Farajvand v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT (delivered orally and revised) 1 In this matter I heard argument this morning after receiving written submissions from both parties. I have been able to deal with the matter this afternoon in significant part because of the quality of the assistance which I have received from both parties, for which I am grateful. 2 This is an application for an order for review by the Court of a decision of the Refugee Review Tribunal (to which I will refer as the Tribunal), made on 10 April 2001, affirming the decision of a delegate of the respondent Minister, made on 31 January 2001, not to grant to the applicant a protection visa under the Migration Act 1958 (the Act). 3 The applicant is a 31 year old male national of Iran. He arrived in Australia without a visa by boat on 9 November 2000, whereupon he was held in immigration detention in Derby, Western Australia, where he has remained. On 26 November 2000 the applicant applied for a protection visa under the Act and the Migration Regulations (class AZ, sub-class 866). Accompanying that application was a signed statement taken from the applicant and prepared on his behalf by a migration agent, dated 24 November 2000. 4 The applicant was interviewed by a delegate of the respondent on 2 December 2000. On 31 January 2001 the delegate refused to grant the visa and, by letter of that date enclosing reasons for the decision, informed the applicant of the refusal. The reasons reflected a decision by the delegate that the applicant was not a person to whom Australia owed protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York in 1967 (which I will refer to together as the Convention). 5 On 2 February 2001 the applicant applied to the Tribunal for review. A written submission to the Tribunal was made on the applicant's behalf on 21 March 2001. On 27 March 2001 a hearing was held before the Tribunal. At the hearing the applicant gave evidence and two witnesses also appeared and gave evidence in support of the applicant's claims. On 10 April 2001 the Tribunal handed down its decision affirming the decision of the respondent's delegate to the effect that the applicant was not entitled to a protection visa. It is this decision in respect of which the applicant now seeks review by an application to the Court dated 11 May 2001. 6 Before the Tribunal, and by written submissions, the applicant claimed that he had a fear of persecution by reason of his religion should he be returned to Iran. 7 The Tribunal's reasons commence by noting that the Tribunal had before it the record of the interview conducted by departmental officials soon after the applicant's arrival in Australia, the record of subsequent interview by the delegate who had decided the applicant's application for a protection visa, a complete protection visa application form itself, along with another form (Form 80), and written statements and submissions submitted by or on behalf of the applicant. 8 The Tribunal noted that the applicant had given sworn oral evidence before it, as had two witnesses to whom I shall refer to, as the Tribunal did, as Masoud and Davood. The Tribunal also had before it a letter in support of the applicant's claims from a Reverend Andrew Watts, a minister in the Kimberley Uniting Church, and, as appears from the reasons for the decision, the Tribunal also had before it, or had access to, material being referred to as 'country information'. 9 The Tribunal's reasons then recount what it saw as the applicant's case before it. I propose to set this out in a little detail, because in fairness to the submissions of Mr Markus on behalf of the Minister, it is important to understand the breadth of the case that was in large part rejected by the Tribunal. I propose to set the applicant's claims out in sub-paragraphs as follows: (a) The applicant was born and lived in Tehran, Iran. After completing 13 years of education in 1987, the applicant undertook military service between 1987 and 1989. He then became a self-employed trader, travelling between Iran and various Asian countries, where he lived for prolonged periods between 1989 and 1998 before returning to Iran in December 1998, in order to become a shopkeeper. The applicant remained in Iran until November 1999 when he left Iran and went to Indonesia, where he had stayed until he left for Australia some time in late 2000. (b) The applicant was raised as a Shia Muslim, but he was not devout. He became fed up with Islam, and became attracted to Christianity. Just before his last departure from Iran in 1999, he had lost interest in Islam. He had met a Christian by the name of Rubic, and they had discussed Christianity. Rubic was a business colleague, a wholesale dealer, and the applicant told the Tribunal that Rubic was a Protestant. By about mid-1999 Rubic had excited the applicant's interest in Christianity. The applicant went to five or so meetings, and visited Rubic's house twice. He did not go to church because Rubic had warned him that it was dangerous to do so. However, Rubic had pointed out the Protestant church in Tehran, which looked like a house. (c) On the second occasion that he went to Rubic's house, the applicant met another person whom he believed had had some trouble with the Iranian authorities. He initially identified the man as Esmaiel, but had told the delegate and the Tribunal that he could not recall who the man was. On that occasion they had been speaking for some 20 minutes when two officials entered the house and indicated that they were going to arrest the occupants. The security officials did not say anything