FEDERAL COURT OF AUSTRALIA

Farajvand v Minister for Immigration and Multicultural Affairs [2001] FCA 795

MIGRATION – application for order of review of decision of Refugee Review Tribunal to affirm decision of delegate of Minister not to grant a protection visa – claim of sur place fear of persecution for reasons of religion – error of law by Tribunal in interpretation and application of law to facts as found – alternatively jurisdictional error – application allowed

Migration Act 1958 (Cth) ss 476(1)(e), 476(1)(b)

Minister for Immigration and Multicultural Affairs v Zheng [2000] FCA 50 referred to

Wang v Minister for Immigration and Multicultural Affairs (2000) 179 ALR 1 followed

Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to

Chen Shi Hai v Minister for Immigration and Multicultural Affairs (1999-2000) 201 CLR 293 referred to

Craig v South Australia (1995) 184 CLR 163 referred to

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 applied

JAFAR FARAJVAND v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N591 of 2001

JUDGE:          ALLSOP J

DATE:            20 JUNE 2001

PLACE:          SYDNEY

THE COURT ORDERS THAT:

(1)        The application is allowed and the decision of the Refugee Review Tribunal under review made on 10 April 2001 affirming the decision of the delegate of the Minister made on 31 January 2001 be set aside.

(2)        The matter be remitted to the Tribunal differently constituted for further consideration according to law.

(3)               The respondent pay the applicant's costs.

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

REASONS FOR JUDGMENT (delivered orally and revised)

1                     In this matter I heard argument this morning after receiving written submissions from both parties.  I have been able to deal with the matter this afternoon in significant part because of the quality of the assistance which I have received from both parties, for which I am grateful.

2                     This is an application for an order for review by the Court of a decision of the Refugee Review Tribunal (to which I will refer as the Tribunal), made on 10 April 2001, affirming the decision of a delegate of the respondent Minister, made on 31 January 2001, not to grant to the applicant a protection visa under the Migration Act 1958 (the Act).

3                     The applicant is a 31 year old male national of Iran.  He arrived in Australia without a visa by boat on 9 November 2000, whereupon he was held in immigration detention in Derby, Western Australia, where he has remained.  On 26 November 2000 the applicant applied for a protection visa under the Act and the Migration Regulations (class AZ, sub-class 866).  Accompanying that application was a signed statement taken from the applicant and prepared on his behalf by a migration agent, dated 24 November 2000.

4                     The applicant was interviewed by a delegate of the respondent on 2 December 2000.  On 31 January 2001 the delegate refused to grant the visa and, by letter of that date enclosing reasons for the decision, informed the applicant of the refusal.  The reasons reflected a decision by the delegate that the applicant was not a person to whom Australia owed protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York in 1967 (which I will refer to together as the Convention).

5                     On 2 February 2001 the applicant applied to the Tribunal for review.  A written submission to the Tribunal was made on the applicant's behalf on 21 March 2001.  On 27 March 2001 a hearing was held before the Tribunal.  At the hearing the applicant gave evidence and two witnesses also appeared and gave evidence in support of the applicant's claims.  On 10 April 2001 the Tribunal handed down its decision affirming the decision of the respondent's delegate to the effect that the applicant was not entitled to a protection visa.  It is this decision in respect of which the applicant now seeks review by an application to the Court dated 11 May 2001.

6                     Before the Tribunal, and by written submissions, the applicant claimed that he had a fear of persecution by reason of his religion should he be returned to Iran.

7                     The Tribunal's reasons commence by noting that the Tribunal had before it the record of the interview conducted by departmental officials soon after the applicant's arrival in Australia, the record of subsequent interview by the delegate who had decided the applicant's application for a protection visa, a complete protection visa application form itself, along with another form (Form 80), and written statements and submissions submitted by or on behalf of the applicant.

8                     The Tribunal noted that the applicant had given sworn oral evidence before it, as had two witnesses to whom I shall refer to, as the Tribunal did, as Masoud and Davood.  The Tribunal also had before it a letter in support of the applicant's claims from a Reverend Andrew Watts, a minister in the Kimberley Uniting Church, and, as appears from the reasons for the decision, the Tribunal also had before it, or had access to, material being referred to as ‘country information’.

9                     The Tribunal's reasons then recount what it saw as the applicant's case before it.  I propose to set this out in a little detail, because in fairness to the submissions of Mr Markus on behalf of the Minister, it is important to understand the breadth of the case that was in large part rejected by the Tribunal.  I propose to set the applicant’s claims out in sub-paragraphs as follows:

(a)        The applicant was born and lived in Tehran, Iran.  After completing 13 years of education in 1987, the applicant undertook military service between 1987 and 1989.  He then became a self-employed trader, travelling between Iran and various Asian countries, where he lived for prolonged periods between 1989 and 1998 before returning to Iran in December 1998, in order to become a shopkeeper.  The applicant remained in Iran until November 1999 when he left Iran and went to Indonesia, where he had stayed until he left for Australia some time in late 2000.

