Lotfabad v Minister for Immigration and Multicultural Affairs

[2001] FCA 1111

FEDERAL COURT OF AUSTRALIA

Lotfabad v Minister for Immigration and Multicultural Affairs [2001] FCA 1111

MIGRATION – protection visa – application for review of a decision of the Refugee Review Tribunal – where RRT not satisfied that the applicant converted from Islam to Christianity prior to his departure from Iran – where RRT not satisfied that the applicant faced any Convention related harm prior to his departure from Iran – sur place claim – where applicant actively involved in practising his Christianity since arriving in Australia

Migration Act 1958 (Cth)

NARID IBRAHIMI POOR LOTFABAD v
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W 119 of 2001

TAMBERLIN J
PERTH
10 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 119 OF 2001

BETWEEN:	NARID IBRAHIMI POOR LOTFABAD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	10 AUGUST 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

The application for review is dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 119 OF 2001

BETWEEN:	NARID IBRAHIMI POOR LOTFABAD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	10 AUGUST 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant in this matter is a citizen of Iran who arrived in Australia on 20 February 2000.  He lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 1 June 2000.  On 8 February 2001, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection visa, and on 15 February 2001, the applicant applied for review of that decision.  The Refugee Review Tribunal (“the RRT”) gave a decision on the review application on 2 April 2001 which affirmed the decision not to grant a protection visa to the applicant. 

2. The application for review to this Court is made under two headings.  The first raises the questions whether, prior to his departure from Iran, the applicant converted to Christianity or faced any Convention related harm.  The second heading raises the question whether the applicant has any grounds for claiming refugee status on what is known as the refugee “sur place” ground because of his own actions after his departure from Iran. 

3. The RRT found against the applicant on each of these grounds.  In relation to both grounds it is fair to say that the decision-maker formed an adverse view as to the applicant’s credibility and gave detailed reasons for so doing.  There were eight factual findings made in relation to specific matters which were not accepted by the RRT and these were discussed in some detail.  The RRT concluded that it could not be satisfied that while he was in Iran the applicant converted from Islam to Christianity or that he faced any Convention related harm prior to his departure from Iran.

4. The thrust of the submissions which have been made to me this morning by Dr Hockley on behalf of the applicant is really a request to the Court to set aside the factual findings which have been made by the RRT in this case.  That is not part of the function of this Court and, unless some error in principle can be demonstrated which would warrant the grant of review in this matter, the application cannot succeed.  I am not satisfied that any reviewable error has been indicated in the decision of the RRT in relation to this matter.  The RRT considered in some detail each ground and gave reasons.  These reasons may be right or wrong.  There is nothing to suggest, in fact, that they are wrong, but the decision on that question is not for the Court.  The Court is limited by the provisions of the Migration Act 1958 (Cth).

5. So far as the sur place claim is concerned, the applicant’s claim was that since he has been in Australia he has been actively involved in practising his Christianity.  The thrust of his case before the RRT was that if he were to return to Iran, then he would practise his religion overtly and would attract the adverse attention of the authorities who would then harass him for religious reasons.  The RRT did not accept this submission. 

6. In evidence there is a letter from a priest, Father Jim Monaghan, who has been familiar with the applicant for over a year, and who testified to the excellent character of the applicant and his religious commitment and to the way in which he has manifested his commitment to his religion.  In the letter, Father Monaghan said that the applicant is not a person who would be able in conscience to reduce his faith to the secretive practice suggested by the case officer of the Department of Immigration and Multicultural Affairs as a way of avoiding persecution should he be returned to Iran.  Great weight could be given to this evidence.  However, the RRT in this matter considered a number of other factors, including independent evidence regarding Armenian Christians, and concluded that “converts are generally tolerated as long as they maintain a very low profile”: at 24.  The RRT did find, however, that people who publicly convert away from Islam would be harassed, possibly imprisoned and threatened with death if they had been found to be active in proselytising among Muslims.

7. In this case, therefore, the independent country information indicated that before there is a chance of persecution, it is necessary to demonstrate a perception that the applicant would be active in proselytising among Muslims.  The applicant himself said that he would overtly practise his religion in Iran if returned.  The RRT balanced this statement and that of Father Monaghan against a number of other considerations, which I will not detail but which are set out in the decision under review, at 25.  These include evidence going to the character of the accused as being not given to proselytising or to radical demonstrations of his faith.  Indeed, so much was said in those terms by Father Monaghan himself.  The applicant’s evidence was that he had not informed anyone in Iran of his Christian activities in Australia, which does tend to support a view that he may not be actively involved in attempting to convert Muslims if returned to Iran.

8. The decision-maker took these considerations into account and weighed them against each other before reaching her conclusion.  In my view, the conclusion which she reached was open to her and I cannot perceive any reviewable error of law or principle in the determination of this second question. 

9. It does strike one, however, that the apparently exemplary conduct of the applicant has provided the very basis, or one of the bases, for defeating his claim for refugee status.  It was because he has conducted himself in a low-key manner and is not given to proselytising or radical demonstrations of his faith that, in effect, the second ground which was raised was not available to him before the RRT.  The letter from Father Monaghan does testify to the excellent conduct and very positive commitment of the applicant whilst in detention and to his practising his faith with devotion. 

10. This is a matter where it may be appropriate to approach the Minister for the exercise of a discretion, were he to be so minded, under the Act to grant a more favourable decision to the applicant than that granted by the RRT.  Be that as it may, in the present case I cannot be satisfied that grounds have been made out for granting judicial review and I therefore dismiss the application with costs. 

11. Before leaving the Bench, I want to express the gratitude and appreciation of the Court for the efforts made by Dr Hockley in this matter, particularly in formulating the detailed and painstaking submissions which he has furnished to the Court.  I am satisfied that everything that could have been said on behalf of the applicant has been said and this is a commendable effort on the part of Dr Hockley and those participating in the pro bono scheme which is in force in Western Australia to assist applicants in these matters.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:             29 August 2001

Counsel for the Applicant:	Dr J J Hockley
Counsel for the Respondent:	Mr P R Macliver
Solicitor for the Respondent:	Australian  Government Solicitor
Date of Hearing:	10 August 2001
Date of Judgment:	10 August 2001