SAAY v Minister for Immigration and Multicultural and Indigenous Affairs

Case [2002] FCAFC 393

FEDERAL COURT OF AUSTRALIA

SAAY v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCAFC 393

SAAY v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
S 161 of 2002

TAMBERLIN, MANSFIELD and JACOBSON JJ
ADELAIDE
6 DECEMBER 2002


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 161 of 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

SAAY
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGES:

TAMBERLIN, MANSFIELD and JACOBSON JJ

DATE OF ORDER:

6 DECEMBER 2002

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1The appeal be dismissed.

2The appellant pay the respondent’s costs in the proceedings.

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 161 of 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

SAAY
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGES:

TAMBERLIN, MANSFIELD AND JACOBSON JJ

DATE:

6 DECEMBER 2002

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

THE COURT

Introduction

  1. This is an appeal from a judge of the Court dismissing an application for review of a decision of the Refugee Review Tribunal (“the RRT”) affirming a decision of a delegate of the Minister not to grant the applicant a protection visa. 

  2. The decision of the delegate was given on 31 August 2001.  The appellant applied to the RRT on 3 September 2001 for a review of the decision.  The RRT affirmed the delegate’s decision on 26 October 2001.  The application for judicial review was filed on 23 November 2001 and the primary judge’s judgment was given on 17 June 2002. 

  3. The decision of the RRT was delivered after the amendments to the Migration Act 1958 (Cth) (“the Act”) which came into effect on 2 October 2001. Accordingly, the decision of the RRT was a “privative clause” decision under s 474(1) of the Act.

    Background Facts

  4. The appellant is a citizen of Iran.  He speaks Farsi and, apparently, has a poor command of English.  He arrived in Australia on New Year’s Day 2001.  On 12 January 2001, he was interviewed by an officer of the Department.  The interview took place at the Woomera Detention Centre.  The appellant was assisted by a Farsi interpreter. 

  5. A record of interview was signed on 12 January 2001 by the appellant, the Departmental officer and the interpreter.  The form contained standard wording which, in effect, warned the appellant that he was expected to give true and correct answers to the questions and that, if different answers were given at a future interview, it could raise doubts about the reliability of his answers. 

  6. Question 13 of Part B of the form asked for the appellant’s religion.  The answer recorded on the form was “Islam”.  Question 2 of Part C asked why the appellant left Iran.  The answer is important and we set it out as follows:-

    “There is no security and…

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SAAY v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 393
Case
[2002] FCAFC 393
Decision Date

CaseChat Overview and Summary

In the case of SAAY v Minister for Immigration and Multicultural and Indigenous Affairs, the appellant, a citizen of Iran, challenged the decision of the Refugee Review Tribunal (RRT) which had dismissed his application for a protection visa. The appellant claimed to have converted to Christianity before arriving in Australia, a fact he did not disclose during his initial interview with an immigration officer. The case was heard in the Federal Court of Australia, where the court had to determine whether the RRT's decision was legally sound, particularly in light of the appellant's claim of a religious conversion which he did not disclose at his initial interview.

The primary legal issue was whether the appellant had presented a credible and convincing account of his conversion to Christianity, and if his failure to disclose this during his initial interview could be explained. The court needed to assess the consistency and plausibility of the appellant's claims, particularly given the significant risks associated with conversion to Christianity in Iran. Additionally, the court had to consider the RRT’s assessment of the appellant’s evidence and whether the tribunal’s decision was open to review under the Migration Act 1958 (Cth).

The court found that the RRT’s decision was well-reasoned and supported by the evidence. The tribunal did not accept the appellant’s explanation for not disclosing his Christian faith at the initial interview, noting that a person fleeing persecution would likely mention such a critical detail. The court upheld the RRT’s view that the appellant’s account of his conversion was not convincing and lacked specific details that would substantiate his claims. The court also found that the RRT had properly considered the appellant’s evidence and the context of his claims, leading to a conclusion that the appellant had not demonstrated a credible fear of persecution if returned to Iran.

The Federal Court dismissed the appeal and ordered the appellant to pay the respondent’s costs in the proceedings. This decision underscored the high threshold that applicants must meet to establish credible claims of persecution, particularly when their accounts involve significant omissions or inconsistencies.

