SAAX v Minister for Immigration and Multicultural Affairs

[2002] FCA 627

FEDERAL COURT OF AUSTRALIA

SAAX v Minister for Immigration & Multicultural Affairs
[2002] FCA 627

No issue of principle

SAAX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

S 212 OF 2001

O’LOUGHLIN J
CANBERRA (HEARD IN ADELAIDE)
17 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 212 OF 2001

BETWEEN:	SAAX APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	O’LOUGHLIN J
DATE OF ORDER:	17 MAY 2002
WHERE MADE:	CANBERRA (HEARD IN ADELAIDE)

THE COURT ORDERS THAT:

1.        The Application be dismissed.

2.The Applicant pay the Respondent’s costs, such costs to be taxed in default of agreement.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 212 OF 2001

BETWEEN:	SAAX APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	O’LOUGHLIN J
DATE:	17 MAY 2002
PLACE:	CANBERRA (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT

1. The applicant arrived in Australia in January 2001.  Six months later, in July 2001, he lodged an application for a Protection Visa under the Migration Act 1958 (Cth) (“the Act”) with the Department of Immigration and Multicultural Affairs (“the Department”). That application was unsuccessful as was his subsequent application to the Refugee Review Tribunal (“the Tribunal”). He how seeks the intervention of this Court.

2. At his arrival interview on 13 January 2001, which took place before he had lodged an application for a Protection Visa, the applicant said that he came from Isfahan in Iran and that he was a Shi’a Moslem.  When he lodged his application for a Protection Visa however, he stated that he was a Christian.

3. The applicant said that he had four siblings who live with his parents in Iran.  He is unmarried and was a professional wrestler and later, a self-employed truck driver whilst in Iran.

4. According to the findings of the Tribunal, the applicant left Iran because of a lack of freedom with respect to matters of clothing, personal appearance and social life.  The applicant acknowledged that nothing had happened to him personally, but nevertheless, so he said, those restrictions existed and if he disobeyed them he would be punished.  He also said that he left his country because of the intense economic crisis; he felt that he had an uncertain future in Iran.  He said that he had started planning to leave Iran some two years earlier and he had chosen Australia because he had heard “a lot of good things about it”.

5. The applicant said in his evidence that he had been raised in a very religious Islamic family; his father was a fanatic and had forced the applicant to learn religious practices, prayers and rituals.  However, as the applicant grew up, he became disheartened with Islam – but he did not know of any other religion.  He said that his father frequently insulted and teased him about his lack of religion and accused him of ruining his reputation.  He said that he was expelled from school because “of his beliefs” and that being expelled, he could not continue his education.  He said that he became friendly with a girl in Isfahan who was an Armenian Christian.  It was through her that the applicant said that he chose Christianity.  The Tribunal stated in its reasons that when the applicant sought his father’s permission to marry the girl:

   “His father reacted as though he had been electrocuted.  He insulted the applicant, the girl, Christianity and the Bible.  The applicant defended the girl and Christianity and said he had chosen them, and insulted Islam.  His father threatened to tell the authorities.  The applicant knew his father would carry out his threat.  He left the house and went that day for his passport.  He called his sister who told him his father had informed the authorities about him and that he should not come home.  The following day he left Iran.”

   The Tribunal further recorded that on the day after his arrival in the Woomera Immigration Reception and Processing Centre, the applicant contacted Father Monaghan, the local Catholic priest.  He had attended Father Monaghan’s religious classes for some seven months prior to his Tribunal hearing.  The applicant claimed that in Iran, apostasy is punishable by death.  In his statement, which accompanied his application for a Protection Visa, the applicant included a certificate to the effect that he had been accepted into the Order of Catechumens of the Catholic Church and he also included an extract from Shari’ah Law on the crime of apostasy.

6. The Tribunal asked the applicant why he had not disclosed his claims about Christianity at his arrival interview.  The Tribunal addressed this issue in its reasons in the following manner:

   “The applicant said he did not feel quite safe to explain his situation.  He could not concentrate on what was going on.  He was concerned about the presence of other Iranians in the Centre, and was not sure if his revelations would be kept confidential.  Also he was not aware what the definition of a refugee was; if he had known the importance of the interview he would have told the whole story.”

7. The Tribunal questioned the applicant about his knowledge of Christianity at the time when he was still in Iran.  The Tribunal recorded that the applicant:

   “… mentioned a number of basic tenets and principles of Christianity, described the Catholic Mass, and demonstrated familiarity with some of the principal celebrations in the Christian calendar.”

