FEDERAL COURT OF AUSTRALIA

"O" v Minister for Immigration & Multicultural Affairs [1999] FCA 1405

MIGRATION – application for review of Refugee Review Tribunal decision refusing grant of a protection visa – whether procedures required to be observed by the Tribunal in accordance with s 430 and s 476(1)(a) of the Migration Act 1958 (Cth) were observed – whether the Tribunal erred by basing its decision on a fact that did not exist.

Migration Act 1958 (Cth) ss 430, 476(1)(a)

Baljit Kaur Singh & Ors v Minister for Immigration and Multicultural Affairs

[1999] FCA 1126, cited

"O"  v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 680 of 1999

MOORE J

14 OCTOBER 1999

SYDNEY

THE COURT ORDERS THAT:

1.         The application is dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1                     The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 12 July 1999, which affirmed a decision of the Department of Immigration and Multicultural Affairs (“the Department”) to refuse to grant him a protection visa.

2                     The applicant is a young man who is a Kurdish Iranian. He arrived in Australia without a passport and has since been held in detention.  On 10 May 1999 the applicant applied for a protection visa and on 28 May 1999 a delegate of the Department refused the application.  On 31 May 1999, the applicant sought review by the Tribunal of the decision of the delegate.  The applicant now applies to this Court for judicial review of the decision of the Tribunal.

3                     Section 36(2) of the Migration Act 1958 (Cth)(“the Act”) provides that a criterion for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the 1951 Refugees Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (together hereafter referred to as "the Convention").

4                     Article 1A(2) of the Convention defines a refugee as any person who:

“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…”

Background

5                     As will be apparent shortly the issues raised in this application for judicial review are narrow in compass.  Accordingly it is unnecessary to set out in great detail the basis upon which the applicant claimed to be a refugee.  The essence of his claim was that he was a Kurdish Iranian whose uncle had been executed for belonging to the Kurdish Democratic Party of Iran which was an organisation to which he had been making donations.  The Tribunal did not accept this aspect of the applicant’s account.  The Tribunal did accept, however, that the applicant’s father had worked for the SAVAK which was a secret police force of the Shah of Iran.  It also accepted that in 1978 the applicant’s father had shot and killed a son of a religious leader and in 1985 his father was arrested and imprisoned for eight years.  It was accepted that his father’s experiences had certain adverse consequences for the applicant.   The Tribunal also accepted the applicant was a Christian who had converted from the Islamic faith.  The Tribunal had before it information derived from the Department of Foreign Affairs and Trade as well as a US Department of State Report: Iran Country Report on Human Rights Practices for 1998 (“the 1998 State Department Report”) which, amongst other things, discussed the position of Christians in Iran. 

Grounds of Review

6                     The grounds of review identified in the amended application were:

“1.       Procedures that were required by the Migration Act 1958 to be observed in connection with the making of the decision were not observed in that the Tribunal failed to produce a statement in accordance with s 430[s 476(1)(a)].

Particulars

(1)        The Tribunal erred by failing to deal with the Applicant’s submissions and evidence to the effect that he could not relocate to another place in Iran because the authorities would eventually learn of his family’s connection with the Shah’s regime and resume their harassment of him.

            (2)        The US State Department report cited by the Tribunal referred to the disappearance of Muslim converts to Christianity, when the authorities learnt of their baptism, to frequent charges of apostasy and to the fact that converts suffer discrimination and may be punished by death.  This was a recent report from a reliable authority and was of obvious relevance to the Applicant’s case.  The Tribunal erred by failing to address the claims made in this report. 

2          The Tribunal erred by basing its decision on a fact that did not exist [s.476(1)(g) & 4(b)].

Particulars

            The Tribunal found that the US State Department report it cited indicated that Muslim converts to Christianity are legally permitted to practice their religion in Iran.  The report did not indicate that they could do so.  On the contrary, it indicated that those that did so were persecuted, often prosecuted, sometimes disappeared and were liable to be punished by death. 

3.         The decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found.

Particulars

            The Tribunal erred in failing to consider whether the Applicant’s [sic] had a genuine fear of persecution arising out of the radio interview and, if he did, whether it was well founded.” 

Conclusions

7                     Ground three concerned a radio interview given by the applicant when in Australia.  The submissions made by counsel for the applicant on this ground were formal only.  I understood counsel for the applicant to accept that I would be bound to apply the decision of the Full Court in Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 notwithstanding observations of Lee J in Mohammed v Minister for Immigration and Multicultural Affairs [1999] FCA 868 that counsel for the applicant thought might support the ground. 

8                     Ground one raises for consideration the nature of the duty imposed by s 430 of the Act.  It is unnecessary to discuss various authorities of the court which may, on one view, manifest a difference of opinion about the contents of that duty.  They have comparatively recently been considered by Drummond J in Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 1126 and Mansfield J in Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 1234.  The contents of that duty were described by Drummond J in Singh (supra) as being that:

“the Tribunal [has] to explain why it has rejected apparently probative material relevant to a material issue even though there may be sufficient or indeed even an abundance of material the other way to support the conclusion on that issue that the Tribunal, in fact, reached”.

