VFAC v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2004-03-31|Before: Weinberg J

REASONS FOR JUDGMENT 1 This is an application under Pt 8 of the Migration Act 1958 (Cth) and s 39B of the Judiciary Act 1903 (Cth) to review a decision of the Refugee Review Tribunal ("the Tribunal") given on 21 June 2002. By that decision, the Tribunal affirmed a decision of a delegate of the respondent Minister refusing to grant the applicant a Protection (Class XA) visa. 2 The applicant, a national of the Islamic Republic of Iran, arrived in Australia on 16 February 2001. He lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 16 March 2001. That application was refused on 1 November 2001. On 21 June 2002, the Tribunal affirmed the decision not to grant a protection visa. 3 This application has had a somewhat unusual history. Initially, the applicant was unrepresented. During the course of his oral submissions, he made a series of quite startling allegations against the Tribunal member which, if true, might well have resulted in the Tribunal's decision being set aside on the ground of bias. I adjourned the hearing of the application to enable the applicant to receive pro bono assistance. 4 A later hearing was also adjourned after pro bono counsel informed me that he found himself in a difficult position based upon certain instructions that he had received. Eventually new pro bono counsel, and new instructing solicitors were appointed. The matter was then able to proceed. Ironically, the allegations that the applicant had made against the Tribunal member, which led to my decision to grant pro bono counsel, were abandoned. Counsel relied instead upon an entirely new ground in support of the application for judicial review. 5 That ground is in the following terms. "3. The decision is vitiated by jurisdictional error in that the Tribunal failed to discharge the duty imposed on the Tribunal by s 414(1) of the Migration Act 1958 to review the Respondent's decision to refuse to grant a protection visa to the Applicant, by failing to determine whether the Applicant was a person who, owing to a well-founded fear of being persecuted for reasons of religion or membership of a particular social group, was outside the country of his nationality (Iran) and, owing to such fear, was unwilling to avail himself of the protection of that country. Particulars In determining that, if he returned to Iran, the Applicant would not experience persecution because he would practice his Christian religion discreetly and not disclose his religious affiliation to authorities, and therefore would not attract adverse attention from Iranian authorities, the Tribunal: (a) failed to consider whether the choice of the Applicant to practice his Christian religion discreetly would be a voluntary choice uninfluenced by the fear of harm if he did not do so; (b) failed to consider whether the well-founded fear of persecution held by the Applicant was the fear that, unless he acted to avoid harmful conduct at the hands of, or condoned by, those for whom the government of Iran was responsible, the Applicant would suffer harm; (c) failed to consider whether persons for whom the government of Iran was responsible condone or inculcate a fear of harm in those living openly as adherents of the Christian religion; (d) failed to consider whether the infliction of harm could constitute persecution where a person must act discreetly to avoid that harm; (e) failed to consider whether, if the Applicant wished to display, or inadvertently disclosed, his adherence to or belief in the Christian religion, he was at risk of suffering serious harm constituting persecution; (f) failed to consider whether the Applicant might suffer serious harm if members of the Iranian community discovered that he was a Christian or an apostate; (g) created an artificial division between discreet and overt adherents of the Christian religion, without regard to the effect of the fear of persecution on the adoption of discreet patterns of living by Christians or apostate adherents to the Christian religion in Iran; (h) therefore failed to consider the real question that the Tribunal had to decide (namely, whether the Applicant had a well-founded fear of persecution for a Convention reason) by rejecting his claim because he would avoid harm by acting discreetly and concealing his religion and his membership of the particular social group of apostate adherents to the Christian religion." 6 As will become apparent, this ground is based squarely upon the decision of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 112 ("S395"). That judgment was delivered on 9 December 2003.