other than to tell the men not to speak. They searched the house. Initially the applicant had indicated that Esmaiel had pushed one of the men, allowing the applicant to escape. At the hearing before the Tribunal, the applicant had said that the three men were taken into a car, and were being taken elsewhere when the applicant managed to escape. On being questioned by the Tribunal, the applicant said that he had escaped while being taken to the car. (d) After his escape the applicant did not go home. He contacted his brother, who advised him to stay in hiding with another relative. The applicant told the Tribunal this was the first time he had disclosed to anyone other than the people he met through Rubic that he was a Christian. Three days later he was informed that officials had come to his family home pretending to be friends, and had asked his mother about him. He thought that they may have wanted him in connection with Esmaiel, and because of his (the applicant's) tendency towards Christianity. He had also heard from his brother that Rubic was not to be found and that Rubic's business had been closed. (e) At the hearing before the Tribunal the applicant read a letter from his brother dated 22 February 2001. This letter warned the applicant not to return and definitely not to attempt to contact Rubic as the telephone was being monitored. His brother wrote that he had visited Rubic's business several times but it was closed up. He also wrote that their father had been detained and interrogated about the applicant's Christianity. I interpolate here that on my construction of the reasons of the Tribunal he, that is the brother, also wrote that their father had disowned the applicant and vowed to turn him over to the authorities if he returned to Iran. The applicant did not know what happened to Rubic and Esmaiel. (The reason for the interpolation, I should add, is that Mr Karp made a submission that there was a factual matter not dealt with by the Tribunal, being the fact of the father disowning the applicant and vowing to turn him over to the authorities. I think, with respect to Mr Karp's submissions which were otherwise careful and comprehensive as well as frank, that he has misread the Tribunal's reasons. I think that that matter, properly understood in the context of the reasons, is contained in the letter from the brother which the Tribunal did deal with. It found that the letter had been in effect fabricated. Therefore, interpolating at this point I think there is no substance to that complaint of the applicant.) (f) The applicant had claimed that his passport was confiscated when he returned to Iran in March 1998. He said that he did not know the reason that it was confiscated but agreed with the Tribunal that it was about to expire. He told the Tribunal that he was directed to report to a government office regarding his passport but did not do anything about this as he intended to remain in Iran permanently and never wanted to leave again. He explained that he was financially well off and wanted to marry and remain in Iran. When he escaped after the incident at Rubic's house he was so afraid that he did not try to obtain a new passport but used the money that he had, along with some from his brother, to escape across the border. He told the Tribunal that he had to escape quickly because he had been identified as a convert to Christianity. He was helped by people smugglers to reach West Timor, Indonesia, via Turkey, Malaysia and the Indonesian cities of Jakarta and Surabaya. He stayed for several months in both Jakarta and West Timor and in the other places for about a week or so. He had been given a false passport to cross the Turkish border, after which the false passport was retrieved by the smugglers. (g) In West Timor he had mixed with some Christians and was baptised into a Protestant church in August 2000 in Kupang. He told the Tribunal that he went to church every week and he actively recruited other people in Kupang to the church. He would tell them of the faults of Islam in order to prepare them to accept Jesus Christ. At one stage he was arrested in Kupang and interviewed by local officials of an office of migration. However, he was not registered with the United Nations High Commission for Refugees. He said that he had bribed the police that had arrested him and so was not sent to Jakarta with the other Iranians who were at that time arrested. (h) The applicant stated that in his present state of detention he goes to meetings with Reverend Watts when the latter comes to the detention centre, otherwise he goes to prayer meetings on Sundays and meets with other Christians or interested people every couple of days, when he attempts to recruit others to the church. He explained to the Tribunal that it was easy to recruit non-believers but that Muslims needed first to be "convinced of the evils of Islam, such as terrorism, stoning people and so on". He had recently converted a couple of fellow detainees and Reverend Watts had told him that these persons would be readied for baptism. (i) The Tribunal noted the letter before it from Reverend Watts. It noted that Reverend Watts had written that he believed the applicant to be a genuine Christian and accepted his baptism. He said that the applicant had attended services when Reverend Watts was at the detention centre and how the applicant would usually sit down with Reverend Watts to ask questions on Christianity in order to help him understand more. The Tribunal quoted what Reverend Watts had written in the letter as to how "as a natural consequence of the joy he feels as a Christian [the