(b)        The applicant was raised as a Shia Muslim, but he was not devout.  He became fed up with Islam, and became attracted to Christianity.  Just before his last departure from Iran in 1999, he had lost interest in Islam.  He had met a Christian by the name of Rubic, and they had discussed Christianity.  Rubic was a business colleague, a wholesale dealer, and the applicant told the Tribunal that Rubic was a Protestant.  By about mid-1999 Rubic had excited the applicant's interest in Christianity.  The applicant went to five or so meetings, and visited Rubic's house twice.  He did not go to church because Rubic had warned him that it was dangerous to do so.  However, Rubic had pointed out the Protestant church in Tehran, which looked like a house.

(c)        On the second occasion that he went to Rubic's house, the applicant met another person whom he believed had had some trouble with the Iranian authorities.  He initially identified the man as Esmaiel, but had told the delegate and the Tribunal that he could not recall who the man was.  On that occasion they had been speaking for some 20 minutes when two officials entered the house and indicated that they were going to arrest the occupants.  The security officials did not say anything other than to tell the men not to speak.  They searched the house.  Initially the applicant had indicated that Esmaiel had pushed one of the men, allowing the applicant to escape.  At the hearing before the Tribunal, the applicant had said that the three men were taken into a car, and were being taken elsewhere when the applicant managed to escape.  On being questioned by the Tribunal, the applicant said that he had escaped while being taken to the car.

(d)        After his escape the applicant did not go home.  He contacted his brother, who advised him to stay in hiding with another relative.  The applicant told the Tribunal this was the first time he had disclosed to anyone other than the people he met through Rubic that he was a Christian.  Three days later he was informed that officials had come to his family home pretending to be friends, and had asked his mother about him.  He thought that they may have wanted him in connection with Esmaiel, and because of his (the applicant's) tendency towards Christianity.  He had also heard from his brother that Rubic was not to be found and that Rubic's business had been closed.

(e)                At the hearing before the Tribunal the applicant read a letter from his brother dated 22 February 2001.  This letter warned the applicant not to return and definitely not to attempt to contact Rubic as the telephone was being monitored.  His brother wrote that he had visited Rubic's business several times but it was closed up.  He also wrote that their father had been detained and interrogated about the applicant's Christianity.  I interpolate here that on my construction of the reasons of the Tribunal he, that is the brother, also wrote that their father had disowned the applicant and vowed to turn him over to the authorities if he returned to Iran.  The applicant did not know what happened to Rubic and Esmaiel.  (The reason for the interpolation, I should add, is that Mr Karp made a submission that there was a factual matter not dealt with by the Tribunal, being the fact of the father disowning the applicant and vowing to turn him over to the authorities.  I think, with respect to Mr Karp's submissions which were otherwise careful and comprehensive as well as frank, that he has misread the Tribunal’s reasons.  I think that that matter, properly understood in the context of the reasons, is contained in the letter from the brother which the Tribunal did deal with.  It found that the letter had been in effect fabricated.  Therefore, interpolating at this point I think there is no substance to that complaint of the applicant.)

(f)         The applicant had claimed that his passport was confiscated when he returned to Iran in March 1998.  He said that he did not know the reason that it was confiscated but agreed with the Tribunal that it was about to expire.  He told the Tribunal that he was directed to report to a government office regarding his passport but did not do anything about this as he intended to remain in Iran permanently and never wanted to leave again.  He explained that he was financially well off and wanted to marry and remain in Iran.  When he escaped after the incident at Rubic's house he was so afraid that he did not try to obtain a new passport but used the money that he had, along with some from his brother, to escape across the border.  He told the Tribunal that he had to escape quickly because he had been identified as a convert to Christianity.  He was helped by people smugglers to reach West Timor, Indonesia,  via Turkey, Malaysia and the Indonesian cities of Jakarta and Surabaya.  He stayed for several months in both Jakarta and West Timor and in the other places for about a week or so.  He had been given a false passport to cross the Turkish border, after which the false passport was retrieved by the smugglers.

(g)        In West Timor he had mixed with some Christians and was baptised into a Protestant church in August 2000 in Kupang.  He told the Tribunal that he went to church every week and he actively recruited other people in Kupang to the church.  He would tell them of the faults of Islam in order to prepare them to accept Jesus Christ.  At one stage he was arrested in Kupang and interviewed by local officials of an office of migration.  However, he was not registered with the United Nations High Commission for Refugees.  He said that he had bribed the police that had arrested him and so was not sent to Jakarta with the other Iranians who were at that time arrested.

