WAHI v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT Introduction 1 The appellant is a 26-year-old single male Iranian citizen of Arab ethnicity and Shia religious background. He arrived in Australia by boat without lawful authority on 27 September 2000. On 12 October 2000 he applied for a protection visa and on 26 October 2000 that application was refused. On 8 November 2000 the appellant applied to the Refugee Review Tribunal ('the Tribunal') for review of the delegate's decision. The Tribunal determined it did not have jurisdiction to review the decision as the application was lodged out of time. It made that determination on 5 February 2001. The appellant applied to the Federal Court for review of that decision and that application was dismissed on 31 July 2001 but an appeal against the dismissal was allowed by the Full Federal Court on 11 February 2002. The matter was then remitted to the Tribunal for determination. On 24 May 2002, the Tribunal affirmed the decision not to grant the appellant a protection visa. The appellant then applied for review of that decision in the Federal Court. The application for judicial review was transferred to the Federal Magistrates Court on 19 July 2002 and on 10 December 2002 his Honour Hartnett FM dismissed the application. The appellant then appealed to the Full Federal Court on 21 January 2003. Pursuant to a direction given by the Chief Justice on 14 March 2003, the appeal was set down for hearing before a single judge. Claims and Evidence 2 In support of his application for a protection visa the appellant said he had worked as a parking attendant at Ahvaz Airport. He had issued a parking fee notice to a senior Iranian official on 17 June 2000. The official was close to Ayatollah Khamenei and Rafsanjani. He claimed subsequently to have been harassed by a pair of Basijis or Revolutionary Police. This made him apprehensive as he had been beaten up and badly injured by Basijis in 1998. He became frightened following a telephone call to his home from a person whom he did not know and told his family what he thought was happening. His father was frightened because his brother, a policeman, had been murdered several months earlier following his arrest of a motor cyclist who had threatened to take revenge on him. 3 According to the appellant, his father arranged for his immediate escape from Iran and following those arrangements he went to Tehran and then to Malaysia and Indonesia and after that by boat to Australia. He asserted that there was no question that if he went back to Iran he would be killed. He would be charged, convicted and executed. He would be charged with spying and with conversion of his religion. He said he had lost faith in Islam and no longer believed in it. 4 In support of his application for review to the Tribunal, the claims the appellant made in respect of the issue of the parking fee notice and its sequelae were repeated and elaborated. The parking incident and what followed it had a particularly frightening perspective because of the background of the appellant's detention and beating by the Basijis in 1998, the murder in February 1999 of the appellant's uncle, an Iranian policeman, and the suffering endured by the appellant's extended family at the hands of the clerical regime for suggested links with the Mojahedin-e-Khalq (MKO). His departure was said to have been facilitated by a false Iraqi passport arranged by his father. He also claimed to have been told, after his arrival in Australia, that an Ettela'at squad had come to the family home for him after his departure. However finding him gone they had detained his father and brother for some months, interrogating and torturing them. His father was released in October 2000 and was sent to hospital because of heart problems. His brother was released a week after his father. The family sent medical certificates to confirm the torture and these were supplied to the Tribunal along with a death certificate of the appellant's uncle. 5 In a supplementary statement the appellant also said he had his 'own reasons' to escape Iran. These included his uncle's death the year before, the treatment handed out to relatives in previous years for their alleged connections to the MKO and his own fear of, and revulsion and aversion to the regime. He said he had anti-religious opinions indirectly expressed at work through his presentation, clothing and conduct. 6 The appellant also said that he is of Arab descent and that Arab speaking people do not have a strong position in Iranian society. They are looked on as foreigners and sometimes even as spies or traitors. They are also sometimes called gypsies. In further written submissions dated 19 March 2002, the appellant's adviser again elaborated upon the claims relating to the car parking fee incident. 7 The adviser informed the Tribunal that the appellant had been baptised as a Christian and would practice Christianity if returned to Iran. While he had not taken on a new religion in Iran there was no evidence to suggest he might not have done so if he had not been forced to leave. She submitted that given the appellant's background there was a real chance of him being persecuted and that his fear of being persecuted was well-founded. She said that for him to be forced to practice Christianity in a low profile way would amount to persecution. She also said that the Arab community in Iran had become aware of the appellant's conversion and that this had displeased the elders. On return he would be publicly denounced giving more reason for the authorities to interrogate and charge him. 8 At the Tribunal hearing on 21 March 2002, the appellant was asked about his religion. He said he was currently a Christian, having been baptised as a Catholic. He told the Tribunal his family are Muslims although not all are practising Muslims. 