applicant] likes to be able to tell Muslim people he knows about Christianity particularly if they are showing an interest. He told me that he does this at [the detention centre]. It seems that he cannot resist sharing his faith with others". (j) The Tribunal then discussed, as part of the claims of the applicant, the two witnesses and their evidence. Masoud had told the Tribunal that he had met the applicant in Kupang and had noticed that he was active in the church and in criticising Islam in order to recruit people to the church. He said that some Iranians who had returned to Iran had informed on the applicant and, apparently, would have possession of photographs of his baptism and conversion. Masoud had provided a written statement in which he said that there were some 51 people under the control of the local immigration authorities in Kupang, including some Iranians. These people had witnessed Masoud's own conversion and some of them had come into conflict with Masoud and other converts. When these persons had returned to Iran they had, when first interrogated upon arrival, informed the authorities of Masoud's conversion. Masoud knew of this as the information had been passed back to him by his family from one of his friends, who was present at that first interrogation. (k) The other witness, Davood, said that he knew the applicant in Kupang, that the applicant was prominent in the church and consistently recruited other people into Christianity. He said that he, Davood, was among the people detained by local authorities and sent to Jakarta where he was chosen as a spokesperson to speak with the Iranian authorities there. He said that the Iranian Ambassador had had on that occasion a list of people whom he had asked Davood about. He had asked about the applicant; however, Davood had said that he did not know him. The point to be made, interpolated the Tribunal, was that the Ambassador had had sufficient interest in the applicant to make inquiries about him. Davood stated that at the detention centre (in Australia) the applicant encouraged people to become Christian and was critical of Islam although he, Davood, remained circumspect because he feared the reaction of other detainees. (l) Finally, the Tribunal summarised the applicant's case by saying the applicant had said that he had no difficulties with the authorities in Iran until 1999, that he was not politically active, that he feared he would be executed as an apostate and convert to Christianity. The Tribunal noted that the applicant had stated that his conversion was known and that he was highly critical of Islam and its use by Iranian authorities to suppress citizens in Iran. He said that he would continue to voice his opinions if he returned to Iran. He said his fears were exacerbated because he had left Iran illegally and now applied for asylum in Australia. 10 It can be seen from the above that the applicant's claims were made at various levels of factual layer. They included a fear of the consequences of his conversion and apostasy being publicly known and the public knowledge of his new religion. In saying that, I should not be taken to be underplaying the extent of the fears the applicant said he had from matters that had occurred in Iran prior to his arrival in Indonesia and from his express desire to criticise Islam if he went back to Iran. I say this for reasons which will become evident in a moment. 11 The Tribunal then set out under the heading "Legislative Framework" what it considered to be the applicable law. After noting the relationship between ss 36(2) and 65(1) of the Act (with parts 785 and 866 of Schedule 2 to the Regulations), the Tribunal made reference to various High Court authorities that have dealt with the definition of persons to whom Australia owes protection obligations under the Convention. In particular, the Tribunal noted what it understood as the "real chance of persecution" test: that the Convention term "well-founded fear of persecution" required that an applicant have a subjective fear of persecution and that there be an objective justification or foundation for this fear; that such fear of persecution would be well-founded if there is a real chance (being a chance that was "substantial" as distinct from "remote", "insubstantial" or "far fetched") of persecution upon return to the country of nationality. The Tribunal referred to Chan Ye Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 "as elaborated in" Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. The Tribunal devoted particular attention to what it understood to be the prospective nature of the assessment of the existence of a well-founded fear of persecution, referring to Mok Gek Bouy v Minister for Immigration, Local Government and Ethnic Affairs (1993) 47 FCR 1 and Minister for Immigration, Local Government and Ethnic Affairs v Mok Gek Bouy (1994) 127 ALR 223. 