(h)        The applicant stated that in his present state of detention he goes to meetings with Reverend Watts when the latter comes to the detention centre, otherwise he goes to prayer meetings on Sundays and meets with other Christians or interested people every couple of days, when he attempts to recruit others to the church.  He explained to the Tribunal that it was easy to recruit non-believers but that Muslims needed first to be “convinced of the evils of Islam, such as terrorism, stoning people and so on”.  He had recently converted a couple of fellow detainees and Reverend Watts had told him that these persons would be readied for baptism.

(i)         The Tribunal noted the letter before it from Reverend Watts.  It noted that Reverend Watts had written that he believed the applicant to be a genuine Christian and accepted his baptism.  He said that the applicant had attended services when Reverend Watts was at the detention centre and how the applicant would usually sit down with Reverend Watts to ask questions on Christianity in order to help him understand more.  The Tribunal quoted what Reverend Watts had written in the letter as to how "as a natural consequence of the joy he feels as a Christian [the applicant] likes to be able to tell Muslim people he knows about Christianity particularly if they are showing an interest.  He told me that he does this at [the detention centre].  It seems that he cannot resist sharing his faith with others".

(j)         The Tribunal then discussed, as part of the claims of the applicant, the two witnesses and their evidence.  Masoud had told the Tribunal that he had met the applicant in Kupang and had noticed that he was active in the church and in criticising Islam in order to recruit people to the church.  He said that some Iranians who had returned to Iran had informed on the applicant and, apparently, would have possession of photographs of his baptism and conversion.  Masoud had provided a written statement in which he said that there were some 51 people under the control of the local immigration authorities in Kupang, including some Iranians.  These people had witnessed Masoud's own conversion and some of them had come into conflict with Masoud and other converts.  When these persons had returned to Iran they had, when first interrogated upon arrival, informed the authorities of Masoud's conversion.  Masoud knew of this as the information had been passed back to him by his family from one of his friends, who was present at that first interrogation.

(k)        The other witness, Davood, said that he knew the applicant in Kupang, that the applicant was prominent in the church and consistently recruited other people into Christianity.  He said that he, Davood, was among the people detained by local authorities and sent to Jakarta where he was chosen as a spokesperson to speak with the Iranian authorities there.  He said that the Iranian Ambassador had had on that occasion a list of people whom he had asked Davood about.  He had asked about the applicant; however, Davood had said that he did not know him.  The point to be made, interpolated the Tribunal, was that the Ambassador had had sufficient interest in the applicant to make inquiries about him.  Davood stated that at the detention centre (in Australia) the applicant encouraged people to become Christian and was critical of Islam although he, Davood, remained circumspect because he feared the reaction of other detainees.

(l)         Finally, the Tribunal summarised the applicant's case by saying the applicant had said that he had no difficulties with the authorities in Iran until 1999, that he was not politically active, that he feared he would be executed as an apostate and convert to Christianity.  The Tribunal noted that the applicant had stated that his conversion was known and that he was highly critical of Islam and its use by Iranian authorities to suppress citizens in Iran.  He said that he would continue to voice his opinions if he returned to Iran.  He said his fears were exacerbated because he had left Iran illegally and now applied for asylum in Australia.

10                  It can be seen from the above that the applicant’s claims were made at various levels of factual layer.  They included a fear of the consequences of his conversion and apostasy being publicly known and the public knowledge of his new religion.  In saying that, I should not be taken to be underplaying the extent of the fears the applicant said he had from matters that had occurred in Iran prior to his arrival in Indonesia and from his express desire to criticise Islam if he went back to Iran.  I say this for reasons which will become evident in a moment.

11                  The Tribunal then set out under the heading "Legislative Framework" what it considered to be the applicable law.  After noting the relationship between ss 36(2) and 65(1) of the Act (with parts 785 and 866 of Schedule 2 to the Regulations), the Tribunal made reference to various High Court authorities that have dealt with the definition of persons to whom Australia owes protection obligations under the Convention.  In particular, the Tribunal noted what it understood as the "real chance of persecution" test: that the Convention term "well-founded fear of persecution" required that an applicant have a subjective fear of persecution and that there be an objective justification or foundation for this fear; that such fear of persecution would be well-founded if there is a real chance (being a chance that was "substantial" as distinct from "remote", "insubstantial" or "far fetched") of persecution upon return to the country of nationality.  The Tribunal referred to Chan Ye Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 "as elaborated in" Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.  The Tribunal devoted particular attention to what it understood to be the prospective nature of the assessment of the existence of a well-founded fear of persecution, referring to Mok Gek Bouy v Minister for Immigration, Local Government and Ethnic Affairs (1993) 47 FCR 1 and Minister for Immigration, Local Government and Ethnic Affairs v Mok Gek Bouy (1994) 127 ALR 223.