8. A Sister Anne Higgins gave evidence before the Tribunal.  She is a Catholic nun who gave religious lessons to the applicant.  The Tribunal did not, in any way, question the evidence of Sister Anne and went so far as to record Sister Anne’s opinion that the applicant was genuine in his desire to convert to Christianity.  However, the Tribunal did not share Sister Anne’s opinion about the applicant.  It acknowledged that she was a valuable witness and that her answers displayed a “serious analysis of the issues raised by conversion of Islamic detainees”.  The Tribunal went so far as to say that “from the church’s point of view there is no uncertainty about the applicant’s faith”.  However, the Tribunal would not accept that the applicant is now a Christian, observing that “as a fact finder, it looks at the applicant’s claimed conversion from a greater distance …”.  This was a somewhat bold decision by the Tribunal in view of the fact that it had not rejected Sister Anne as a witness of credit and substance.  Nevertheless, it remained within the province of the Tribunal to come to that conclusion.  In addition, the Tribunal recorded that, subsequent to the hearing but prior to the delivery of its reasons, it received advice that the applicant had been baptised into the Catholic religion.

   THE FINDINGS OF THE TRIBUNAL

9. The Tribunal found that the applicant is an Iranian national and it accepted that apostates face a real chance of religious persecution in Iran; Iran is an Islamic Republic where Muslims do not have a freedom to choose other religions.  As the Tribunal poignantly stated:

   “It is not at all comforting to know that an Apostate is rarely executed.  And Christianity is not a religion that can properly be practiced privately or in secret.” (bold emphasis added)

10. Nevertheless, the Tribunal did not accept that the applicant was an apostate.  The Tribunal would not accept that the applicant had a Christian girlfriend in Iran nor would it accept that he had an argument with his father about Christianity and that his father had planned to report him to the authorities.  The Tribunal went so far as to conclude that it did not accept that the applicant had any serious interest in Christianity whilst he was in Iran.  It explained its conclusion by saying that it put considerable weight “on the statements made by the applicant in his arrival interview”.  It then added that it was not “persuaded by the applicant’s explanations for the failure to mention a personal experience with Christianity during the arrival interview”.

11. Counsel for the applicant argued that the Tribunal should have allowed for the possibility that its findings about the applicant’s credibility may have been incorrect.  This was an invitation to the Court to examine whether the “What if I am wrong?” test should be applied in these proceedings.  That test originated from a passage in the joint judgment of Brennan CJ and Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Guo (1996-1997) 191 CLR 559 at 576 (“Guo”):

    “It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.  If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution.”

12. This does not mean that it is necessary for the Tribunal, in every case, to ask itself the question “What if I am wrong”?  In Guo, for example, the Tribunal had not articulated any such question, but its determination was not set aside.  It was not set aside because the High Court was satisfied that the Tribunal had no doubt that its findings of fact were correct; hence the probability of error in its findings was insignificant.  In those circumstances, the Tribunal was not bound to consider, as a separate exercise, whether its findings were wrong.

13. In Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at par 108 (“Rajalingam”) Sackville J said of the Tribunal and its reasons that a fair reading indicated that:

    “… it had no real doubt about the conclusion that it had reached.”

    That is a statement which, with respect, I would adopt with respect to the reasons of the Tribunal that are presently under review.  The applicant, whose circumstances were being considered in Rajalingam, was a Ms Demir and the question of substance was whether certain documents that she had produced were genuine.  The Tribunal had concluded that they were not.  Sackville J went on to say:

    “A fair reading of its reasons shows that it had no real doubt that its finding was correct.  There was therefore no occasion for it to consider the chances that the documents were genuine and that Ms Demir was in truth being sought by the Turkish authorities …”.

14. His Honour explained that if the Tribunal had concluded that it could not resolve the issue of authenticity, or that it was only slightly more probably than not that the documents were fabricated, it would have been bound to take into account the possibility that the documents were authentic when assessing whether Ms Demir had a well-founded fear of being persecuted if she were to return to Turkey.  That additional exercise was not, however, necessary in this case because of the strong conclusion at which the Tribunal had arrived.

15. In my opinion, the Tribunal firmly evaluated the explanation that had been advanced by the applicant.  It weighed up his evidence about his fear of expressing himself in front of an interpreter; the Tribunal was conscious of the tension in the Detention Centre between fanatical Muslims and others but, in the end, it formed its opinion, as it was entitled to when it said:

    “It does not accept that a person who had genuine fears of persecution would, due to the uncertainty about the process or concern about confidentiality, deliberately refrain from telling of that critical incident or fact that will cause them to be harmed if they go home.  It does not accept that such a person would positively obscure his case by saying that nothing had happened to him.”

16. It must be acknowledged that another person might have come to a different conclusion.  However, that is not the test that is to be applied by a review court.  The conclusion at which the Tribunal arrived was one that was properly open to it on the material that it possessed.

17. The application must be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Loughlin.

Associate:

Dated:            17 May 2002

Counsel for the Applicant:	Mr D Agresta
Solicitor for the Applicant:	Condello & Co.
Counsel for the Respondent:	Dr MA Perry
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	12 April 2002
Date of Judgment:	17 May 2002