SZAIW v Minister for Immigration - [2004] FMCA 54

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAIW v MINISTER FOR IMMIGRATION

[2004] FMCA 54

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in Iran – whether the decision of the RRT was unreasonable considered – RRT preferring recent Australian country information to earlier US information – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), s.417

Re Minister for Immigration; ex parte Applicant S20/2002 [2003] HCA 30
WABY v Minister for Immigration [2002] FMCA 61

Applicant:

SZAIW

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ530 of 2003

Delivered on:

5 February 2004

Delivered at:

Sydney

Hearing date:

5 February 2004

Judgment of:

Driver FM

REPRESENTATION

Solicitors for the Applicant:

Mr M Jones
Michael Jones, Solicitor

Counsel for the Respondent:

Mr J Smith

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
The Court recommends that the Minister for Immigration consider exercising her discretion under s.417 of the Migration Act 1958 (Cth) to substitute a more favourable decision.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ530 of 2003

SZAIW

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 13 February 2003 and handed down on 6 March 2003. The RRT affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant is from Iran and claimed a fear of persecution in Iran on the basis of his religion. The applicant claimed to be a convert from Islam to Christianity. The relevant background facts are set out in paragraphs 3 and 4 of written submissions prepared on behalf of the Minister by Mr Smith. I adopt those paragraphs for the purposes of this judgment:
The formal background to the RRT’s decision is set out in the outline of submissions filed for the applicant. The respondent accepts these as accurate for the purposes of this application noting that the application to the RRT for review of the delegate’s decision was made on 2 July 2001 (see first paragraph of applicant’s submissions):
The applicant is a citizen of Iran who arrived in Australia on 26 September 2000 and applied for a protection visa on 25 October 2000 (court book, page 1 ff). The application was refused by a delegate of the Minister on 27 June 2001 (court book, page 50 ff) and he applied to the RRT for review on 5 July 2001 (court book, page 59 ff).
The applicant’s claims in support of his application for protection visa were that he had converted to Christianity from Islam when he arrived in Australia in September 2000 and because of this and his desire to evangelise, he feared persecution by the authorities upon returning to Iran.
Mr Smith also deals with the RRT’s decision in paragraphs 5-7 of his written submissions. I also adopt those paragraphs save for the points that I am about to make in relation to the Tribunal's decision:
The RRT accepted that the applicant had formally converted from Islam to Christianity since his arrival in Australia; but did not accept that he had been pressured by friends and family before he left Iran because of his sympathetic comments about Christianity. Further, the RRT rejected the claim that the applicant left Iran for Australia because he had a particular interest in obtaining more information about Christianity. Although the RRT doubted that the applicant was in fact a genuine convert from Islam to Christianity, it considered the applicant’s claims on the basis that he had converted and intended to attend church and evangelise in Iran. The RRT found, on the basis of what, to it, appeared to be a very reliable source, that the applicant would be able to attend church and evangelise in Iran without risk of any serious harm: court book, page 280.9.
The RRT also considered a claim that the applicant’s wife had been visited by local authorities, the applicant would be unable to re-establish his business and also that the Iranian authorities knew of his application for refugee status.
The RRT concluded that the applicant did not have a well founded fear of persecution and accordingly that he was not a person to whom Australian owed protection obligations under the Refugees Convention as amended by the Refugees Protocol.
There is an issue whether the RRT accepted that the applicant is a genuine convert to Christianity. The presiding member stated on page 280 of court book that:
As to his actions after his arrival in Australia, I have accepted that he has been baptised and that he is perceived by the people who have provided supporting letters, and who came to the Tribunal hearing, to have genuinely converted to Christianity.
The presiding member went on to indicate that the applicant appeared to have adopted a pragmatic approach to religion generally, and in that regard, expressed some reservations about the genuineness of the applicant's asserted faith. However, the presiding member has decided this case on the basis that the applicant is a Christian who has asserted an intention to pronounce his faith in Iran should he return. That is the basis on which I will consider the matter.
The application for review filed on 9 April 2003 identifies only one ground. That is that the RRT’s finding there is no real chance that the applicant would suffer persecution in Iran for apostasy and/or proselytising was so unreasonable that no reasonable tribunal could have made such a finding. Mr Jones, for the applicant, presented written submissions and also took the opportunity to make oral submissions.
Mr Jones submits that the RRT had evidence before it that the Iranian authorities were more likely to take action against converts or apostates who attempted to proselytise compared to those who kept quiet about it. The RRT, however, relied on one particular source of information, being a person in Iran from the Apostolic Church, who Mr Jones describes as being in a vulnerable and delicate position. Mr Jones submits that the RRT fell into error in relying upon the information received from that source to the exclusion of all others. In Mr Jones' submission, the reliance on a sole source of information when other information was available to the RRT indicating a risk of persecution to persons who convert from Islam and who publicly pronounce their faith, lead the RRT to an unreasonable conclusion.
In his submissions, Mr Smith draws attention to the fact that the RRT did not ignore information before it that evangelical Christians, particularly those who have converted from Islam, face some risk. The country information available to the RRT varied in its assessment of the risk. American information, in particular, indicated that there was risk of substance. However, information available through the Australian Department of Foreign Affairs and Trade indicated that in recent times the situation in Iran has improved and that Christians, including converts from Islam, were now able to profess their faith without any significant risk. Mr Smith submits that there were good and sensible reasons to prefer the recent Australian information drawn from a reliable source in Iran to less reliable and dated US information. I agree: see WABY v Minister for Immigration [2002] FMCA 61 at [15]