12                  While not by any means an exhaustive statement of the applicable law, the Tribunal made, in my view, no particular error in its recitation of the limited set of principles to which it chose to make reference.  I say limited set of principles because importantly, I think, it indicated no express consideration of, and familiarity with, decisions concerning the nature of religion as a Convention term and the relationship between that term and the notion of persecution inherent within the composite phrase within the Convention in Article 1A(2).  In the light of the detailed reference to authority made by the Tribunal, but recognising that the Tribunal does not have a burden to refer to all cases to which it might have consideration, I do note that the Tribunal does not refer to Minister for Immigration and Multicultural Affairs v Zheng [2000] FCA 50 or Wang v Minister for Immigration and Multicultural Affairs (2000) 179 ALR 1.  I do not identify these omissions as an error of law as such and it should not be taken as a criticism of the Tribunal that an exhaustive legal treatise on the notions of persecution and the Convention were not set out.  That is not the purpose of the comment.  It will become evident shortly, in examining the Tribunal’s reasons, as a factor to be weighed in the balance in seeking to understand the true purport and meaning of what the Tribunal has otherwise said in its reasons and in seeking to understand the extent to which the Tribunal has fulfilled its obligations in considering all relevant considerations mandated by the Act. 

13                  The Tribunal next dealt with the applicant’s claims under the heading "Discussion and Findings".  The Tribunal identified correctly that the claims of the applicant focused on his conversion to Christianity and his fears of persecution in Iran as an apostate and as someone who would give voice, according to his claims, to his religious beliefs if he was returned to Iran.  The Tribunal made findings of a strongly worded kind about the factual basis for the applicant’s claims which he said had taken place prior to leaving Iran.  It is unnecessary to set them out in detail.  They are set out in pages 9 to 11 of the decision in the court book of relevant documents at pages 161 to 163.  It suffices to recite the Tribunal's conclusion in this regard at page 163:

The Tribunal concludes that the applicant was of no adverse interest to the Iranian authorities when he last left Iran, that he left legally and that he did not have any well-founded fears of persecution at that time.  The outcome of his application, then, rests on whether or not he has become a refugee sur place.  That is, whether or not new factors have emerged since his departure from Iran that would found a conclusion he now has a well-founded fear of persecution for Convention reasons.

14                  That is a conclusion, otherwise explained in the decision, of a significant (almost wholesale) rejection of a body of evidence about what had happened in Iran.  There were other findings contrary to the evidence and claims of the applicant, which I will deal with in due course.  In particular, should I overlook any, they relate to a rejection of his claims that upon return to Iran he will be an outspoken derider of Islam. 

15                  If the claim for asylum rested at this point in the decision, that is at the point of assessment as to what had happened prior to leaving Iran, there would be little doubt that any claim for review would be a vain attempt to re-agitate the merits of comprehensive adverse factual findings.  However, the claim to be a refugee sur place was thereafter dealt with in somewhat less adverse fashion.  The Tribunal accepted the following facts:

(a)        The applicant had been baptised into the Christian faith after leaving Iran.

(b)        The applicant is now "a genuine Christian".  In the light of the evidence it must be taken, and I do not understand the Minister, through Mr Markus, to contest it, that this acceptance was as a genuine Christian member of an evangelical church.

(c)        The applicant shares his Christianity at the detention centre with "people who show an interest".

(d)        It was possible that he had persuaded a couple to come to services at the detention centre.

(e)        The available country information indicated that although apostasy is punishable by death according to Islamic law, “in practice, converts who keep a low profile and worship quietly are unlikely to be subjected to adverse attention from authorities.  However, if converts are publicly denounced and accused by their enemies they could face interrogation by the authorities, and those who actively proselytise, and, in particular, become agents of conversion, face potentially severe punishment”.  In effect, together with a number of earlier references to the effect that apostasy is punishable by death according to Islamic law, this was said to be a summary of the available country information.  I do not read that summary as a rejection of any particular aspect of the country information (that was set out) not inconsistent with the summary.  I will return to the country information later.

(f)         The applicant has continued to explore his new religion and wishes to share it with like minded people.

(f)                 The applicant shares his interest and enthusiasm only with Muslims who have shown a similar interest.  That is, “he isrelatively cautious, even in Australia, where he does not have to fear State authorities” [emphasis added].

16                  These findings must also be set in the context of matters which can be seen as adverse findings to his claims.

(a)        The Tribunal seriously doubted that the applicant was an active proselytiser in Kupang before coming to Australia, although the Tribunal did state in this context that, "even if he did wish to share his Christianity it is satisfied that he has been sufficiently circumspect to only approach people who already showed an interest".

(b)        The Tribunal did not accept that the applicant was a trenchant and overt critic of Islam and its implementation by the Iranian authorities.