9 The Tribunal discussed with the appellant his claims of feared persecution because of imputed political opinion and because of his conversion to Christianity. It asked the appellant whether he feared persecution from the Iranian authorities because of his conversion. He said he had not identified this as a source of difficulty with the government. The Tribunal asked if he did not think it would be a source of concern if he went back to Iran. He said his main problem was that an individual from the detention centre went back and talked about his conversion to their Arab community, some members of whom were irate and had gone to talk to his father. He said if he were returned he would certainly end up suffering serious detriment at the hands of the Arab community. He thought his life might be in danger and there was no one to whom he could have recourse. He said he had already suffered some discrimination in the detention centre and was regarded as 'untouchable' and 'dirty'. As far as Iranian authorities were concerned, Islamic law provides the death penalty for apostasy and he feared he would receive that sentence. The Tribunal noted that his adviser in the submission to the Tribunal had suggested that detention and flogging would await him on return if he had converted. He said he had been asked about apostasy but his view might have been closer to his adviser's if he had been asked a general question. 10 In further exchanges between the appellant and the Tribunal about his conversion to Christianity, the appellant told the Tribunal that he had been baptised on 16 September 2001. He promised that his adviser would send the Tribunal a copy of the baptismal certificate. He was questioned about his familiarity with Catholic prayers and rituals. He attended some services on Sundays and some discussions with the priest. The Tribunal asked if he knew about the mass. He referred to the Holy Spirit. He told the Tribunal that he did not know the names of Catholic prayers as they had not been taught the various prayers by their English names. Particular prayers had been translated into Farsi. He said he wanted to continue his interest in and practice of the Catholic faith if he went back to Iran. Asked what attracted him about the Catholic faith, he described it as Christian faith, which promoted simple living and closeness to God and Jesus. 11 The Tribunal referred the appellant to country information from the Canadian government indicating that the Catholic faith is accepted as a minority religion in Iran and that it was even possible for Muslims to attend Catholic services and that if a Muslim wished to convert that was not a problem. The Tribunal asked the appellant whether converts could go about their devotions without being disturbed. He referred them to Islamic law prescribing the death penalty and said some people can do this in secret. However his situation was different as his family and community knew of it and regarded the action as a stain on the extended family. The appellant told the Tribunal that even if apostasy is not a problem he is in extreme danger from his tribe and extended family. 12 The appellant said his parents had cut all ties with him. His family had not complained to police about being harassed as they had no one to complain to and felt they had lost their reputation. The Tribunal indicated that it accepted that the appellant had been baptised but would like to see the baptismal certificate. The appellant's adviser agreed to produce the certificate and indicated that she would also prepare a short statement from a witness about what he had heard from the appellant's father in respect of hostility towards, and threats made to, the appellant's family and against the appellant by their tribe over his conversion. 13 The Tribunal referred to country information including a report dated October 2001 from the US State Department's Bureau of Democracy, Human Rights and Labour. That report referred to restrictions on religious freedom in Iran. It observed, inter alia, that the government is highly suspicious of any proselytising of Muslims by non-Muslims and that it could be harsh in its response in particular against Baha'is and Evangelical Christians. It also observed that the government does not ensure the right of citizens to change or renounce their religious faith. The report said: 'Apostasy, specifically conversion from Islam, can be punishable by death.' 14 In a text edited by K Boyle and J Sheen entitled Freedom and Belief - A World Report [1997] and the chapter 'Iran", it was said: 'The biggest community among Iran's non-Muslim religions is formed of Christians of the Armenian Apostolic (or Catholic) Church, of great antiquity. Informed Armenians say that, as a whole, their community numbers about 150,000, mainly concentrated in the large cities such as Tehran, Isfahan, Urmieh and Tabriz. A small fraction have in recent years converted to various Protestant denominations. 'Assyrian' Christians are divided into two branches, the (Catholic) Chaldeans and the (Orthodox) Assyrian Church of the East. They number up to 50,000, according to their own spokesmen, and are concentrated in Tehran and around the western city of Urmieh, where many of them are farmers. Mainstream Roman Catholics, adherents of the Episcopal Church of Jerusalem and the Middle East (Anglicans), and several small evangelical Protestant churches make up the rest of the Christian community of 250,000 people.' 