Ghaghou v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application to review a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 15 August 2001. The application was lodged before the commencement of Schedule 1 to the Migration Legislation Amendment (Judicial Review) Act 2001. 2 The applicant is an Iranian national who arrived in Australia on 25 August 2000. Just over six weeks later, on 9 October 2000, a migration agent lodged on her behalf an application for a protection visa. This was refused by the respondent's delegate, and that decision was affirmed by the Tribunal. 3 The application to the Court in its original form apparently relied on the grounds specified in pars (b), (c) and (e) of s 476(1) of the Migration Act 1958 ("the Act"). The application was subsequently amended expressly to rely on those grounds and on the grounds specified in par (a) and par (g) of s 476(1). Particulars of all the grounds were set out in a second further amended application filed in Court at the hearing. 4 The particulars were lengthy and repetitive. In respect of the s 476(1)(a) ground, it was alleged that the Tribunal made its decision on the review of the delegate's decision "without reading or noting" six specified items of material said to be in evidence before it and that it failed to comply with s 424A of the Act. The applicant alleged in respect of each of the grounds under pars (b), (c) and (e) of s 476(1) that the Tribunal "ignored relevant material because it did not take into account" five specified matters plus the six items of material earlier stated in respect of the s 476(1)(a) ground. Further, in respect of those grounds, it was alleged that the Tribunal "concentrated too much on inconsistencies" and "in doing so identified wrong issues" (which were specified), failed "to read … country information" in one of the six items earlier specified, and thus "proceeded instead to focus upon peripheral and irrelevant issues". The applicant alleged too that the Tribunal "asked itself the wrong question" and failed to consider "what if I am wrong". (It is not necessary for the time being to describe the nature of the allegations made in support of the "no evidence" ground under s 476(1)(g) of the Act.) 5 The applicant was born on 18 August 1960 in Orümiyeh in north-western Iran. She is an Assyrian and a Christian, which means that in Iran she is a member of an ethnic minority and a religious minority. The applicant belongs to the Assyrian Church of the East. In 1989 she married and moved with her husband to Ahvāz in south-western Iran. She lived there until she left to travel to Australia in August 2000. The applicant came with her two children to visit her sister in Sydney who is an Australian citizen. 6 The applicant's reasons for claiming to be a refugee were set out in a statutory declaration made by her attached to the protection visa application. Importantly, she claimed to fear persecution as a result of "circumstances which emerged after my departure" from Iran. 7 The essential story told by the applicant about how those "circumstances" came about was as follows. There was no resident priest at her church in Ahvāz. A priest from Tehran visited once a month to conduct a service. To fill the gap she and other parishioners met in their residences to pray and read the Bible. For several years the group met every second Thursday. They took it in turns to host the meetings. Over the past seven years they met at the applicant's house roughly about ten times, that is, at least once a year. Two Muslim sisters whom she had befriended at her place of work attended the group's meetings at her house. The sisters did not attend other meetings of the group. It was the applicant's turn to host the group on the day she was booked to travel to Australia. She told the group at their regular fortnightly meeting beforehand that the meeting next scheduled for her place was cancelled. The applicant was unable to notify her two Muslim friends of the meeting's cancellation. They attended her house at the scheduled time and, being unable to gain entry, attracted the suspicion of a Muslim neighbour who called the authorities. The Muslim women were arrested and confessed to attending the group's meetings at the applicant's house. The applicant's husband was detained, their house was searched, and the applicant herself was charged before the Revolutionary Court with spreading the Christian religion to Muslim citizens. 8 The Tribunal did not find the applicant to be a credible witness. It was prepared to accept that the church group met every two weeks and that the location of its meetings rotated among the group's members. The Tribunal was also prepared to accept that the applicant had worked with two Muslim sisters. However, the Tribunal did not accept that the two sisters ever persuaded the applicant to allow them to attend the church group's meetings at her home. It said: "… It follows that the Tribunal does not accept that they came to her home by a misunderstanding just on the day she left Iran, that they were denounced by a neighbour and arrested by the Pasdaran and that under duress they confessed that they had been attending Christian meetings at the applicant's home. It further follows that the Tribunal is unable to accept that the applicant was charged with actively promoting Christianity among Muslims, that she was summonsed to appear before a court and then tried in absentia, and that she was issued with an 'absence order' which she is required to pick up personally. It also follows that the Tribunal is unable to accept that the applicant's