MZZRI v Minister for Immigration
[2014] FCCA 1817
•29 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZRI v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1817 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – application dismissed. |
| Legislation: Migration Act 1958 s.36(2)(aa) |
| NBGV v the Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 690 |
| Applicant: | MZZRI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1386 of 2013 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 1 July 2014 |
| Date of Last Submission: | 24 July 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 29 August 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Gory |
| Solicitors for the Applicant: | Holding Redlich |
| Counsel for the First Respondent: | Mr Brown |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The Application filed on 29 August 2013 and the Amended Application filed on 3 June 2014 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1386 of 2013
| MZZRI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
The Applicant seeks judicial review of a decision of the Refugee Review Tribunal made on 26 July 2013 which affirmed a decision of a delegate of the First Respondent to refuse the Applicant a protection (class XA) visa.
The Applicant is a citizen of Iran and originally of Muslim faith but claims to have converted to Christianity. The Applicant entered Australia as an unauthorised maritime arrival on 18 July 2012 (CB 148).
On 27 November 2012 the Applicant lodged his application for a protection visa and was interviewed by a delegate of the Minister (CB 148).
The Applicant claimed to fear persecution on the basis of his conversion to Christianity, and imputed political opinion based on him being a non-practicing Muslim (CB 157). The Applicant also claimed to meet the complementary protection criterion in s.36(2)(aa) of the Migration Act 1958.
On 5 April 2013 a delegate of the First Respondent refused to grant the Applicant a Visa (CB 201).
The Tribunal’s Findings
The Applicant made the following submissions to the Tribunal:
9. …
5. My parents are Muslim so my religion at birth was Islam. My parents gave me this religion. In Iran it is against the law for a Muslim family to have a child and for this child not to follow Islam. There is no freedom of religion For Muslims.
…
8. When I was 21 years old I started the compulsory military service. During those two year I was very depressed because I did not want to do military service. I am against war and killing people.
9. During this time I started to become disillusioned with the regime and the regime’s view of Islam. I started to think that many had been killed in the name of Islam. The more I thought about these issues the more I started to reject Islam. By the time I finished my military service I personally felt I no longer saw myself as Muslim.
…
11. I started to think about other religions and to wonder if they were very different to Islam. Some of my friends are Christian so I started to ask the questions about Christianity. One of my friends lent me a bible so I started reading the bible.
12. My friend converted to Christianity so during this time I was speaking to him.
13. After a while I asked him to take me to his church….
14. He eventually agreed to take me to church. I went to church with him a few times.
15. I decided because once I started to attend this church I became fearful for my safety and I wanted to go to a country where I can be free to explore Christianity without fear. I want to be able to go to church with other people without fear and to be able to tell other Muslims about Christianity. I also became interested in becoming a priest. I cannot do this in Iran.
16. In Iran I cannot even renounce Islam. The government does not allow Muslims to renounce Islam. The penalty is death. I want to have the freedom to reject Islam.
The Tribunal made the following findings in relation to the applicant’s submission (CB 158):
43. The Tribunal is concerned that the written claims made by the applicant in his statutory declaration on 21 November 2012 give a significantly different impression of the timing and manner of his conversion to Christianity than that given by the applicant in his oral evidence at hearing and in his prior interviews with departmental officers. In particular the Tribunal considers that the written claims made by the statutory declaration read as a while suggest that the applicant’s involvement in Christianity began around the time he finished his military service about 20 years ago. In that statutory declaration the applicant stated that by the time he had finished his military service he no longer saw himself as Muslim. He goes on to state that he talked about this to his mother and started to think about other religions and to wonder if they were different from Islam. He stated that some of his friends were Christian so he started to ask questions about Christianity and one of his friends lent him a bible which he started reading. He states that his friend converted to Christianity so during this time he was speaking to him and after a while the applicant asked him to take him to his church. He states that he reluctantly agreed and the applicant went to church with him a few times.
44. In his oral evidence before the Tribunal, the applicant stated that he had friends who were Christian when he was undertaking his military service in Tehran about twenty years ago and that he asked these friends to talk to him and explain to him about Christianity. However, when asked to name these friends, he stated that he couldn’t remember their names because after completing his military service he returned to Rasht from Tehran and was no longer in contact with them. He stated he after finishing his military service there was not much activity relating to his religion as he was very fearful and shared his ideas about religion only approximately five years before he left Iran, being about 2007, which he told the Tribunal was the time he started taking Christianity seriously. The Tribunal considers this to be inconsistent with his statements in his statutory declaration which suggest that after finishing his military service he spoke to his Christian friends about Christianity, that one of them lent him a bible which he started reading and that one of his friends converted to Christianity and the applicant spoke to him during this time. The Tribunal acknowledges that the applicant’s statutory declaration does not give dates for these events, but considers that a fair reading of that document suggest these events occurred in the period shortly after the applicant finished his military service at 22.
