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MIGRATION - Review of decision of the Refugee Review Tribunal affirming decision not to grant a protection visa - Iranian citizen claiming religious persecution - issues regarding credibility of applicant and reasonableness of claimed fear - decision of Refugee Review Tribunal affirmed.

SCAK v Minister for Immigration [2002] FMCA 327 (13 December 2002)

SCAK v Minister for Immigration [2002] FMCA 327 (13 December 2002)
Last Updated: 16 December 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SCAK v MINISTER FOR IMMIGRATION
[2002] FMCA 327



MIGRATION - Review of decision of the Refugee Review Tribunal affirming decision not to grant a protection visa - Iranian citizen claiming religious persecution - issues regarding credibility of applicant and reasonableness of claimed fear - decision of Refugee Review Tribunal affirmed.



Migration Act 1958 (Cth), s.474

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 229

Hickman ex parte, Fox v Clinton (1945) 70 CLR 598

Applicant:
SCAK



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


AZ145 of 2002



Delivered on:


13 December 2002



Delivered at:


Adelaide



Hearing Date:


26 July 2002



Judgment of:


Mead FM



REPRESENTATION

Counsel for the Applicant:


In person



Solicitors for the Applicant:


In person



Counsel for the Respondent:


Mr Roder



Solicitors for the Respondent:


Sparke Helmore


ORDERS

(1) That the Application be dismissed.

(2) That the applicant pay the respondent's costs in the sum of THREE THOUSAND FIVE HUNDRED DOLLARS ($3,500) pursuant to Part 21 Rule 21.02 (2)(a) of the Federal Magistrates Court's Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

ADELAIDE


AZ 145 of 2002

SCAK


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is an Iranian national. He arrived in Australia on 31st December 2000. He has remained in Immigration custody since that time.

2. On 24th June 2001 he lodged an application for a protection (class XA) visa with the Department of Immigration, Multicultural & Indigenous Affairs, which application was refused on 16th August 2001.

3. The applicant sought a review of the Refugee Review Tribunal decision and on 15th February 2002 the Tribunal affirmed the earlier decision not to grant a protection visa to the applicant.

4. The basis of the applicant's claim to the Tribunal was that he had a well founded fear of persecution, such as to invoke Australia's obligations under the Refugees Convention and the Refugees Protocol by virtue of him having rejected Islam and his political opposition to the Islamic Regime.

5. He was born a Shi'a, became disillusioned with Islam and the regime imposed by the Iranian Government and alleged a long term interest in Christianity as an alternative religion and way of life. He blamed the religious extremism of the Iranian Regime for the war against Iraq which led to displacement of his family and significant interruption to his education and was the genesis for his beginning to question Islamic doctrine and the policy of strict adherence to Islamic law imposed by the regime.

6. He claimed to have been arrested some three or four years prior to coming to Australia by Officers of the Department of Social Corruption because of his dress and general appearance, to have been taken to the Department's headquarters and having been beaten and also having had the top of his head shaved.

7. He claimed that approximately a year prior to leaving Iran he again had difficulties with the Basij forces due to his non participation in religious ceremonies.

8. He was also apparently censored for listening to music and hanging pictures in his shop.

9. He alleged that after several verbal clashes he was arrested, held in a small room for five hours and told that if he did not comply with directions his shop would be taken away from him. He claimed to have been beaten and released after he signed an undertaking not to continue his previous behaviour.

10. He claimed to have met a customer at the dry cleaning shop who was Christian, claimed to have discussions with that customer from time to time about Christianity and the applicant's moral dilemmas in relation to his required adherence to the Islamic faith and claimed that as a result of those discussions he decided to take up the Christian faith in his own mind. He did not claim to have converted to Christianity whilst still in Iran.

11. He claimed that as a result of his circumstances and of his developing anti-Islamic views he began to develop a fear for his own well being which progressed over a period of time to the extent that his fear became so great that he felt compelled to leave Iran.

12. Shortly after arriving in Australia he began to attend at Christian classes with a Catholic priest at Woomera, learnt more about the basic doctrines of the Christian faith and considered himself to be a Catholic Christian.

13. He was fearful that if he returned to Iran he would suffer persecution due to his rejection of Islam and his political opposition to the Islamic Regime and was fearful that because his new beliefs are not in line with those espoused by the regime he would be placed in a position where he would be considered as being in defiance of the government and subject under the Iranian religious code to the death penalty for apostasy.

14. The applicant claimed to be 26 years of age and of Bakhtiari ethnicity. He is unmarried.

15. He claimed to come from a devout Shi'a family and was concerned about the effect his rejection of those religious principles would have on his relationship with his family.

16. After considering the applicant's claims the Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

17. The Tribunal affirmed the delegate's decision not to grant a protection visa.

18. The Tribunal considered the applicant's claims as a whole and found that he did not face a real chance of persecution for reasons of political opinion or religion and that any fears that the applicant may hold in that regard were not well founded.

