Mashayekhi v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT Introduction 1 The applicant, a citizen of Iran, arrived in Australia on 2 November 1998. He applied for a protection visa on the ground that he was a refugee and therefore a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the 1967 Protocol relating to the Status of Refugees ("the Convention"). His application was refused and the refusal was affirmed by the Refugee Review Tribunal ("the RRT"). The applicant has applied to the Court for the review of the decision of the RRT under Part 8 of the Migration Act 1958 (Cth) ("the Act").

Background 2 The applicant claimed that he was a refugee as defined in Art 1A of the Convention, and therefore a person to whom Australia has protection obligations, on two grounds. The first ground was that he had a well-founded fear of political persecution by reason of his activities in an anti-government movement known as the People's Mujaheddin Organisation of Iran. The RRT did not accept the applicant's account of those activities and rejected his claim to refugee status on the ground of political persecution. The review of the decision on that ground was not pressed at the hearing. 3 The applicant also claimed a fear of religious persecution by reason of his conversion to Christianity. The applicant claimed that he converted to Christianity in Iran and would be liable to be executed as an apostate if the Iranian authorities discovered the conversion. The conversion was said to have occurred after the applicant and his Armenian friends held meetings at the applicant's house during which they discussed Christianity and read the Bible. As a result of those activities the applicant claimed that he was baptised into the Christian faith. The RRT did not accept the applicant's account of his conversion to Christianity and rejected the claim to refugee status on the ground of religious persecution. 4 Primarily, counsel for the applicant contended that the RRT had based its decision on the existence of a particular fact, the conversion of the applicant to Roman Catholicism, that did not exist: see ss 476(1)(g), 476(4)(b) and Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-221. Counsel relied on the transcript of the hearing before the RRT, and its decision, to contend that the RRT acted on the basis that the applicant's conversion was to Roman Catholicism whereas, in fact, his conversion was to Christianity. As a related issue the applicant also challenged the adverse credibility findings of the RRT on the basis that they were also based on the erroneous assumption that he claimed that he converted to Roman Catholicism. The RRT's decision 5 The RRT summarised its conclusions in relation to the applicant's alleged political involvement as follows: "While one or two minor inconsistencies in the Applicant's story may have merely been a consequence of nervousness or the passage of time, the Applicant has made several inconsistent statements about material issues in various submissions that, taken together, indicate he has fabricated his story that he was a political activist on behalf of the PMOI." 6 The RRT then considered whether the applicant faced persecution on the basis that he had converted to Christianity. The RRT concluded: "The Applicant says he has been a converted Christian for many years, but he does not know the Lord's Prayer. Nor did he know the names of any of the Disciples. As pointed out by the delegate, the Applicant was also deficient in knowledge of some parts of the Bible, despite claiming to have twice read it in its entirety and reading some parts more than twice, as well as access to abridged versions of Bible stories. While he was restricted by language, that does not explain total lack of knowledge in regard to the names of the Disciples and the names of the books in the Bible. Although he has been in detention in Australia, he appears not to have made any real effort to pursue the faith to which he says he has converted. He knows there are two priests who visit the IDC and said he has spoken to one who is "Egyptian" although he does not know his denomination. Despite the limited opportunities, his failure to seek further guidance and knowledge about his claimed faith supports a conclusion that he has not converted to Christianity. The Tribunal does not accept the submission that having some knowledge of Christianity demonstrates that the Applicant has converted to that religion. It is common knowledge that people of various religions or atheists or agnostics may have some interest in or knowledge of other religions. It does not follow that they are devotees of the faith of which they have some knowledge. The Tribunal accepts that the Applicant has some knowledge of Christianity, but he has embellished that knowledge by claiming he is a convert. It does not accept that he was baptised into the Catholic church or any other Christian church, or that he is a practising or non-practising Christian." 7 Summarising its findings the RRT stated: "In considering the totality of the Applicant's claim and the evidence before it, the Tribunal found that the Applicant was not a reliable witness in assessing facts that are material to his case. It does not accept that he was affiliated with the PMOI or that he was suspected of such an affiliation. Nor does it accept that he is a convert to Christianity. It finds that he does not have a well-founded fear of persecution for those or for any other Convention reason. It is satisfied that he is not a person to whom Australia has protection obligations and does not meet that criterion for the purposes of granting a protection visa." Was the RRT's decision based upon a fact that did not exist? 8 The answer to the applicant's case on this ground is that the RRT based its decision on the claim by the applicant that he had converted to Christianity, rather than on a claim that he had converted to Roman Catholicism. Thus, the premise upon which the applicant relies has not been made out. In order to establish that premise counsel for the applicant relied upon passages in the transcript of the hearing rather than on the reasons for decision. In its reasons for decision the RRT accepted that a fear of religious persecution by reason of being an apostate would be well founded if the applicant had, in fact, converted to Christianity. On that issue the RRT, based on its adverse findings as to the applicant's credit, did not accept that the applicant had converted to Christianity.