(c)                The Tribunal was satisfied that Masoud and Davood had embellished their evidence to assist their friend to the extent that their evidence paints him as a critic of the Iranian authorities and an intransigent recruiter of Kurds, Arabs, Persians and others to the Protestant church.

(d)        In answer to the applicant's claim that if he returned to Iran he would continue to deride Islam in order to prepare people for Christianity, the Tribunal did not accept that he derided Islam "openly, if at all".  The Tribunal stated that it was satisfied that he had “added a political dimension to his conversion in an effort to increase his chances of obtaining a protection visa”.

(e)        The Tribunal found that the applicant is a "simple" or "ordinary" person in the sense that he had not been a devout practitioner of Islam or an office holder in political or religious institutions and that he was a trader in Iran and travelled overseas many times over a period of several years before returning to set up a shop and marry.

(f)         The Tribunal found that while his interest in and knowledge of Christianity had expanded since he last left Iran, he had not done anything since his departure from Iran to increase the likelihood that he faced persecution on his return beyond that of a remote chance.

(g)        The Tribunal did not accept that he has been identified as a convert and proselytiser by Iranians returning to Iran from Kupang.

17                  At this point it is convenient to note two findings upon which Mr Markus, on behalf of the Minister, placed great weight and, if I may say so respectfully to Mr Markus, not unreasonably.  On the top of page 169 of the court documents, on page 17 of the decision, the Tribunal found that “whatever initially motivated the applicant to embrace Christianity he has continued to explore his new religion and wishes to share it with like minded people”.  Towards the bottom of that same page and on the next page the Tribunal made the following finding:

He can practice his Christianity and share it with other people who show a similar interest without a real chance of attracting adverse attention from the Iranian authorities.

18                  I should add at this point that there was no finding by the Tribunal that the applicant did not have a subjective fear of persecution.  The whole tenor of that part of the reasons dealing with the claim of the applicant to be a refugee sur place was dealt with on the basis of a lack of a well-founded fear of persecution; that is, examining the matter substantially objectively speaking.  In summary, the Tribunal found that the applicant could return to Iran and practice his Christianity and share it with people who show a similar interest without a real chance of attracting adverse attention from the authorities.  It was this that founded the conclusion that his fears of persecution were not well-founded (at the top of page 18 of the decision, page 170 of the court book).  The sentence on the first full paragraph of page 18 of the decision, page 170 of the court book in fact contains within it, I think (and I think Mr Markus in submission fairly conceded as much), that the Tribunal found that the applicant did have a subjective fear of persecution.  But the rejection of his claim for asylum was based on, as I have said, the finding of his ability to practise his Christianity and share it with other people who showed a similar interest without a real chance of attracting adverse attention from the authorities.

19                  I am conscious of the need to examine the reasons of the Tribunal without an eye keenly attuned to the perception of error, or in a way other than what was referred to in Minister for Immigration and Multicultural Affairs v Wu Shang Liang (1996) 185 CLR 259 at 271-2 as beneficial construction.  I recognise that the Tribunal members are not necessarily lawyers nor are they judges.  I also accept the powerful point made by Mr Markus that these reasons have to be read in the light of the fact that the thrust of much, if not a greater proportion of the claim, was rejected by the Tribunal; that is, the parts of the claim dealing with events in Iran in the past and, indeed, his intentions in the future concerning proselytising in Iran and deriding Islam.  Thus, I do not disagree with the submission of Mr Markus, carefully and persuasively put, that the reasons must be looked at in this context.  They should not be overly parsed and analysed. They should, I think, (without intending to put a gloss on the clear injunction of the High Court which binds me), be looked at in a commonsense way without minute examination of the precise terms of facts found and expression used; and I think this approach requires, not so much a bias one way or the other as to what is meant, but a fair and commonsense-based understanding of what the Tribunal was attempting to get at in the light of what was being put to it. 

20                  What was the essence of the fact-finding (remembering that the relevant fact-finding is the claim for refugee status sur place after the rejection of much of the evidence which the applicant had given)?  In my view, a commonsense and fair reading of, in particular, pages 16-18 of the decision, pages 168-170 of the court book, read in the context of the balance of the decision and in the light of how the applicant put his claim, is as follows:

(a)                He was a Christian.

(b)        He was a Christian of an evangelical congregation or church.

(b)               He wished to share his faith with like-minded people.

(d)        He was not a derider of Islam or someone likely actively to proselytise.

(e)        Public manifestation of belief and worship in Iran could well lead to adverse attention from authorities.

(f)         However, if "a low profile" were to be kept and worshipping were to be done "quietly" it was "unlikely" that adverse attention from the authorities would be drawn.

(g)                If he were to be "cautious" and "circumspect" in how he practised his faith, it would be unlikely that he would face adverse consequences or adverse attention.