9                     The first particular of a failure to perform the duty imposed by s 430 concerned the applicant’s case in relation to relocation.  The Tribunal had accepted that the applicant had been subjected to harassment in the small town in which he lived.  The applicant’s case on the question of relocation was set out in a letter dated 28 June 1999 from his solicitors to the Deputy Registrar of the Tribunal.  The letter said in part:

“It is submitted that there is no part of the country in which protection is available to the Applicant.  How is the Applicant to get protection anywhere in Iran.  The Iranian system is not in chaos, it is closely regulated at all levels of society”.

The same proposition was advanced by the applicant in a statement submitted with that letter.  His statement read in part:

“I can’t relocate to another part of Iran because if you move to one place people and authorities identify you and persecution continues”.

10                  From a reading of the Tribunal’s decision as a whole, it is apparent that the Tribunal formed the view that the applicant had left Iran legally and not irregularly.  The Tribunal concluded that had the applicant been of interest to the authorities he would not have been able to depart in this way.  On the issue of relocation the Tribunal said:

“I am prepared to accept that, if the Applicant returns to Iran now or in the foreseeable future, he may continue to face some prejudice on the part of the local authorities in his home town as a result of his father’s past history as a SAVAK agent.   However I consider that it would be reasonable in these circumstances to expect the Applicant to relocate to some other part of Iran, for example to Tehran, where he has his maternal uncle who has apparently been prepared to assist him in the past.”

11                  In my opinion the Tribunal has dealt adequately with and in conformity with s 430 the claim of the applicant that he could not relocate.  The clear import of the Tribunal’s decision is that the applicant was contending that he would be of interest because of his family background were he to relocate.  The Tribunal found, as it was entitled to, that he was not of interest generally and any interest in him derived from knowledge within the local community of his father’s history. 

12                  The second particular identified in this ground concerned the way in which the Tribunal in its decision dealt with the 1998 State Department Report.  Counsel for the applicant referred to the observations of Wilcox J in Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 27 and 31.   Reference was also made to the joint judgment of Wilcox and Lindgren JJ in Logenthiran v Minister for Immigration and Multicultural Affairs  [1998] FCA 1691.  Both judgments concern an inadequate consideration by the Tribunal of independent country information which had a material bearing on the claims of an applicant for a protection visa.  In the present case the consideration of this material by the Tribunal does not, in my opinion, manifest a failure to perform the duty imposed by s 430. 

13                  It may be accepted that at various points the 1998 US State Department report addresses the position of Christians in Iran.  It makes clear that in certain contexts, Christians are exposed to serious harassment and refers to a report that had been received that between fifteen and twenty two Iranian Christians, who were reportedly Muslim converts, had disappeared during 1997 and the first half of 1998.  The Tribunal referred to the 1998 State Department Report and parts of it which had dealt with the position of Christians in Iran and specific reference was made to that part of the report which spoke of the disappearance of Christian Muslim converts.  However it is relatively clear that the Tribunal balanced the views expressed in this report with those evident in material provided by the Department of Foreign Affairs and Trade.  The Tribunal noted that it had indicated in the hearing that it “place(d) considerable weight on the information gleaned from a visit by a delegation from a Western country to an Assemblies of God church in Tehran in 1996”.  The source of information about that visit was a 1996 report from the Department of Foreign Affairs and Trade.  In my opinion, the Tribunal sufficiently explained how it dealt with the material in the 1998 State Department Report when considering that report along with other independent country information before it.  The Tribunal’s ultimate view was the degree of harassment the applicant might suffer because of his Christian faith would not constitute persecution.  That conclusion was based in part on a rational consideration of the 1998 State Department Report.

14                  Ground two of the amended application raises a specific matter emerging from the 1998 State Department Report.  In its reasons the Tribunal said:  

“However the US State Department report quoted above indicates that Christians (including Muslim converts) are legally permitted to practise their religion in Iran and …”

15                  Counsel for the applicant submitted that this statement constitutes a finding of fact (that the report states a particular proposition) and the decision of the Tribunal was based on that fact, and the fact did not exist.  I presently assume that this is a fact of the type to which s 476(1)(g) and 4(b) of the Act are directed and also assume the decision of the Tribunal was based on the existence of that fact (but see T v Minister for Immigration and Multicultural Affairs [1999] FCA 878).  The applicant has not demonstrated that this fact does not exist.  In the 1998 US State Department Report the following appears:

“(The constitution) recognizes Jews, Christians, and Zoroastrians as “protected religious minorities” … Christians, Jews, and Zoroastrians legally are permitted to practise their religion and instruct their children, but may not proselytize Muslims”.

16                  It is comparatively plain from these passages that the report does indicate that Christians, including Muslim converts, are legally permitted to practice their religion.  It is true that the report elsewhere speaks of the harassment of Christians and states that apostasy, or conversion from Islam to another religion, may be punishable by death.  However, the statement of the Tribunal, limited as it is to what is legally permissible, does reflect what is said in the report.  Accordingly this ground of review is not made out. 

17                  I dismiss the application with costs.

Associate:

Dated:              14 October 1999