husband lost certain privileges in his job because of her actions. Accordingly, the Tribunal cannot accept that the applicant has a well-founded fear of persecution because of her imputed religious views or activities. Although neither the applicant nor her adviser raised the issue, the Tribunal also had regard to the question of whether there could be seriously adverse consequences for the applicant if she is deported back to Iran, because of her protection visa application. The Tribunal drew on and accepts the independent information cited at pages 20 and 21 above, which indicates that the mere act of applying for refugee status abroad would not normally evoke any punishment by the Iranian authorities. On the basis of the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant will suffer persecution for a Convention reason in the reasonably foreseeable future if she returns to Iran. Accordingly, the Tribunal cannot be satisfied that the applicant's fear of persecution for a Convention reason is well-founded." 9 The Tribunal's statement under s 430(1) of the Act was carefully prepared. It tracks the development of the applicant's claims and refers to the material submitted on the applicant's behalf and to other sources of information about Iran. Counsel for the applicant seeks to show that Tribunal erred in making its findings. In effect, he sets out to show that those findings are against the evidence or the weight of the evidence. That approach is reflected in the excerpts from the particulars extracted at [4] above. I regret to say that, in my opinion, the drafter of those particulars has completely misunderstood what was said by McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 75 ALJR 1105 at 1119-1120 [82]-[85]. For example, it is alleged that the Tribunal identified "wrong issues" as follows: "i) the manner by which the two sisters would enter the applicant's house; ii) how the applicant knew that the neighbour had informed the Pasdaran; iii) how the Pasdaran discovered the nature of the meetings held at the applicant's house; iv) why and how the Pasdaranwere able to arrest the two sisters immediately; v) the type of treatment afforded the applicant's husband by the Pasdaran; vi) the apparent anomaly [sic] between the applicant's oral and written evidence concerning dates in relation to the summons." The Tribunal did not, however, identify such matters as "issues". It referred to them in reaching its findings but that does not suggest that it lost sight of the issue before it, namely, whether the applicant possessed a well-founded fear of persecution by reason of her religion. In this case the Tribunal had necessarily to make a "threshold" finding in the sense described by McHugh and Gummow JJ in Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 at [89]. 10 Once the Tribunal found as a fact that the Muslim women did not attend meetings of the applicant's church group at her house, any fear of persecution could not be well-founded. On a fair reading, its reasons show that the Tribunal recognized that in Iran evangelizing Muslims was an activity fraught with danger and that evangelists were punished if they were apprehended. The applicant specifically eschewed such activities and said that "our religious denomination does not obligate us to proselytize." The Tribunal expressly noted that the claim was that her allowing the two Muslim women to attend meetings would be seen by the authorities as an act of evangelism. In the light of the case advanced on behalf of the applicant no other finding of fact by the Tribunal was required. 11 The no evidence ground under s 476(1)(g) and the alleged s 424A procedural ground under s 476(1)(a) relate to a copy of a "summons" submitted by the migration agent following the applicant's appearance before the Tribunal. The authenticity of this document was not accepted by the Tribunal which viewed it as a forgery. Section 424A does not, however, apply in the present case because the applicant gave such "information" to the Tribunal. Further, no submission was made by counsel for the applicant as to how the qualification on the no evidence ground in s 476(4) was met. In any event, the Tribunal's view about the authenticity of the document followed inevitably from its conclusions about the applicant's credibility. That finding is, of course, a finding of fact: W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703. 12 Finally, counsel for the applicant referred to the decision of the Full Court in Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548, although, I regret to say, it was not clear to me for what purpose. It would seem that he intended to rely on what was said in that case about persecution by reason of future conduct. But in the present case the applicant herself expressly denied any evangelical mission and the Tribunal certainly did not suggest that, if returned to Iran, she would be obliged to compromise any strongly held religious belief. The Tribunal thus did not have to consider the laws against proselytizing in Iran. Whether all the sanctions imposed on offenders under such laws constitute persecution for reason of religion under the Convention is a question for another day. A right to religious freedom such as that identified in Wang occasionally collides with laws of general application with a perfectly rational basis as the history of the Free Exercise Clause under the First Amendment of the American Constitution shows. 13 None of the grounds relied on by the applicant has been made out. The application will be dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.