45. In a submission dated 16 July 2013, it was further submitted that the applicant instructs that he has been disillusioned with Christianity for a very long period and that while he and that while he had been attracted to Christianity for a considerable period of time, it was only when he attended the Maryam Church six years ago that he started to seriously consider the idea of converting to Christianity. It was submitted that prior to this, his interest was limited to some reading of the bible and going to his friend’s house on a few occasions. However the Tribunal considers the submission that the applicant attended church with a friend prior to his claimed involvement with the Maryam Church to be inconsistent with the applicant’s evidence at hearing.
…
49. The Tribunal is prepared to accept that the applicant’s statements above referred to his activities in a house church. However it considers them to be vague and lacking credibility and the Tribunal remains concerned that the applicant makes no mention of his house church claims in his written statement and says so little about them in his interview. It was further submitted that any mention made by the applicant of classes or prayers refers to events during church meetings at the applicant’s house. The Tribunal does not accept this submission given the other concerns the Tribunal holds about the applicant’s credibility as set out in this decision. These concerns cause the Tribunal not the accept that the applicant conducted a house church out of his home in Rasht prior to leaving Iran as claimed.
…
51. There are other inconsistencies in the applicant’s various statements that remain of concern to the Tribunal. He gave evidence at the Tribunal hearing that is recorded as stating in his entry interview that six to seven months prior to leaving Australia, he was summonsed to the nearby basij headquarters in a local mosque where he was told by Haj Agha Hosseini that he had heard that the applicant went to church, that people were coming to his house and talking about Christianity and Jesus Christ. The applicant stated that he was forced to lie out of worry for his mother, telling Haj Agha Hosseini that the friends coming to his place were simply studying and reviewing their courses. The applicant stated that Haj Agha Hosseini told him that if saw the slightest evidence that the claims were true, he would face consequences and asked for an oral undertaking from the applicant that he would not do such things. At his entry interview, the applicant is recorded as giving evidence broadly consistent with his oral evidence at the Tribunal hearing. However at his departmental interview, the applicant was asked whether he ever got in trouble with the authorities in Iran, to which he responded that he didn’t but that they watched him because he didn’t attend Islamic events. The applicant does not mention this incident concerning Haj Agha Hosseini in his written claims for protection. It was submitted on 16 July 2013 that the applicant’s response to the question posed by the delegate as to whether the applicant ever got in trouble with the authorities was misinterpreted and that the applicant didn’t go into detail at his protection interview because he assumed that the delegate would be aware of his detailed account of this incident in his entry interview. The Tribunal has again listened to the relevant part of the recording of the departmental interview. The Tribunal does not accept that the applicant’s response was not correctly interpreted, rather it considers it to be materially inconsistent with his evidence at the Tribunal hearing. The Tribunal considers the applicant’s various statements about his contact with the authorities contain significant inconsistencies and this causes the Tribunal not to accept that the applicant was summonsed to the basij headquarters as claimed, nor that he was threatened by Haj Agha Hosseini or any other person in relation to his religious activities. Nor does the Tribunal accept that the applicant would be of any interest to the basij or the Iranian authorities in the future on the basis of his religious activities in Iran.
…
53. The Tribunal considers the inconsistencies in the applicant’s various statements as to when how and the circumstances in which he became a Christian to be significant and without credible explanation. The Tribunal does not accept that the applicant ever attended a Christian church in Rasht, nor that he met with Daniel or others outside of that church to discuss Christianity. The Tribunal does not accept that the applicant held a house church in his home in Rasht, nor does it accept that he was questioned by the Basiji about his claimed Christian activities. The Tribunal does not accept that the applicant converted to Christianity while in Iran, nor that the authorities have any interest in the applicant for any reason relating to his religion. The Tribunal does not accept that the applicant’s claimed conversion to Christianity is genuine, nor does it accept that the applicant will seek to practice the Christian faith if he returns to Iran, now or in the reasonably foreseeable future.
Grounds
The Applicant based his claims on the following grounds:
1. The Tribunal’s decision was affected by jurisdictional error in that it failed to consider an integer of the Applicant’s claim, namely that the Applicant held a well-founded fear of harm based on him being a non-practicing Muslim.
2. The Tribunal failed to accord procedural fairness to the Applicant in that it did not notify him of its view that a claim based on the Applicant being a non-practicing Muslim was not raised on the material before it and/or had been abandoned by the Applicant, in circumstances where the delegate had considered the Applicant’s claim on this basis.