15 A country profile from the Department of Foreign Affairs and Trade dated March 1996 was also cited to the effect that Iranians who had based asylum applications on their conversion from Islam to Christianity would in almost all cases not suffer particular problems if returned, unless they declared their new religious affiliation to the authorities. Apostasy was widely reported as carrying a nominal death sentence. However, there were only one or two cases of high profile Christian clergy where the sentence had ever been imposed. The evidence, according to the DFAT report, was that those converts who went about their devotions quietly are generally not disturbed. Those who actively seek attention or are engaged in conspicuous proselytization have run into difficulties usually with the local Mosque rather than State authorities. Another DFAT report of 11 January 1996, apparently originating from the UNHCR, was quoted: 'There are no codified laws or regulations regarding conversion. However, according to Article 29 of the Law on the Establishment of Penal Courts & Supreme Court Branches, ratified in 1989, courts have the obligation to rule on the basis of codified laws, and in the absence of such laws, they should refer to valid religious sources (Shari'at) or valid fatwas (religious opinions pronounced by sources of emulation). In relation to conversion from Islam, Shari'at (Islamic law) is quite clear. Converted Muslims are considered apostates, and conversion from Islam is punishable with death. However, as to the prescribed punishment, a distinction is made. Those born from Muslim parents (even if only one of them is a Muslim), shall be executed. Those born from non-Muslim parents who had converted to Islam and have converted again to another religion, shall first be invited to repent. In the event they refuse, they shall be executed. In connection with women, it appears that death penalty is not applied and they shall be imprisoned and lashed at each prayer. In practice, there have been some executions especially in the early years after the establishment of the Islamic regime. However, as to the practice of the recent years, a distinction has to be made. Those who convert without making it publicly known and who keep a low profile, are not subjected to harassment, however, those who convert and who publicly practice their new faith, can be subjected to harassment. The said harassment may entail violation of their socio-economic rights, but normally does not entail execution. As to those Muslims who convert to Christianity and become priests, owing to the fact that they propagate another religion and become agents of conversion, their conversion is punishable with death. Two such cases have been reported in 1994.' The Tribunal's Findings and Reasons 16 The Tribunal found that the appellant's claims were dependent upon many assumptions regarding incidents and events that were highly inconclusive. The appellant's former adviser had stated in written submissions on 18 January 2001 that the appellant fled Iran because of fears that he 'could be in serious trouble'. The current adviser's post-hearing submissions dated 22 March 2002 indicated a higher degree of uncertainty in describing the foundation of his fear of persecution. 17 The Tribunal, for reasons which it set out, was satisfied that the appellant was not credible in respect of certain key aspects of his claim for protection. He did not impress 'in his demeanour and responses' in evidence on those elements of his claims and did not convince the Tribunal that he is a young man who had to leave Iran in the circumstances he had described. 18 The Tribunal accepted that Iran is a country in which human rights are frequently and seriously breached by the State and that it is governed by a ruthless clerical leadership that resorts to any measures to achieve its political and religious objectives which are closely intertwined. The leadership maintains its power through a number of means including complete control over the judiciary, army and security agencies, the latter including the Religious or Morals Police Force known as the Basij whose purpose, as the Tribunal found, is inter alia to instil fear in the populace to comply with Islamic behaviour and practice and to give support to the Islamic leadership. 19 The Tribunal accepted that the appellant's cousins and his policeman uncle suffered 'unfortunate and unjust experiences, at the hands of the Basij and the Iranian authorities'. It was not satisfied, however, on the appellant's evidence and the country information, that the appellant or his family in Ahvaz were of adverse interest to the Iranian authorities by reason of any actual or imputed political opinion, particularly any imputed association or sympathy with the MKO before or after the parking fee incident. The Tribunal was not impressed with the appellant's lack of candour in acknowledging the limited relevance to his own claims of his extended family's troubles with the authorities. It did not consider that the bashing he received from a Basij street patrol in 1998 for allegedly following a girl was of direct relevance to his claims other than to demonstrate that the authorities were capable of and resorted too readily to harsh and repressive measures at will, and that the appellant had developed a fear of them for good reason. Although it was possible that the Basij or other intelligence agencies would have kept a record of that incident, it would not be a factor of particular significance to them if they were called upon to deal with an insult to a senior official or the Islamic leadership which is a very serious matter. 