19. The Tribunals findings and reasoning were set out from pages 127 to 133 inclusive of the Green Book.

20. The Tribunal:-

a) Found that the applicant left Iran using his own passport (page 127 Green Book);

b) Found that he made no convention related claims when he first entered Australia but rather, claimed that he had left Iran for a better life and, in describing the problems he faced in Iran, referred primarily to economic problems (pages 127 and 128 Green Book);

c) Found that the reasons given for leaving Iran and coming to Australia in his first interview were the actual reasons he had for leaving Iran on a permanent basis and not the reasons that he later claimed, namely harassment and mistreatment by religious Police or authorities for failing to conform to a strict religious code of dress and behaviour and prevention from conversion to Christianity (pages 127 and 128 Green Book);

d) Accepted his later resiling from his allegation that he was prevented from converting to Christianity and his then assertion that he had an interest in Christianity whilst in Iran but made no attempt to convert whilst in Iran and did not let anyone known of his interest in that regard (page 127 Green Book);

e) Accepted that a person in the position of the applicant entering another country would be apprehensive and anxious when facing foreign officials and being questioned about reasons for entering the country with no intention of returning home. It found that with such an intention in mind, and in the light of the cautions put to the applicant at the time of the interview, that the applicant would have at that time provided the strongest possible reasons for his departure from Iran, including the reasons that he would have held for not wanting to return to Iran if he had held such strong reasons, as such detail would have ensured his greatest chance of remaining in Australia (page 128 Green Book);

f) Found that his written description of harassment by religious police and his personal account of that harassment were at variance and accepted the applicant's assertion that what had occurred was not what precipitated his departure from Iran (page 128 Green Book);

g) Was of the view from the account of the applicant that the difficulties he encountered with the religious police related to what such police considered to be appropriate behaviour in Iran and that their behaviour was directed to all Iranians and was not for a convention reason nor discriminatory (page 128 Green Book);

h) Found consistently with matters put to the Tribunal by the applicant that he left Iran on his own passport and that at that time there was no impediment to his departure, nor was he of any concern to the authorities or to anyone in a political sense in Iran (page 129 Green Book);

i) That he was not pressured into participating in Islamic religious activities or into conforming to the Islamic faith in Iran and that no-one else was aware of his interest in Christianity (page 129 Green Book);

j) Found that he left Iran for reasons other than for a fear of persecution for any convention reason and that his interest in Christianity did not exist at the time that he left Iran (page 129 Green Book);

k) Found that his claim to have converted to Christianity was developed subsequent to his arrival in Australia to add a convention element to his claim for asylum and that it was implausible that a person would convert to a foreign religion almost immediately upon arriving a new country without having a good understanding of that religion, particularly if they thought that such a conversion would cause difficulties for themselves or members of their family in their home country (page 129 Green Book);

l) Accepted that the applicant had attended Mass and Christian religious meetings in the Detention Centre (page 130 Green Book);

m) Accepted that the local Priest Father Monaghan was satisfied that the applicant's conversion was genuine (page 130 Green Book);

n) Was not satisfied that the applicant's conversion was genuine (page 130 Green Book);

o) Accepted however that if his conversion to Christianity was genuine, the manner in which he intended to practice his faith would not result in him adopting a high profile or proselytising in Iran;

p) Considered independent material in relation to the practice of religions other than Islam in Iran and found that the applicant's profile in relation to the manner in which he intended to practice Christianity was in no way similar to people described in the independent material who had been high profile leaders or engaged in proselytising and was unable to be satisfied that the applicant's claim that he would suffer harm amounting to persecution in Iran as a result of his conversion which would lead to a charge of apostasy was a well founded fear (pages 130 and 131 Green Book);

q) Analysed the applicant's claims in relation to his claims as regards his fear concerning the harm that may come to him as a result of his conversion to Christianity against certain country information (pages 116 to 119, pages 123 to 126, page 131 Green Book);

r) Found that the applicant does not have a history of facing serious harm in Iran for a convention reason and that he was not of concern to the authorities at the time he left Iran and that he departed legally;

s) Did not accept that the applicant was a genuine convert to Christianity, but found that even if he was a genuine convert to Christianity, that as a "simple person" he could return to Iran and practice Christianity at the level he currently does in the Detention Centre without a "real chance" of persecution for reasons of religion (page 132 Green Book);

t) Taking into all of the applicant's claims, found that he does not face a real chance of persecution for reasons of political opinion or religion and that any fears he may hold in that regard are not well founded (page 132 Green Book);

21. On 21st August 2001 the Tribunal wrote to the applicant advising that it would consider the documents provided to it by the Department of Immigration and Multicultural Affairs in relation to the applicant's case together with his papers and if it was unable to make a decision in his favour he would be asked whether he wanted to come to a hearing of the Tribunal to give oral evidence and to present arguments. He was told in that correspondence that if he had any new documents or written evidence he should send them to the Tribunal at the earliest possible point in the Review process.