At the outset it was conceded by the Minister that the question of whether or not the applicant was at risk of harm as a result of, at least, being imputed to be a non-practising Muslim was raised on the material and, therefore, may be an integer of this case.
In this regard counsel noted that the issue was considered by the delegate at page 11 of the decision where the delegate said:
11. The applicant stated that he arrived in Australia in June 2012, having left Iran about a month earlier. He stated that he had held a genuinely issued Iranian passport, but had exited Iran on a false passport and that his genuine passport was taken away by the person who made the false passport. He stated that he left Iran illegally because of his religious activities which the basij knew about. He stated that after arriving in Australia he spent 90 days in detention at Christmas Island, Darwin and Curtin detention centres and was released from detention in September 2012.
Alternative or Secondary Claim
The real question in this case was whether or not the claim by the applicant based upon him being a non-practising Muslim required the Tribunal to specifically deal with it.
The case as put by the applicant was that he had converted to Christianity and, therefore, was at risk. This claim was unsuccessful.
The applicant said that there are four matters and events associated with them that led him to be at risk which formed the basis of his claim. The most significant of these was a claim that he was the subject of surveillance and at one stage required to attend at the Mosque at the headquarters of the local Basij for questioning or interrogation. This was specifically dealt with by the decision-maker in paras.51 and 53 quoted above and rejected as a matter of fact.
The second and third matters were claims that he had attended a Christian church and associated with Christians. Again, these matters were rejected as a matter of fact by the Tribunal member.
Finally, he relied upon a claim that a friend of his had been questioned and then later left the country: see paragraph 24 of the Tribunal’s reasons. However, this was also specifically rejected by the Tribunal member: See para.53 of the reasons.
In addition to the rejection of each of the factual bases that might give rise to the conclusion that he was at risk or even from which an inference of risk could be drawn, the Tribunal member specifically said (at para. 53):
The tribunal does not accept that … the authorities have any interest in the applicant for any reason relating to his religion.
Given the context of that sentence it seems clear that the Tribunal member, when referring to “any reason relating to his religion”, was taking a global view rather than simply a view limited by whether or not he had actually converted to Christianity.
In a case where the applicant’s claim is that he is at risk because of conversion to another religion it does remain open that he could potentially be at risk on the basis of a perception of conversion, even if a conversion has not occurred, or alternatively a perception that he is a non-practising member of his former religion or that he may have abandoned his former religion.
This is discussed in some detail in NBGV v the Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 690, where Bennett J says:
48. The Tribunal then drew this distinction: ‘There is obviously a distinction between being perceived as a bad Muslim and being perceived as someone who has abandoned Islam altogether’. However, the Tribunal did not consider the applicant’s claim that he was in the latter category, despite noting the applicant’s claim that he is a ‘secularised Afghan’ and that he ‘was not practicing or had abandoned Islam’ (emphasis added).
49. The Tribunal referred to the applicant’s claim that he did not pray, did not attend a mosque and did not fast during Ramadan. The Tribunal also noted the applicant’s claim that it was Ashura and he had not participated in Muharram meetings. The applicant claimed to be a “secularised Afghan”. This was connected to a claim that Muslims behaving in a secular manner were in danger of reprisals because non-Islamic or secular conduct is unacceptable in Afghanistan today. The applicant did not limit this claim to his having resided in the West. Historically, his evidence was that he had not been active in religious practice in Afghanistan and that there had been times when he had not gone to the mosque. His conduct had changed in Australia, where he enjoyed drinking and had not been attending a mosque at all, apart from memorial services for people who had died.
50. The applicant drew a distinction between not practicing Islam and abandoning Islam. This was not just a claim of being considered secular merely because he had lived in Australia and been granted refugee status. This was secular behaviour per se.
Notably, however, in that decision there was specific evidence that provided a factual foundation for a possible finding of risk. Her Honour recounted:
5. The applicant claims that his elder brother had been one of the committee members of the Hezb-e-Wahdat in his village. Before the Taliban took over the applicant’s village, it was controlled by the Hezb-e-Wahdad.
6. Three months after the Taliban had taken control of the applicant’s district they rounded up four Hezb-e-Wahdat committee members in the area including the applicant and the applicant’s brother. The applicant claims he was beaten but was released after he denied any involvement in the Hezb-e-Wahdat. His brother has not been released. The applicant claims that the Taliban closed down the bookshop, saying that selling books was against Islam. The applicant claims that the Hezb-e-Islami had arrested him five times because he was involved in teaching people English and because the Hezb-e-Wahdat were against the Hezb-e-Islami. It would also seem that the applicant and his family were believed by Hezb-e-Islami to be members of the Nasr faction of Hezb-e-Wahdat who were particular enemies of Hezb-e-Islami.