Orders

Orders of the court

1 The appeal be dismissed.

2 The appellant pay the respondent’s costs in the proceedings.

Background

Background to the litigation

The decision of the RRT was delivered after the amendments to the Migration Act 1958 (Cth) (“the Act”) which came into effect on 2 October 2001. Accordingly, the decision of the RRT was a “privative clause” decision under s 474(1) of the Act. Background Facts The appellant is a citizen of Iran. He speaks Farsi and, apparently, has a poor command of English. He arrived in Australia on New Year’s Day 2001. On 12 January 2001, he was interviewed by an officer of the Department. The interview took place at the Woomera Detention Centre. The appellant was assisted by a Farsi interpreter. A record of interview was signed on 12 January 2001 by the appellant, the Departmental officer and the interpreter. The form contained standard wording which, in effect, warned the appellant that he was expected to give true and correct answers to the questions and that, if different answers were given at a future interview, it could raise doubts about the reliability of his answers. Question 13 of Part B of the form asked for the appellant’s religion. The answer recorded on the form was “Islam”. Question 2 of Part C asked why the appellant left Iran. The answer is important and we set it out as follows:-“There is no security and no law. The government officials are against each other. There is no financial security. No medical services are available unless you pay a lot of money. When I had a chest operation and when my wife gave birth they charged us two months earning. This is the summary of the Iran situation. I had personal problems with the religious fanaticism of the government. What my mind does not accept I cannot believe. There are many superstitions in this type of religious problems. Human beings have no worth in Iran.” Question 5 of Part C asked whether the appellant had any reasons for not wishing to return to Iran. This answer is also important. It was as follows:-“Iran is against human rights. In other parts of the world they have hospitals for animals. In Iran they do not care about human beings.” A tape recording was made of the interview. The appellant has made a number of requests for access to the tape recording but he has not been provided with the tape. We deal with this in more detail under the heading “The Appellant’s Submissions”. On or about 24 July 2001, the appellant lodged an application for a protection visa. He stated in the application that he was a Christian. In his supporting statement, he said that he had been become a Christian in Iran several years before his departure for Australia. He said that he had a Christian friend in Iran who he had known since high school. He said that a few years before his departure he told his friend that he wanted to become a Christian. He said that the friend discussed the issue with the friend’s family because it was dangerous for both of them. He said that the friend’s mother asked him a series of religious questions and his statement continued as follows:-“At the end she (the friend’s mother) said ‘myself and her son are witness that you are Christian but we cannot give you any certificate.’”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The application for a protection visa was supported by a submission from the appellant’s migration agents, Messrs Macpherson and Kelley (“M & K”). M & K were alive to the fact that, at the initial interview, the appellant had not stated that he was a Christian. M & K endeavoured to explain the discrepancy by stating that:-“He did not mention his Christian faith and all of his claims at the initial interview because he was told that he would be provided with representation and would have a further opportunity of stating his claims in detail.”The decision of the RRT The appellant gave oral evidence before the RRT on 18 October 2001. The RRT asked him to explain the apparent contradictory statements about his religion. The appellant said there was no contradiction. He said that he did not tell the interviewer at his first interview that he believed in Islam and the reference to Islam as his religion was a mistake. He said that he told the interviewer that he did not believe in Islam and that the written record of interview was incomplete. He suggested that the RRT listen to the tapes but the RRT did not do so. The RRT dismissed the application for review because it did not accept that the appellant had converted to Christianity before he left Iran. The RRT observed that the appellant did not mention his conversion to Christianity at the first interview. Moreover, the RRT said that he did not give a convincing explanation for his failure to do so. The RRT said, at page 18 of its reasons:-“The Tribunal does not accept that a person who was at such a risk would neglect to tell their story accurately, if briefly. They would not generalise it: they would not complain of religious fanaticism and express religious skepticism (sic) but neglect to say how this affected them in particular because they were Christian. They would not speak generally of political rigidity, and the country’s economic problems, and failings in social policy, but neglect to mention a political dispute that threatened to land them in Court.” (AB 83) The RRT gave reasons for rejecting, as unconvincing, the appellant’s account of, and reasons for, his conversion to Christianity. The RRT noted that conversion to Christianity in Iran is a drastic step. The RRT was of the view that the appellant’s evidence of his conversion as set out in para [10] above was artificial. Nor could the appellant satisfy the RRT that there was any crisis or revelatory experience which explained the reasons for his conversion. The RRT rejected as “far fetched” the appellant’s claim of a political and religious dispute at his workplace as the explanation for his decision to leave Iran. The RRT accepted that the appellant would be “uncomfortable” as a sceptic living in an Islamic Republic. It also accepted as “possible” his evidence that he had missed out on a place at University through lack of Islamic connections but it did not accept that these things constituted persecution. Nor did the RRT accept that the appellant would be persecuted in Iran just because he is not devout or that he had been discriminated against at work because he was not a practising Muslim.

Ratio Decidendi

Legal Principle Established

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