12 While not by any means an exhaustive statement of the applicable law, the Tribunal made, in my view, no particular error in its recitation of the limited set of principles to which it chose to make reference. I say limited set of principles because importantly, I think, it indicated no express consideration of, and familiarity with, decisions concerning the nature of religion as a Convention term and the relationship between that term and the notion of persecution inherent within the composite phrase within the Convention in Article 1A(2). In the light of the detailed reference to authority made by the Tribunal, but recognising that the Tribunal does not have a burden to refer to all cases to which it might have consideration, I do note that the Tribunal does not refer to Minister for Immigration and Multicultural Affairs v Zheng [2000] FCA 50 or Wang v Minister for Immigration and Multicultural Affairs (2000) 179 ALR 1. I do not identify these omissions as an error of law as such and it should not be taken as a criticism of the Tribunal that an exhaustive legal treatise on the notions of persecution and the Convention were not set out. That is not the purpose of the comment. It will become evident shortly, in examining the Tribunal's reasons, as a factor to be weighed in the balance in seeking to understand the true purport and meaning of what the Tribunal has otherwise said in its reasons and in seeking to understand the extent to which the Tribunal has fulfilled its obligations in considering all relevant considerations mandated by the Act. 13 The Tribunal next dealt with the applicant's claims under the heading "Discussion and Findings". The Tribunal identified correctly that the claims of the applicant focused on his conversion to Christianity and his fears of persecution in Iran as an apostate and as someone who would give voice, according to his claims, to his religious beliefs if he was returned to Iran. The Tribunal made findings of a strongly worded kind about the factual basis for the applicant's claims which he said had taken place prior to leaving Iran. It is unnecessary to set them out in detail. They are set out in pages 9 to 11 of the decision in the court book of relevant documents at pages 161 to 163. It suffices to recite the Tribunal's conclusion in this regard at page 163: The Tribunal concludes that the applicant was of no adverse interest to the Iranian authorities when he last left Iran, that he left legally and that he did not have any well-founded fears of persecution at that time. The outcome of his application, then, rests on whether or not he has become a refugee sur place. That is, whether or not new factors have emerged since his departure from Iran that would found a conclusion he now has a well-founded fear of persecution for Convention reasons. 14 That is a conclusion, otherwise explained in the decision, of a significant (almost wholesale) rejection of a body of evidence about what had happened in Iran. There were other findings contrary to the evidence and claims of the applicant, which I will deal with in due course. In particular, should I overlook any, they relate to a rejection of his claims that upon return to Iran he will be an outspoken derider of Islam. 15 If the claim for asylum rested at this point in the decision, that is at the point of assessment as to what had happened prior to leaving Iran, there would be little doubt that any claim for review would be a vain attempt to re-agitate the merits of comprehensive adverse factual findings. However, the claim to be a refugee sur place was thereafter dealt with in somewhat less adverse fashion. The Tribunal accepted the following facts: (a) The applicant had been baptised into the Christian faith after leaving Iran. (b) The applicant is now "a genuine Christian". In the light of the evidence it must be taken, and I do not understand the Minister, through Mr Markus, to contest it, that this acceptance was as a genuine Christian member of an evangelical church. (c) The applicant shares his Christianity at the detention centre with "people who show an interest". (d) It was possible that he had persuaded a couple to come to services at the detention centre. (e) The available country information indicated that although apostasy is punishable by death according to Islamic law, "in practice, converts who keep a low profile and worship quietly are unlikely to be subjected to adverse attention from authorities. However, if converts are publicly denounced and accused by their enemies they could face interrogation by the authorities, and those who actively proselytise, and, in particular, become agents of conversion, face potentially severe punishment". In effect, together with a number of earlier references to the effect that apostasy is punishable by death according to Islamic law, this was said to be a summary of the available country information. I do not read that summary as a rejection of any particular aspect of the country information (that was set out) not inconsistent with the summary. I will return to the country information later. (f) The applicant has continued to explore his new religion and wishes to share it with like minded people. (f) The applicant shares his interest and enthusiasm only with Muslims who have shown a similar interest. That is, "he isrelatively cautious, even in Australia, where he does not have to fear State authorities" [emphasis added]. 16 These findings must also be set in the context of matters which can be seen as adverse findings to his claims. (a) The Tribunal seriously doubted that the applicant was an active proselytiser in Kupang before coming to Australia, although the Tribunal did state in this context that, "even if he did wish to share his Christianity it is satisfied that he has been sufficiently circumspect to only approach people who already showed an interest". (b) The Tribunal did not accept that the applicant was a trenchant and overt critic of Islam and its implementation by the Iranian authorities. (c) The Tribunal was satisfied that Masoud and Davood had embellished their evidence to assist their friend to the extent that their evidence paints him as a critic of the Iranian authorities and an intransigent recruiter of Kurds, Arabs, Persians and others to the Protestant church. (d) In answer to the applicant's claim that if he returned