22. On 2nd October 2001 the applicant was advised that the Tribunal was not prepared to make a favourable decision on the information it had received to date and invited the applicant to a hearing of the Tribunal to give oral evidence and present arguments on Monday 15th October 2001 at the Woomera Court House.

23. The Tribunal considered the material it had received from the Department together with extensive submissions by a Migration Agent on behalf of the applicant, as well as written material from Pastor Edmund Bagheri of the Persian Evangelical Anglican Church in Parramatta and additional material from Father Monaghan and Sister Anne from Woomera.

24. Subsequent to the first hearing, the Tribunal also invited the applicant by way of letter dated 16th October 2001 to respond to concerns as to discrepancies between his interview on arrival in Australia and the subsequent submissions to the Tribunal, particularly in relation to the issue of his conversion to Christianity and his reasons for leaving Iran and the applicant responded to that query through his then Migration Agent.

25. The Tribunal considered relevant independent country information including additional country information to which they directed the applicant in their letter dated 22nd October 2001.

26. The Tribunal clearly analysed the applicant's claims in detail between pages 119 and 133 inclusive of the Green Book. Those claims were considered against the background of all of the material previously referred to herein. It is not the role of this Court to substitute its' own views of the evidence before it for the views of the Tribunal.

27. The applicant submitted to the Court that he had said what he wanted to say to the Refugee Review Tribunal but said that he was not able to understand how the Tribunal would have measured his interest in Christianity.

28. He submitted that it was indicative of the genuineness of his claim as to conversion to Christianity that he had commenced attending at Christianity classes within 20 days of his arrival at the Woomera camp and he felt that the Tribunal had made an incorrect finding as to his ability to practice Christianity in Iran in the same way as he was able to in the camp.

29. At one stage the applicant indicated that he saw no point in proceeding with the review process, but when pressed indicated that he would so proceed.

30. The applicant, both in his own written and oral submissions and the written submissions of his Migration Agent and other witnesses, stressed the veracity of the matters he had put to the Tribunal and was critical of the Tribunal's finding that his conversion to Christianity was not genuine and/or that even if the conversion was genuine, he would be able to practice his new religion in Iran free from persecution.

31. The Court must concern itself with the question of whether or not when the Tribunal came to its' decision it properly exercised the jurisdiction given to it.

32. The Tribunal clearly had concerns as to the veracity of the applicant's claims, particularly in light of the discrepancy between the matters raised by the applicant during his first interview upon arrival in Australia and the matters subsequently put to the Department and then the Tribunal in support of his claim for refugee status.

33. A finding on credibility is a function of the primary decision maker and in this case the Tribunal clearly disclosed the basis for it's concerns as to the veracity of the applicant's account of his circumstances made both to the Department and the Tribunal subsequent to his arrival interview.

34. It is clear since the decision of NAAV & Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 229 that the powers of the Tribunal have been widened such that only a failure to exercise its decision making powers in a bona fide manner now provides grounds for review. That case concerned the operation of section 474 of the Migration Act 1958 (Cth). It places into the Migration Act a privative clause, which has been interpreted by the High Court in the case of R v Hickman; ex parte Fox & Clinton [1945] 70 CLR 598 at 616. Dickson J stated the three pre-conditions to the valid exercise of decision making powers to which such a clause applies as:-

a) the decision maker is required to have made a "bona fide attempt" to exercise its power;

b) the decision "relates to the subject matter of the legislation";

c) the decision "is reasonable capable of reference to the power given to" the decision maker.

35. I have read the decision of the Tribunal.

36. I have listened to the submissions of the applicant and read his additional submissions.

37. I am unable to find anything either in the papers or in the oral submissions of the applicant that would support his argument that the Tribunal prejudged any issues or entered upon its decision with a closed mind.

38. I have set out herein the matters on which the applicant relied and the relevant parts of the decision that related to each of those grounds.

39. There is no evidence that the Tribunal did not give all of the applicant's submissions appropriate consideration.

40. The applicant's claim that he had a well founded fear of persecution for reasons of political opinion or religion failed, both on grounds of credibility and on the basis that even if the applicant was a genuine convert to Christianity, that in light of the background of the extensive country information in relation to the practice of religion in Iran considered by the Tribunal, such a fear of persecution was not well founded.

41. In all of the circumstances I am unable to find that any grounds for review as currently permitted by the legislation and the decision of the Full Bench of the Federal Court exist.

42. I find that no error of the kind necessary to attract relief under Section 39B of the Judiciary Act as affected by part 8 of the Act is apparent.

43. I dismiss the application and order that the applicant pay the respondent's costs which I assess in the sum of $3,500 pursuant to Part 21, Rule 21.02 (2) (a) of the Federal Magistrates Court's Rules.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Mead FM

Associate:

Date:
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