20 The Tribunal was satisfied on the appellant's information and the country information available that Iranian authorities did not need to have an excuse or reason to assault, punish, detain or dispose of anyone not seen to be supportive of the regime or any one who may have intentionally or unintentionally offended the Islamic regime or one of its senior officials. Although the Tribunal considered that the appellant feared the Iranian security authorities, he did not live his daily life in abject fear of them. He presented to the Tribunal 'as a confident young man who knew his job very well and his rights and was capable of presenting his views firmly'. 21 The Tribunal accepted the appellant's account of the incident involving the issue of a parking fee notice to a senior government official. It accepted that the official had given him a 'threatening' look. It was satisfied however that the remainder of the appellant's claims concerning the incident had been manufactured. It did not accept that the appellant was visited on the evening of the incident by two men on a motorbike or that there had been telephone calls for him at home from someone he did not know. It did not accept his alleged sighting two days later of suspected Basij members sitting in a white car near where he used to catch taxis. Nor did it accept the raid on his parents' home and the assault on his father and brother and their detention. 22 In respect of the appellant's conversion to Christianity, the appellant had testified that he was concerned with the reaction of his Arab community to that conversion and, it appeared to the Tribunal, to a lesser degree, the reaction of the Iranian authorities. The Tribunal found that he could reasonably relocate to live safely in Tehran without returning to Ahvaz where he would be more likely to face possible criminal harm from the community and indeed from his relatives. The Tribunal took into account his intelligence, maturity, education and work skills and the fact he is single and without dependants. It found that his Arab ethnicity would not be a cause of concern for him in a city as large as Tehran and that he would be able to successfully avoid family and tribe members. 23 The Tribunal accepted the appellant's evidence that he had been baptised into the Catholic Church following an interest he developed in Catholicism while in detention in Australia. It formed the impression during the hearing and concluded that he was not very well informed or dedicated to the new religion and did not show a comfortable familiarity with Catholic rituals and prayers. It accepted that he had an interest in pursuing the practice of his faith if he returned to Iran and that he would do so. It did not accept that he would declare his new religious affiliation to the authorities on his return to Iran or practise his faith in other than a low profile manner as he was aware of the danger of attracting attention from the Basij. The Tribunal was satisfied that the appellant would act discreetly in practising his new faith. 24 It also accepted, on the country information, that Christians in Iran experience harassment, discrimination and worse depending on their particular faith, their manner of practice of it, the extent to which they attract the attention of the authorities or are perceived to threaten Islam, their location and other circumstances. Christians are adversely affected in the amount of freedom they have to practice their faith in employment, education and the operation of the legal system. However there was no evidence before the Tribunal of low profile apostates attracting penalties of any kind in Iran. If the appellant returned to Iran and joined the officially accepted Roman Catholic community there was no reason to believe that he would be at risk of harm or harassment by doing so. Nor did the Tribunal accept that he would be at risk of being considered a proselytiser simply by virtue of being a member of that community. It may also be noted that the Tribunal did not consider that the appellant had converted to Catholicism in order to strengthen his application for protection. It also found no reason to believe that he left Iran other than legally and on his own passport. It found the country information to indicate that Iranian asylum seekers who have exhausted all legal avenues can return to Iran. Even if they do not hold Iranian documents and cannot prove they left Iran legally in the past, a small fine only is imposed. The Tribunal was not satisfied that any harm amounted to persecution under the Convention would befall the appellant for this reason on his return to Iran. The Tribunal held that in the circumstances it was not satisfied that the appellant had a well-founded fear of persecution under the Convention. The Judgment of the Federal Magistrate's Court 25 His Honour Hartnett FM gave an ex tempore judgment dismissing the application for judicial review of the Tribunal's decision. He reviewed the Tribunal's findings and then observed that the Court was not engaged in merits review. He described the court's function as limited to determining whether or not the Tribunal exercised in a bona fide manner the jurisdiction given to it. At that point, he was bound to apply NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449, having regard to that authority and its analysis in the judgment of Sackville in Zahid v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1108. 26 The first question that his Honour posed for himself in the light of those judgments was whether the Tribunal had acted bona fide. He held there was clearly no lack of bona fides on the part of the Tribunal. There was nothing in the record of its decision that was indicative of the Tribunal making its decision irresponsibly. Secondly he held that the Tribunal's decision clearly related to the subject matter of the legislation and thirdly that it was reasonably capable of reference to the power given to the Tribunal by the Act. He observed that the application for review did not identify any requirements or limitations on the exercise of the power by the Tribunal that it had not complied with and which, notwithstanding the terms of effect of s 474, would be essential to a valid decision. 