to Iran he would continue to deride Islam in order to prepare people for Christianity, the Tribunal did not accept that he derided Islam "openly, if at all". The Tribunal stated that it was satisfied that he had "added a political dimension to his conversion in an effort to increase his chances of obtaining a protection visa". (e) The Tribunal found that the applicant is a "simple" or "ordinary" person in the sense that he had not been a devout practitioner of Islam or an office holder in political or religious institutions and that he was a trader in Iran and travelled overseas many times over a period of several years before returning to set up a shop and marry. (f) The Tribunal found that while his interest in and knowledge of Christianity had expanded since he last left Iran, he had not done anything since his departure from Iran to increase the likelihood that he faced persecution on his return beyond that of a remote chance. (g) The Tribunal did not accept that he has been identified as a convert and proselytiser by Iranians returning to Iran from Kupang. 17 At this point it is convenient to note two findings upon which Mr Markus, on behalf of the Minister, placed great weight and, if I may say so respectfully to Mr Markus, not unreasonably. On the top of page 169 of the court documents, on page 17 of the decision, the Tribunal found that "whatever initially motivated the applicant to embrace Christianity he has continued to explore his new religion and wishes to share it with like minded people". Towards the bottom of that same page and on the next page the Tribunal made the following finding: He can practice his Christianity and share it with other people who show a similar interest without a real chance of attracting adverse attention from the Iranian authorities. 18 I should add at this point that there was no finding by the Tribunal that the applicant did not have a subjective fear of persecution. The whole tenor of that part of the reasons dealing with the claim of the applicant to be a refugee sur place was dealt with on the basis of a lack of a well-founded fear of persecution; that is, examining the matter substantially objectively speaking. In summary, the Tribunal found that the applicant could return to Iran and practice his Christianity and share it with people who show a similar interest without a real chance of attracting adverse attention from the authorities. It was this that founded the conclusion that his fears of persecution were not well-founded (at the top of page 18 of the decision, page 170 of the court book). The sentence on the first full paragraph of page 18 of the decision, page 170 of the court book in fact contains within it, I think (and I think Mr Markus in submission fairly conceded as much), that the Tribunal found that the applicant did have a subjective fear of persecution. But the rejection of his claim for asylum was based on, as I have said, the finding of his ability to practise his Christianity and share it with other people who showed a similar interest without a real chance of attracting adverse attention from the authorities. 19 I am conscious of the need to examine the reasons of the Tribunal without an eye keenly attuned to the perception of error, or in a way other than what was referred to in Minister for Immigration and Multicultural Affairs v Wu Shang Liang (1996) 185 CLR 259 at 271-2 as beneficial construction. I recognise that the Tribunal members are not necessarily lawyers nor are they judges. I also accept the powerful point made by Mr Markus that these reasons have to be read in the light of the fact that the thrust of much, if not a greater proportion of the claim, was rejected by the Tribunal; that is, the parts of the claim dealing with events in Iran in the past and, indeed, his intentions in the future concerning proselytising in Iran and deriding Islam. Thus, I do not disagree with the submission of Mr Markus, carefully and persuasively put, that the reasons must be looked at in this context. They should not be overly parsed and analysed. They should, I think, (without intending to put a gloss on the clear injunction of the High Court which binds me), be looked at in a commonsense way without minute examination of the precise terms of facts found and expression used; and I think this approach requires, not so much a bias one way or the other as to what is meant, but a fair and commonsense-based understanding of what the Tribunal was attempting to get at in the light of what was being put to it. 20 What was the essence of the fact-finding (remembering that the relevant fact-finding is the claim for refugee status sur place after the rejection of much of the evidence which the applicant had given)? In my view, a commonsense and fair reading of, in particular, pages 16-18 of the decision, pages 168-170 of the court book, read in the context of the balance of the decision and in the light of how the applicant put his claim, is as follows: (a) He was a Christian. (b) He was a Christian of an evangelical congregation or church. (b) He wished to share his faith with like-minded people. (d) He was not a derider of Islam or someone likely actively to proselytise. (e) Public manifestation of belief and worship in Iran could well lead to adverse attention from authorities. (f) However, if "a low profile" were to be kept and worshipping were to be done "quietly" it was "unlikely" that adverse attention from the authorities would be drawn. (g) If he were to be "cautious" and "circumspect" in how he practised his faith, it would be unlikely that he would face adverse consequences or adverse attention.