the applicant's claims 7 The applicant claimed that, whilst living in Iran, he undertook various political activities in opposition to the government and, by reason of those activities, suffered persecution at the hands of the Iranian authorities. 8 The applicant also claimed that whilst in Iran, he had befriended a Christian who introduced him to the teachings of Christianity. His friend had lent him a Bible, which he claimed to have read, and which enabled him to feel "at peace". He claimed that he had told another Christian acquaintance that he wished to become a Christian, but said that he had been warned of the risks associated with apostasy. 9 Following his arrival in Australia, the applicant underwent a formal conversion to Christianity. He claimed that since that time, he has practised his faith both privately, and publicly. 10 Before the Tribunal, the applicant's legal adviser submitted that the applicant had made a commitment "to spread the word that he is no longer intending upon keeping a low profile and concealing his religious beliefs". The applicant claimed that, by reason of his having become an apostate of Islam, he feared persecution, and possibly death, if required to return to Iran. 11 The material before the Tribunal included certain country information that appeared to support the applicant's claim regarding the treatment of apostates in Iran. For example, the Tribunal noted the following statement in the United States International Religious Freedom Report for Iran, released in October 2001: "Members of Iran's religious minorities - Baha'is, Jews, Christians and Sufi Muslims - reported imprisonment, harassment, and/or intimidation, based on their religious beliefs …" 12 The Tribunal also referred to the United States Department of State Country Report on Human Rights Practices in Iran for 2001 which contained the following statement: "Members of all religious minorities, including Christians, Jews, Zoroastrians, and Baha'is, suffer varying degrees of officially sanctioned discrimination, particularly in the areas of employment, education and housing. Applicants for public sector employment are screened for their adherence to Islam. The law stipulates penalties for government workers who do not observe "Islam's principles and rules" … Apostasy, or conversion from Islam to another religion, is punishable by death. Muslims who convert to Christianity also suffer discrimination. One organization in 1999 reported eight deaths of evangelical Christians at the hands of the authorities in the previous 10 years … A Christian group reported that between 15 and 23 Iranian Christians disappeared between November 1997 and November 1998 … Those who disappeared were reportedly Muslim converts to Christianity whose baptisms had been discovered by the authorities. The group had reported the figure believes that most or all of those who disappeared were killed …" (emphasis added) The applicant told the Tribunal that he agreed with what was set out in these passages. 13 However, the Tribunal also had regard to other reports, including one prepared by the Department of Foreign Affairs and Trade ("DFAT"). That report stated: "Iranians who had based their asylum applications on their conversion from Islam to Christianity would, in almost all cases not suffer particular problems if returned, unless they declared to the authorities on return their new religious affiliation". (emphasis added) The DFAT report also observed that converts to Christianity who maintained "a very low profile" were generally tolerated.

the tribunal's findings 14 The Tribunal rejected each and every one of the applicant's claims arising out of his supposed involvement in political activity in Iran. No complaint is made about the Tribunal's findings regarding this issue. 15 The Tribunal then turned to the applicant's claims based upon his conversion to Christianity. It accepted that his conversion had been genuine. However, it rejected his claim that his "involvement with Christianity and the Christian Church in Australia" was "of a type which would give rise to a real chance of persecution". That finding was based, in part, upon its conclusion that the Iranian authorities would not "be aware of his baptism", which had occurred after his arrival in this country. 16 The Tribunal went on to say: "… as a recent Christian convert, with only a limited knowledge of the faith and no formal involvement with the Christian faith prior to his departure from Iran for Australia, the Tribunal does not accept that the applicant would undertake Christian-related activities at a level which would attract adverse attention from Iranian authorities. In this regard the Tribunal refers to the DFAT country information cited already which states that "Iranians who had based their asylum applications on their conversion from Islam to Christianity would in almost all cases not suffer particular problems if returned, unless they declared to the authorities on return their new religious affiliation … The evidence is that those converts who go about their devotions quietly are generally not disturbed (it is either those who actively seek attention, or who are engaged in conspicuous proselytization, who have run into difficulties, usually with the local mosque rather than state authorities)". Based on his history and level of involvement, the Tribunal does not accept that the applicant would engage in proselytising or otherwise actively seek attention." (emphasis added) 17 The Tribunal concluded that: "… the applicant would not practice his faith in Iran in a way which would give rise to a real chance of persecution at the hands of the Iranian authorities for reasons of either conversion or apostasy." 18 It was for these reasons that the Tribunal found that the applicant would not face a real chance of persecution by the Iranian authorities, by reason of apostasy or conversion to Christianity, or any other reason related to his religion, should he return to that country.