At the end of the oral hearing I granted counsel leave to file written submissions in the weeks following the hearing should they wish to make further submissions identifying evidence (other than that rejected by the Tribunal) that may have been before the Tribunal which could potentially have founded a well-founded fear of persecution based upon either the reality or the imputation that the applicant was a non-practising Muslim.
In the further written submissions the applicant’s counsel said:
6. In any event, the Tribunal failed to consider country information before it that would have supported the applicant’s claim to have a well-founded fear of persecution based on his being a non-practicing Muslim, or being perceived as a non-practicing Muslim, including as follows:
(a) The country information stated that “apostasy from Islam and evangelization towards Muslims is strictly forbidden and may entail capital punishment” and notes that “[in] a Muslim context, apostasy is not only associated with conversion. It also includes blasphemy, for example offending the Prophet Mohammed and Muslim faith and practised.” Harm based on apostasy might therefore reasonably be viewed as extending to non-practicing Muslims, or to a person perceived to be non-practicing.
(b) The country information refers to discrimination against non-believers, as well as non-Muslim religions. For example, certain employment laws discriminate not only against non-Muslims, but also against “Muslims who do not believe in or adhere to the theory of Velayat-e Faqih, Muslims who do not practise the rulings, people who do not take part in Friday or mass prayers, and women who do not wear the full-body length veil”. This report concluded “that followers of other religions, non-believers, Muslim critics of the principle of Velayat-e Faqih, even Muslims who do not ‘practically adhere to the foundations’ of [the IRI] do not qualify for employment by the Ministry of Education or other state institutions”.
(c) The information in (b) is particularly relevant in light of the applicant’s answer at his protection interview to the question “Are these the reasons you left Iran”. The applicant responded: “Most of it yes. That’s it. … There are a lot of things they force on us. I wanted to work for the government I couldn’t. If I wanted to work for the government they would force me to say things I didn’t want to. … For example if you work for the government you have to demonstrate death to such country against other governments of the world. I didn’t want to do that. If I get a sort of job somewhere where they were staunch Muslim religion I had to grow a beard and didn’t want to. The things they tell me to do they themselves don’t do it”.
The Minister says, in response:
3. The applicant’s claim to fear persecution on the basis of his status as a non-practicing Muslim rises no higher than the statement found in the delegate’s reasons on CB 107:
With regard to the applicant’s claim that he was not a practising Muslim while he was in Iran, country information states that millions of Iranians born to Muslim parents do not attend daily prayers. … There is not a real risk that the applicant would suffer persecution because he was varied religious beliefs as a Shia Muslim in Iran.
4. On its face, this paragraph of the delegate’s reasons contains the kernel of an integer of a claim to hear harm on the basis of the applicant’s religious practices. None of the country information or evidence pointed to by the applicant in his further submissions goes so far as to support a claim that the applicant himself had a well-founded fear of persecution on the basis of his religious beliefs if he were to return to Iran. In the absence of any evidence to support the integer of a broader claim, it does not rise to the level of being a ‘substantial, clearly articulated argument relying upon established facts’ in the sense discussed by Justices Gummow and Callinan in Dranichnikov.
5. Even if that is not accepted and the Tribunal was obliged to separately deal with the claim, to the extent it was raised, as the Minister set out a paragraph [8] of his Contentions of Fact and Law, the Tribunal’s findings in paragraphs 51 and 53, even if not referring to the claim (or integer) directly in terms, are dispositive of it because they erode the entire basis for the applicant’s claim to fear harm (emphasis added):
[51]… The Tribunal consider the applicant’s various statements about his contact with the authorities contain significant inconsistencies and this cause the Tribunal not to accept that the applicant was summonsed to the basij headquarters as claims, nor that he was threatened by Haj Agha Hosseinei or any other person in relation to his religious activities. Nor does the Tribunal accept that the applicant would be of any interest to the basij or the Iranian authorities in the future on the basis of his religious activities in Iran.
…
[53]… The Tribunal does not accept that the applicant converted to Christianity while in Iran, nor that the authorities have any interest in the applicant for any reason relation to his religion. …
The difficulty for the applicant is that his evidence of events that may show a well-founded fear was not accepted. At best, this claim could only rely upon the general country information. In circumstances where there is no evidence specific to the applicant that has been accepted it appears to me that the general findings of the Tribunal (particularly those in paragraphs 51 and 53 of their reasons) are sufficient to dispose of this general basis of a claim.
In the circumstances I therefore dismiss the application.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 29 August 2014
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