(h)                He would practise his faith in this way.

21                  This essential fact finding, in my view, must be set in the context of a proper grasp of the notion of “religion” within the Convention and with a proper grasp of the relationship between religion and persecution within Article 1A(2), read as a composite phrase.  I respectfully agree with, and adopt, the views of Wilcox J in Wang, and in particular paragraphs [5] to [7]:

[5] … [T]he concept of “religion” in Article 1A(2) of the Convention on Refugees, … includes the element of manifestation or practice of a religious faith in community with others.  This element is inherent in the ordinary meaning of the word.  For example, the first two definitions of the word in the Macquarie Dictionary are:

“1.       the quest for the values of the ideal life, involving three phases, the ideal, the practices for attaining the values of the ideal, and the theology or world view relating the quest to the environing universe.

a particular system in which the quest for the ideal life has been embodied.”  [Emphasis added]

[6] The Shorter Oxford English Dictionary gives the following relevant definitions of religion:

“Action or conduct indicating a belief in, reverence for, and desire to please, a divine ruling power; the exercise or practice of rites or observances implying this; A particular system of faith and worship.” [Emphasis added]

[7] Some religious rites may be privately practised by individual believers; but the major world religions, at least, also require or encourage their adherents to participate in communal rites or practices.  Most Christian denominations, for example, require or encourage adherents to attend Mass or Holy Communion.  Muslims are expected to attend prayers, especially on Fridays.

22                  It should be noted that Gray J agreed with Wilcox J in this regard.  I note that Wilcox J preferred (in paragraph [5] set out above) not to deal with the question of the Universal Declaration of Human Rights in the context of the understanding of religion for the purposes of the Convention definition.  For the same reasons identified by Wilcox J, I would likewise prefer, for today's purposes, not to base my decision on that, though I recognise that a majority of the Court in that decision (Merkel J and Gray J, Gray J agreeing with both Wilcox J and Merkel J) lent support to the utilisation of the Universal Declaration in that fashion.

23                  As well as the decision in Wang, I think that the views of Kirby J in Chen Shi Hai (2000) 201 CLR 293, at pages 307 to 308, should be borne in mind.  These are not views which I would understand to be contentious in the High Court.  I think the disposition of this case calls for a brief recognition of the force of what his Honour said:

As this Court has earlier demonstrated and as many decisions in Australia and in Courts of other countries of refuge show, the language of the Convention is opaque.  Perhaps it is deliberately so given that it must apply to the great variety of acts of oppression, despotism, fanaticism, cruelty and intolerance, of which humanity is capable.  In these circumstances only a broad approach to the text and to the legal rights which the Convention affords will fulfil its objectives.  As Sedley J remarked, in terms endorsed in the House of Lords by Lords Steyn and Hoffman, adjudication upon this branch of the law:

"Is not a conventional lawyers exercise of applying a litmus test to ascertain facts, it is a global appraisal of an individual's past and prospective situation in a particular cultural, social, political and legal milieu judged by a test which, though it has legal and linguistic limits has a broad humanitarian purpose".

Whilst courts of law, tribunals and officials must uphold the law, they must approach the meaning of the law relating to refugees with its humanitarian purpose in mind.  The Convention was adopted by the international community, and passed into Australian domestic law, to prevent the repetition of the affronts to humanity that occurred in the middle of the twentieth century and earlier.  At that time Australia, like most other like countries, substantially closed its doors against refugees.  The Convention and the municipal law giving it effect, are designed to ensure that this mistake is not repeated. [Footnotes omitted.]

24                  The views expressed by Wilcox J in Wang are entirely in conformity with the approach referred to by Kirby J in Chen. 

25                  It follows from this that the applicant's faith, recognised by the Tribunal by his membership of an evangelical congregation on a genuine basis, carries with it necessarily, unless there is evidence or, perhaps more accurately, findings, to the contrary, the elements of manifestation and practice in community with others.  To say that if he keeps a “low profile” and worships “quietly” or “cautiously” or “circumspectly”, is, I think, with respect, to deny the applicant a dimension to his faith, even accepting that he is not an enthusiastic proselytiser or derider of Islam.  Further, on my reading of pages 16 to 18 of the decision, and the balance of the reasons of the Tribunal, it appears to me that the Tribunal recognised in its findings that the applicant would keep a low profile or be cautious or circumspect and that he would do so out of recognition of the likely consequences from State authorities in Iran if he did not do so.  I think this is implicit in the passages on page 17 of the decision, that is on page 169 of the court book, as I will note further below.  The Tribunal had set out the country information which made clear the serious consequences of overtly public worship by an apostate, and in particular I refer to page 13 of the decision, page 165 of the court book in paragraph 2.3.17.2; page 14 of the decision, page 166 of the court book and the paragraph beginning "In practice", about halfway down the page, and the paragraph on page 15 of the decision, page 167 of the court book about halfway down the page commencing "The authorities".  These paragraphs include the following:

Any action interpreted as manifesting an intent to “influence a Muslim to convert faith” is a serious criminal offence both for the priest and the Muslim concerned.  Definition of this provision in the criminal code is moreover arbitrary and ambiguous.  Its application is intended to harass.  Converts are generally tolerated as long as they maintain a very low profile.