the applicant's SUBMISSIONS 19 Mr Hanks QC, who appeared with Dr Beard as pro bono counsel on behalf of the applicant, submitted that the Tribunal's decision should be set aside by reason of jurisdictional error. He submitted that the Tribunal, having accepted that the applicant was a practising Christian, and that it would not be possible for him to engage in the open and free practice of his religion in Iran without the risk of discrimination and harassment, ought to have granted him a protection visa. The only reason that the Tribunal had declined to do so was its finding that, provided a convert to Christianity did not declare his conversion publicly, but rather went about his devotions discreetly, he would not generally be disturbed. 20 Mr Hanks submitted that this approach was at odds with the reasoning of the High Court in S395. He referred, in particular, to the following statement of principle in the joint judgment of Gummow and Hayne JJ at [80]: "If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the chance of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief. But it is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question. And to say to an applicant that he or she should be "discreet" about such matters is simply to use gentler terms to convey the same meaning. The question to be considered in assessing whether the applicant's fear of persecution is well founded is what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences." (emphasis added) 21 Mr Hanks also referred to the following passage in the joint judgment of McHugh and Kirby JJ at [39]: "In the present case, for example, although the appellants did not raise any issue of modifying their behaviour because they feared persecution, it seems highly likely that they acted discreetly in the past because they feared they would suffer harm unless they did. If it is an error of law to reject a Convention claim because the applicant can avoid harm by acting discreetly, the tribunal not only erred in law but has failed to consider the real question that it had to decide - whether the appellants had a well-founded fear of persecution." (emphasis added) 22 Their Honours went on to say at [40]: "… But persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality. The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps - reasonable or otherwise - to avoid offending the wishes of the persecutors. Nor would it give protection to membership of many a "particular social group" if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution. Similarly, it would often fail to give protection to people who are persecuted for reasons of race or nationality if it was a condition of protection that they should take steps to conceal their race or nationality." (emphasis added) 23 Mr Hanks submitted that the Tribunal in the present case had not considered whether any choice, on the part of the applicant, to practise his Christian faith discreetly in Iran would be voluntary, uninfluenced by the fear of harm if he were to go about his devotions openly. Nor did it consider whether that fear of harm could amount to persecution. By rejecting the applicant's claim merely because he could avoid harm by acting "quietly", the Tribunal had failed to consider the real question that it had to decide - namely, whether he had a well-founded fear of persecution. 24 Mr Hanks acknowledged that the Tribunal had found that the applicant would not feel compelled to proselytise, or otherwise seek attention, on his return to Iran. He accepted that this finding could not be challenged on judicial review. However, he submitted that the Tribunal had not considered whether the applicant was at risk of suffering serious harm merely by practising his new faith freely and openly. It had simply assumed that it was reasonable to expect that he would be discreet in his observance. In doing so, it had not properly considered his claim that he had a "real fear of persecution if he returned to Iran". 25 Mr Hanks submitted that the applicant fell squarely within the principles laid down in S395, and in particular, the following passage in the joint judgment of McHugh and Kirby JJ at [43]: "… It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly." 26 Mr Hanks also relied upon an earlier decision of Allsop J in Farajvand v Minister for Immigration and Multicultural Affairs [2001] FCA 795. There, his Honour set aside a Tribunal decision that confused the avoidance of adverse consequences with the fear of persecution. His Honour observed at [34]-[35]: "34. … the Tribunal has not directed itself to the question as to whether the anticipated limits on the practice of the Christian faith of this applicant and the foresight of any such limitation did or did not amount to persecution or, more accurately, a well-founded fear of persecution. 35. To fail to undertake that analysis is not the leaving aside of a mere factual piece of probative evidence. It is to fail to complete the analysis of the position of the applicant as a refugee sur place. This is so even if it is not to be accepted from the findings that the Tribunal did find that the applicant would limit his religious practice because of a recognition or fear of State action in Iran." 27 Finally, Mr Hanks relied upon the decision of a Full Court of this Court in SGKB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 44 ("SGKB"). There, an Iranian national claimed to fear persecution under the Convention, by reason of his religion. On review, the Court held that the Tribunal had failed to evaluate the objective basis of the appellant's fear because it had failed to appreciate the distinction between the likelihood of his suffering persecution, and the objective justification of his fear. In particular, the Tribunal had failed to take into account the potential seriousness of the consequences to the appellant of exposure of the fact of his conversion, or to consider his fear in that context. In so doing, the Full Court held that the Tribunal had erred in law by applying the wrong test - that is, it had failed to complete the required analysis. 28 Mr Hanks noted that the Minister had sought special leave to appeal to the High Court from the decision of the Full Court. Special leave had been refused on the basis that the Full Court had approached the matter correctly. 29 In conclusion, Mr Hanks submitted that the same criticisms could be levelled at the Tribunal in the present case. He submitted that it had "failed to complete the analysis", and in doing so, had failed to ask the question posed by both the Act, and the Convention. In particular, the Tribunal had failed to ask whether the applicant's ability to fully develop his religious beliefs, and to freely practice his new faith, would be restricted by the fear of persecution upon return to Iran.

