosque, going unshaven and not wearing gold jewellery. In the third sentence of paragraph numbered 12 above the Tribunal explained why it so construed the phrase, i.e. because at the very same interview the applicant had clearly stated that he was a Shia Moslem. 26 I do not think that Ground 3 has been made out. 27 In Ground 4 the applicant put forward another "no evidence" ground. That was to the effect that the Tribunal based its decision on the existence of a particular fact, namely a claim by the applicant to have attended the Armenian church in Iran. 28 In written submissions made to the Tribunal, his solicitor said: "1. The applicant adopted Christian beliefs about 10 years ago. He has been attending the Armenian church services. He attends the Protestant Christian services here. The dismissal from his job and his inability to get a reference was because of his religious beliefs.

He hasn't been vocal about his religious beliefs because in Iran, he had to keep his beliefs very private. He could not admit to his conversion while he was in Iran." 29 I think that in the interests of clarity it is useful at this point to identify "the decision" to which this Ground is said to relate. In formal terms, the decision was identified in Ground 4 as being "… that the applicant did not have a well-founded fear of persecution in Iran for a Convention reason …". I think that it is reasonable to treat the decision so identified as being the Tribunal's decision to disbelieve the applicant's religion-based claims. In the present case, it is that decision to which s 476(1)(g) refers. 30 As I have already discussed above, there was ample evidence or other material to justify that decision. I shall not repeat it here. Accordingly, the first of the three requirements of the "no evidence" ground has not been made out. But in case I am wrong in that approach, I will proceed to an assessment of whether s 476(4)(b) applies to the circumstances of this case in the manner contended in Ground 4. 31 The Tribunal's finding of disbelief of the applicant's religion-based claims was not based on the fact that the applicant claimed to have attended the Armenian church in Iran. There were numerous other independent reasons given by the Tribunal for disbelieving the applicant's claims of persecution by reason of religion. For example, there was his failure to mention, at initial interview, that he was a Christian convert and had held Christian beliefs for approximately ten years, and the fact that he told an official of the respondent's Department that he was a Shia Moslem, a statement which was repeated in Part C of his application for a protection visa. 32 The relevant fact which is said not to have existed was a specific claim by the applicant that he had attended the Armenian church services in Iran. 33 In my view, it was open to the Tribunal to take the first of those above submissions (set out in paragraph 28 of my reasons) as meaning that the applicant had attended Armenian church services in Iran and Protestant Christian services here (in Australia). The applicant has been in immigration detention since his arrival in Australia. The use of the word "here" in the third sentence of that submission is a clear reference to "in Australia". The Tribunal was quite entitled to infer from the previous two sentences that they referred to matters which occurred before the applicant left Iran. 34 I do not think that the applicant has discharged his burden of proving that the above-mentioned fact (that the applicant had made the claim referred to in Ground 4) did not exist. The applicant relied upon submission numbered 2 (also set out in para 28 of my reasons above) as somehow displacing such a claim. I do not think that that disproves the fact-finding complained about. It is quite consistent for a person to attend church services without being vocal about religious beliefs, to keep such beliefs very private, and not to admit to any conversion. 35 I do not consider that Ground 4 has been made out. 36 Ground 5 was another "no evidence" ground. The particular fact identified in this ground was "that the applicant completely failed to mention that he had held Christian beliefs for approximately ten years". The applicant says that this "fact" did not exist. He had stated during his initial interview upon arrival in Australia that his "beliefs are different" to the beliefs of those in Iran. This, so it was submitted, disproved the finding that the applicant had completely failed to mention that he had held Christian beliefs for approximately ten years. 37 To a very considerable extent this ground overlaps with Ground 3, which I have considered above. I incorporate by reference and rely upon my reasoning in relation to Grounds 3 and 4 to the effect that there was evidence or other material to justify the Tribunal's decision to disbelieve the applicant's religion-based claims to a well-founded fear of persecution in Iran. Once again, in case I am wrong in that approach, I shall proceed to an assessment about whether s 476(4)(b) applies in the circumstances referred to in Ground 5. 38 In my view, the fact that the applicant, at his initial interview, stated "my beliefs are different to them" does not render false a finding that the applicant completely failed to mention that he had held Christian beliefs and had held those beliefs for approximately ten years. There is absolutely no reference to the word "Christian" or "Christianity" in the notes of the initial interview. There was no identification of any other body of religious beliefs. As counsel for the respondent, Mr A A Jenshel submitted, the reference to "my beliefs are different" in the context of the applicant's other answers at the initial interview amounted to a statement that the applicant had been born into an Islamic family, formally assessed himself as a Shia Muslim, but did not observe Islamic customs. 39 In my opinion, Ground 5 has not been made out.

Conclusion 40 For the foregoing reasons the application will be dismissed with costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

A/g Associate: Dated: 4 May 2001 Counsel for the Applicant: Mr P D Quinlan

Solicitor for the Applicant: Messrs Mallesons Stephen Jaques

Solicitor for the Respondent: Australian Government Solicitor

Dobari v Minister for Immigration and Multicultural Affairs

At a glance

Court

Decision date

Before

Source

Judgment (9 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (2)