…

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 authorities have become particularly vigilant in recent years in curbing what is perceived as increasing proselytizing activities by evangelical Christians, whose services are conducted in Persian.  Conversion of a Muslim to a non-Muslim religion can be considered apostasy.  Government officials have reacted to this perceived activity by closing evangelical churches and arresting converts.  Members of evangelical congregations are required to carry membership cards, photocopies of which must be provided to the authorities.  Worshipers are subject to identity checks by authorities posted outside congregation centers.  Meetings for evangelical services have been restricted by the authorities to Sundays, and church officials have been ordered to inform the Ministry of Information and Islamic Guidance before admitting new members to their congregations.

26                  In referring to those pieces of country information I do not see them, or most of the contents of them, as in any way inconsistent with the summary the Tribunal made at pages 16 to 17 of the decision, pages 168 to 169 of the court book (and see para 15(e) above).  In any event, in the context of having referred to that and other country information without apparent criticism the Tribunal then said:

While the applicant has been baptised the Tribunal is satisfied he shares his interest and enthusiasm only with Muslims who have shown a similar interest.  That is, he is relatively cautious, even in Australia, where he does not have to fear State authorities.

27                  This is the paragraph that I emphasised earlier (in para 15(f)). Shortly thereafter, in that same paragraph, in the context of a comment upon evidence the applicant had given about his experiences in Iran which had been rejected, the Tribunal said:

If his evidence about his experiences in Iran were to be believed, his claim that he did not go to church because he was told it could be dangerous is indicative of his likely future conduct.

28                  I am not intending to parse and analyse.  What flows from my, I hope, commonsense reading of these pages (pages 16 to 18 of the decision) is that the Tribunal was saying that the applicant’s conduct in the future in Iran would be such, (that is low-profile worship and quiet worship), because of a recognition of the view, attitude and likely actions of the authorities, and if he did conduct himself in that way it was unlikely that any harm would come to him.

29                  In my view, if the above be a correct understanding of the reasons of the Tribunal, it has in effect made a finding that the applicant does not have a well-founded fear of adverse consequences because he can avoid, and he recognises that he can avoid, those adverse consequences, which would flow from his apostasy and public manifestation of his faith, by, in effect, keeping a low profile.  That is to say, in my view, no more than that he can avoid persecution by restricting the disclosure of his religion and by restricting the conduct of his religion in anticipation or, if one likes, in fear of the consequences if he did otherwise.  This, in my view, recognises the likely existence of persecution unless his religion is practised in a limited way.  Or, put more accurately, for the purposes of the Convention, that he perceives and has a well-founded appreciation that a limitation on his activities is necessary to avoid consequences from State authorities; and if he does so, which the Tribunal has found he will, he will then not face harm. 

30                  On this basis, in my view, the Tribunal failed to interpret correctly the applicable law, in particular the elements implicit in the word ‘religion’, and its inter-relationship with the likely perceived results in the country of nationality upon return; and the Tribunal, in my view, failed to correctly apply this understanding of religion and its intersection with persecution to the facts as found.  If I may add, this is why I identified earlier that there is no displayed appreciation in the reasons of the width and content of ‘religion’ for the purposes of the Convention.  May I say that I should not be taken as in any way critical of the Tribunal.  In one sense it is perfectly understandable why the matter was dealt with in this way, given how the applicant put his claims, but I do think, on a commonsense reading of pages 16-18 of the decision, that the Tribunal did seek to grapple with the lesser basis of the claim sur place, that is of the applicant's conversion and the applicant's true level of Christianity.  That is what the Tribunal was attempting to do, but in my view, and I say so respectfully, it confused the avoidance of adverse consequences with the fear of persecution.  For it was the avoidance of adverse consequences which it concentrated on when, in fact, that successful avoidance arose, necessarily, from a perception of the consequences of the alternatives in practising the religion. 