the respondent's submissions 30 Mr Tracey QC, who appeared with Ms Moore on behalf of the respondent, submitted that the decision in S395 was distinguishable from the facts of the present case. He contended that S395 did not establish any principle of general application, but should rather be regarded as sui generis. He sought to distinguish that case by noting that the appellants in that case had been involved in a longstanding homosexual relationship prior to their arrival in Australia, whereas the applicant in the present case had only the most tenuous links with Christianity before he left Iran. Mr Tracey also noted that S395 had been decided by the barest majority, and that the three members of the Court in the minority had delivered powerful dissenting judgments. 31 Mr Tracey then noted that the Tribunal had rejected the applicant's claim that he would feel completed to proselytise, or otherwise draw attention to himself, if he returned to Iran. He submitted that, in light of that finding, the Tribunal had been entitled to conclude that if the applicant were discreet in his observance of the tenets of Christianity, his apostasy would be unlikely to come to the attention of the Iranian authorities. He submitted that every case had to be to considered on its own peculiar facts, and that no error could be demonstrated in relation to the Tribunal's findings.

consideration 32 In my view, Mr Hanks' contentions regarding the scope and effect of S395 are correct. I am unable to see any significance in the fact that the judgment in that case was delivered by a sharply divided Court. There is a clear majority view although there are subtle differences in the manner of expression in the two joint majority judgments. The unifying principle underlying those judgments can be readily discerned. Asylum seekers are not required, nor can they be expected, to take reasonable steps to avoid persecutory harm. Nor are they expected to live "discreetly" to avoid such harm. The very vice that was identified in the Tribunal's reasoning in S395 is also to be found in its reasoning in the present case. 33 The Tribunal, having found that the applicant would not engage in proselytising, or otherwise actively draw attention to himself, then concluded that it was unlikely, assuming that he kept a low profile, that the Iranian authorities would come to learn about his apostasy. It may well be that this factual finding was open, though it might be regarded by many as implausible. Nonetheless, it provides no answer to the proposition that the Tribunal has imposed upon the applicant, as an asylum seeker, an obligation that S395 holds that he is not required to assume. 34 The country information to which the Tribunal referred, and which it appeared to regard as reliable, suggested that those who had committed apostasy could be subjected to various forms of discrimination. Although there were few recorded instances of apostates having been executed, there were many instances of lesser harm having been inflicted upon such individuals. Plainly, nothing in the country information supported the conclusion that an apostate, whose conversion became known, could not have a well-founded fear of persecution. 35 The applicant's case seems to me, if anything, stronger than the case of the appellant in SKGB. There, the asylum seeker did not exhibit any interest in Christianity until some time after his arrival in Australia. In the present case, however, the applicant developed links with Christianity whilst still in Iran, and underwent a formal conversion shortly after he arrived in this country. He thereby committed the crime of apostasy under Iranian law. 36 The Tribunal, at no stage, addressed the effect that this act of apostasy might have upon the applicant if he were required to return to Iran. It avoided that issue only by finding that he could conceal his apostasy by practising his Christian faith in a discreet manner. S395 establishes that this is the very thing that the applicant is not required to do in order to avoid persecutory harm. The Tribunal's approach to this issue is essentially the same as that which was held to constitute jurisdictional error in that case. 37 In short, Mr Hanks' contentions seem to me to be unanswerable. The Tribunal's decision must be set aside. The matter will be remitted for rehearing and determination according to law. Having regard to the applicant's somewhat extraordinary allegations of bias, which he did not ultimately pursue, it would obviously be preferable if a different Tribunal member were to hear this case. 38 The issue of costs is somewhat complicated. The applicant must pay the costs thrown away by reason of the matter having had to be adjourned on 21 March 2003, at his behest. The applicant must also pay the costs of the hearing on 30 May 2003 when he appeared unrepresented. On that day, he raised the issue of bias, which was ultimately abandoned. Finally, there is the question of the costs of the hearing on 12 December 2003, that being the date on which his former pro bono counsel withdrew from the case. I consider that the applicant should be required to pay those costs as well. The reason that counsel found himself embarrassed, and was forced to withdraw, was plainly connected to the allegations of bias that had previously been made. Those allegations were unfounded and have rightly been abandoned. Accordingly, the applicant will pay the costs of and incidental to the hearings on those three days. However, in accordance with the normal rule that costs follow the event, he is entitled to the costs of and incidental to the hearing on 23 February 2004. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Associate: Dated: 31 March 2004 Counsel for the Applicant: Mr P J Hanks QC with Dr J Beard

Solicitor for the Applicant: Herbert Geer and Rundle

Counsel for the Respondent: Mr R S S Tracey QC with Ms S Moore

Solicitor for the Respondent: Blake Dawson Waldron

Date of Hearing: 21 March, 30 May, 12 December 2003 and 23 February 2004

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