The relevant information was discussed with the applicant during the course of the hearing and the applicant was given the opportunity to comment upon it. The applicant's adviser also made an oral submission drawing the RRT’s attention to information indicating a degree of risk and the adviser sought to discount information from the Assembly of God which tended to minimise the risk.
The presiding member analysed that information in some detail. On page 277 of the court book the presiding member states:
After the hearing the Tribunal made further enquires of DFAT, as a result of which further information was provided by the Post in Tehran (DFAT report 00228, “RRT Information Request IRN 15703”, 12 February 2003). It identified the source as a “senior member of the Assembly of God church in Tehran”, who confirmed that there had been no deterioration in the situation for Christians in Iran. He said that around 2,000 Bibles, religious films and CDs had been given out in buses and taxis in Tehran in the lead-up to Christmas 2002, and that no one had been questioned or charged in relation to this or any similar activities. He said that the situation for converts who publicly expressed their conversion could be “more complex” than that for other Christians, but illustrated this with an anecdote. This related to a convert who had suffered “low level harassment” by “Sunni neighbours (as distinct from officials) in a Kurdish-dominated city after he publicly declared his conversion. For that reason he moved with his family to Tehran, told his new neighbours of his conversion, and had since suffered no adverse consequences. He freely attended church in Tehran.
This information plainly had an impact on the presiding member. So much so that the decision was largely based on it. At page 280 of the court book the presiding member states:
However, if [the applicant] has indeed converted to Christianity and intends to attend church and evangelise in Iran, the independent evidence from what appears to be a very reliable source (a senior member of the Assemblies of God Church in Tehran) indicates that he can do so freely, without risk of any serious harm. I am satisfied that he can do so.
The presiding member went on to consider the possible need for the applicant to relocate to Tehran. Viewed as a whole, the decision of the RRT does not, in my view, indicate jurisdictional error on the basis of unreasonableness. The task that a presiding member had to perform was to reach the degree of satisfaction required by s.65 of the Migration Act, honestly and rationally, on the basis of the available material.
The decision of the High Court in Re Minister for Immigration; ex parte Applicant S20/2002 [2003] HCA 30 provides some useful guidance on the question of the point at which the performance of the RRT’s function may be erroneous going to jurisdiction. Whatever the correct analysis may be of what that point is, I am not satisfied that the point was reached in this case. The presiding member clearly considered all of the relevant country information. She plainly preferred the information received after the hearing from the Assembly of God source. She preferred it to the extent of permitting it to dominate her reasoning. However, the analysis by the presiding member was rational. She clearly understood the task that she had to perform. One may not necessarily agree with her analysis, but the exercise of jurisdiction by the RRT was not unreasonable. The conclusions reached by the presiding member were reasonably open to her on the material before her.
Although the question of procedural fairness was not raised in the application, for completeness I state that I am also satisfied that the proceedings before the RRT were fair. The relevant country information was obtained after the hearing but it related to an issue that was clearly discussed with the applicant during the course of the hearing.
In addition, a copy of the country information was sent to the applicant by letter dated 12 February 2003 prior to the RRT decision. The letter appears on page 256 of the court book. Although the applicant was not invited to comment on that information, the applicant was nevertheless alerted to it and could have made representations to the RRT should he have been so minded.
I find that there was no jurisdictional error in the decision of the RRT. Accordingly the application must be dismissed. However, I want to add some comments on the decision.
It is plain that apostasy in Iran carries the death penalty. In recent times it seems that Iranian law has not been enforced and that there has been an increasingly liberal attitude to minority religions and to persons who convert from Islam to another religion. Nevertheless, the law could be enforced and the Australian authorities need to have a high degree of certainty that a person being sent back to Iran will not face serious harm by reason of religious conversion and the pursuit of a minority faith publicly. Recent events in Iran indicate that there is a struggle for control between progressive secular authorities and conservative religious authorities. The outcome of that struggle is not yet clear. The conservative religious authorities maintain control on the levers of power. The likelihood of harm coming to people such as this applicant depends upon the willingness of the religious authorities to use those levers of power.
The Minister has the power under s.417 of the Migration Act to substitute a more favourable decision for the decision of the RRT should she be so minded. In my view, this is an appropriate case for the Minister to consider exercising that power. I have no authority to influence the exercise of that power and the Court has no jurisdiction to review the exercise of that power. Nevertheless, I have from time to time made a recommendation to the Minister that she consider the exercise of the power. I will do so in this case. Accordingly, I will order that the application be dismissed. I will append a recommendation that the Minister consider exercising her power under s.417 of the Migration Act to substitute a more favourable decision.
On the question of costs, the application having been dismissed, Mr Smith seeks an order for costs and invites the Court to fix costs in the sum of $4,000 on a party and party basis. A fair amount of preparation was required of the Minister for the court book. An issue of substance was raised in the application but only one issue. The written submissions prepared by Mr Smith on behalf of the Minister were relatively straightforward. There is in this case, in my view, nothing that took it out of what I would describe as a case of average complexity. In such cases I have in recent times made awards of costs of between $3,000 and $4,500. An award of costs of $4,000 in this case is within that range. I accept that an order for costs in the sum of $4,000 would be reasonable in the circumstances of this matter. I will therefore order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,000.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 12 February 2004