27 The learned magistrate dismissed the application with costs. Grounds of Appeal 28 The amended notice of appeal set out the following two grounds: '(a) The learned Federal Magistrate erred in law in finding that the Tribunal did not commit error of law going to jurisdiction in finding that the appellant would, as a "low profile apostate" not attract penalties of any kind in Iran, and that the appellant had no reason to believe he would be at risk of harm. In making the assertion, the Tribunal was making the assumption, without discussing evidence, that Christianity (Catholic denomination) could be practised "low profile", and the Tribunal declined, in that assertion, to discuss the special position of the appellant as apostate, to which the appellant had referred at length. (b) The learned Federal Magistrate erred in law in finding that the Tribunal did not commit error of law going to jurisdiction in finding that the appellant could safely relocate to Teheran, without there being any evidence to support that assertion.' Ground of Appeal (a) - The Tribunal's Approach to the Appellant's Religious Conversion 29 The first ground of appeal raised the contention that the Tribunal had made a jurisdictional error in holding that the appellant would not be at risk of persecution by reason of his conversion to Catholicism. In this connection it is appropriate to bear in mind the key findings of the Tribunal: 1. The appellant had converted from Islam to Catholicism while in detention in Australia. 2. The appellant will pursue the practice of his faith if he returns to Iran but will do so discreetly. 3. There is no evidence of low profile apostates attracting persecution of any kind in Iran. 4. There is no reason to believe that the appellant would be at risk of harm or harassment if he were to join the officially accepted Roman Catholic community in Iran. 5. The appellant would not be at risk of being considered a proselytiser. 30 The formulation of the claimed jurisdictional error was initially elusive. Counsel argued that the Tribunal had somehow elided the consequences of low profile apostasy and those of conversion. He submitted that there was no evidence to allow the Tribunal simply to assert that as a low level practising Catholic the appellant would not attract peer persecution on the ground of religion. It was put to counsel by the Court that on this ground he appeared simply to be agitating questions of fact decided adversely to the appellant by the Tribunal. Counsel responded that his submission was that the appellant had made his claim based upon 'his anticipated jeopardy as an apostate'. The Tribunal had asked itself the wrong question because it asked whether he would have a well-founded fear of persecution '… if he's low profile and an apostate'. The appellant, it was said, had been very clear that whether he was low level or not was 'absolutely immaterial to his anticipated fate in Iran'. 31 The jurisdictional error which counsel sought to invoke was described eventually as 'a failure to address the question accurately'. The low profile which the Tribunal had prospectively attributed to the appellant was said not to exist because his conversion was known to his family and to his community. It is to be noted of course that the Tribunal considered that risk when it looked at the possibility of relocation. It found that the appellant could reasonably relocate to live in Tehran without returning to Ahvaz. It did not however expressly address the possibility that, if it were known to his family and the Arab community in Ahvaz, the appellant's conversion could, on that account or otherwise, become known to Iranian authorities and that a risk of persecution could arise from such knowledge. 32 Counsel for the appellant referred to the decision of the Federal Court of the Federal Court in SGKB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 44. That was a case which related to a Tribunal decision made at a time when the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) had not been passed. The grounds for review were therefore those available under s 476 as it stood in March 2001. The Tribunal in that case was held to be in error in the way it dealt with whether the applicant had a well-founded fear of persecution on account of his conversion to Christianity from Islam. Nevertheless it would seem that the decision in that case turned upon characterisation of the Tribunal's error as jurisdictional in the sense that it had failed to properly address the question whether the applicant for review before it had a well-founded fear of persecution for a Convention reason. 33 The Tribunal was said, in the Full Court, first to have considered only the consequences of a possible declaration of conversion by the applicant and not to have considered the consequences if the authorities were to become aware of his conversion in some other way (at [20]). Secondly, the Tribunal had not considered the seriousness of the consequences to the applicant in that case of his conversion becoming known to the authorities (at [21]). It ought to have considered whether the mere possibility of a death sentence, regardless of how remote that possibility might be, could itself constitute persecution (at [21]). It should also have considered whether the risk of losing the opportunity of government employment was sufficient to constitute persecution (par [21]). 34 Thirdly, the Tribunal did not consider whether the applicant had a well-founded fear of persecution but whether or not it was likely that he would suffer persecution.