31                  Mr Markus, and if I may say so respectfully, once again, in careful, thoughtful and very mature submissions, put to me that I should read the decision, in particular the two passages that I have referred to on page 17 of the decision (page 169 of the court book) as containing a complete and legitimate disposition of the claim.  I hope I will not do a disservice to his submissions in the way that I summarise them.  He said that he accepted, as I think he must, that the Tribunal did not make a finding that the applicant's Christianity was of a limited character or capable of being described as a private faith.  That concession, most properly made, I think is borne out in the evidence. The finding was that he was a genuine Christian and of an evangelical congregation.  However, Mr Markus said that the applicant would recognise that going to Iran would mean some limitation upon his faith and practice but that when one looks at the applicant, his claims, and the findings about him, the Tribunal has in effect come to a view that such limitations that could be perceived by the applicant in Australia did not amount to well-founded fear of persecution, because to this applicant those limitations were not of sufficient gravity or nature truly to amount to persecution.  That perhaps is a less than fully articulate exposition of what Mr Markus put most carefully and persuasively.  During the course of debate, and without seeking to comprehensively illustrate the point, Mr Markus and I discussed a limitation on someone going back to his or her country of nationality and being limited to two or three visits to church a week instead a usual three or four.  That might be, technically speaking, in a particular case, a limitation on the practice of the faith but not one which might be seen as persecution. 

32                  The difficulty I have with Mr Markus' submissions is not in terms of their intrinsic and internal consistency, but that I do not read pages 16 to 18 of the decision as finding that.  If the Tribunal had found that, there would be much to support what Mr Markus submitted, that is, there would be a factual finding that for this person not only could the practice of religion in the country of nationality not attract any adverse consequences but that any reduction in what was a habitual or desired extent of practice was minor in respect of that particular person and that particular person’s faith.  I agree that there would be much said for the proposition both that that was not persecution and that the foresight of it would not be a well-founded fear of persecution.  However, as I have said, I do not read the Tribunal as making those findings.  In saying that, I am naturally anxious to comply with both the letter and spirit of Wu Shan Liang and have tried to do so.  I simply do not extract what Mr Markus has submitted from the reasoning of the Tribunal.

33                  There is another way of perceiving an error in the approach of the Tribunal.  This may arise even if my earlier views as to the extent of the reasons are wrong, that is, if my earlier view is wrong that the Tribunal has in fact within its own findings expressed a view that the applicant will limit what he does because of a recognition of the consequences, that is because of a recognition of his fear of the consequences of not so limiting his conduct.

34                  If my preferred view of the reasons is not correct, then I think that the Tribunal has failed to direct itself to a question which is inherent in the Convention definition, and the intersection of religion and persecution within that composite phrase, as arising from the facts as found.  That is, 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. 

36                  On either basis which I have put, in my view there is an error of law within the meaning of either s 476(1)(e) or s 476(1)(b) of the Act.  As to the former provision, that is, s 476(1)(e), in my view there is an error of law in the appreciation of the applicable law, that is, the meaning of religion and its intersection with persecution within the composite phrase in the Convention, and the application of that law to the facts as in fact found. 

37                  Alternatively (s 476(1)(b)), there has been a failure to complete the task directed by the Convention and the Act in the assessment of the status of the applicant as a refugee sur place in the light of the facts as found.  In the sense discussed in Craig v South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, in particular the latter, that failure in my view is a failure properly to complete the task required of it in undertaking its jurisdiction.  As I have said, I do not base this on a failure to take into account some fact propounded by the claimant, but rather the failure to direct itself to the question thrown up by the facts, that is, the intersection of the notion of religion and persecution by reference to the limitations to be placed on this applicant when he goes back to Iran in the context of deciding whether he had a well-founded fear of persecution.

38                  In giving these reasons I have had regard to both the written submissions and the oral submissions, though I have tended to concentrate upon the oral submissions made by the parties this morning.  Once again, may I conclude by indicating my appreciation to both counsel for the manner in which they assisted me in the elucidation of the issues in this matter, this morning in particular. 

39                  For the reasons I have given, the orders of the Court will be and are:

(1)        That the application is allowed and the decision of the Refugee Review Tribunal under review made on 10 April 2001 affirming the decision of the delegate of the minister made on 31 January 2001 be set aside.

(2)        That the matter be remitted to the Tribunal differently constituted for further consideration according to law.

(3)        That the respondent pay the applicant's costs.

40                  It is, perhaps, obvious, but given the findings of fact and credit made by the Tribunal, I think it essential that the matter go back to a differently constituted Tribunal.  It should not be taken that I am in any way directing any criticism to the previous Tribunal in taking that course. 

41                  May I conclude by saying that in one sense the decision of the Tribunal was understandable in the light of the way the matter was put to it, but in my view, on due consideration and on what I think is a fair and commonsense reading of pages 16 to 18 of the decision, that is pages 168 to 170 of the court book, I think the Tribunal fell into error, in, as I indicated earlier, running together of the notion of avoiding consequences with the reasons for avoiding those consequences, the latter being an appreciation by the applicant that a failure to take steps to avoid the consequences would lead to likely harm of the kind to which this Convention is directed.  Thus I make the orders I have identified above.

Associate:

Dated:              27 June 2001