W441/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 102; [2002] FCA 453 (17 April 2002)

Last Updated: 9 May 2002

W441/01A v Minister for Immigration & Multicultural Affairs

[2002] FCAFC 102

W441/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 453

NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)

The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

* All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.

FEDERAL COURT OF AUSTRALIA

W441/01A v Minister for Immigration & Multicultural Affairs

[2002] FCA 453

MIGRATION - Decision of the Refugee Review Tribunal refusing protection visa - decision of primary judge affirming decision of Tribunal - whether Tribunal decision involved jurisdictional error - whether Tribunal limited its assessment of the risk of persecution to the likelihood of the appellant being persecuted for proselytising as an apostate if returned to Iran.

MIGRATION - Refugee - application for review of Tribunal decision - lodged out of time - objection as to competency - whether there were "special reasons" justifying extension.

Migration Act 1958 (Cth) ss 5, 36(2), 476(1)(b), (c) and (e)

Federal Court Rules O 52 r 15

Jess v Scott (1986) 12 FCR 187

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1

W441/01A v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W441 OF 2001

LEE, COOPER AND NICHOLSON JJ

PERTH

17 APRIL 2002

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W441 OF 2001

On appeal from a Judge of the Federal Court of Australia

BETWEEN:	W441/01A APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	LEE, COOPER AND NICHOLSON JJ
DATE OF ORDER:	17 APRIL 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The time for the filing of the appellant's notice of appeal against the orders dismissing his application for judicial review, including the order for costs made on 10 August 2001, be extended to and including 14 September 2001.

2. The notice of motion filed by the respondent seeking the striking out of the appeal as incompetent be dismissed.

3. The appeal be allowed.

4. The orders made on 10 August 2001 dismissing his application for judicial review including the order as to costs be set aside and in lieu thereof it be ordered that :

(i) the decision of the Refugee Review Tribunal made on 2 April 2001 be set aside;

(ii) the matter be remitted to the Refugee Review Tribunal for reconsideration according to law;

(iii) the respondent pay the appellant's costs, if any, of the application.

5. The respondent pay the appellant's costs, if any, of the appeal.

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	W441 OF 2001

On appeal from a Judge of the Federal Court of Australia

BETWEEN:	W441/01A APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	LEE, COOPER AND NICHOLSON JJ
DATE:	17 APRIL 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1 On 19 April 2001, the appellant made application in this Court for judicial review of a decision of the Refugee Review Tribunal ("the RRT") not to grant him a Protection (Class XA) visa under the Migration Act 1958 (Cth) ("the Act"). The application was dismissed with an order for costs against the appellant on 10 August 2001. The appellant filed a notice of appeal on 14 September 2001.

2 By notice of motion filed 13 November 2001, the respondent sought orders dismissing the appeal as incompetent. The ground relied upon was the failure of the appellant to file his notice of appeal within the time limit provided by O 52 r 15(1) of the Federal Court Rules. Further, the respondent opposed the granting of any extension of time under O 52 r 15(2) within which to file and serve a notice of appeal.

3 There is no issue that the appellant has not complied with the time limit in O 52 r 15(1). Unless an extension of time is granted under r 15(2), the appeal as instituted is incompetent. To obtain an extension of time there must exist reasons to depart from the general rule that appeals are to be filed and served within twenty-one days of the judgment being pronounced: Jess v Scott (1986) 12 FCR 187 (FC) at 195.

4 The time for filing the notice of appeal expired on 1 September 2001. Although the material is silent as to the circumstances which led the Perth Registry of the Court on 4 September 2001 to fax to the appellant copies of the forms required in order to lodge an appeal, the reasons for judgment were not certified until 29 August 2001.

5 The appellant is an Iranian citizen who arrived in Australia on 20 February 2000. He is being detained at the Port Hedland Immigration Reception and Processing Centre. He has advised the Court that there is no interpreter available to him at Port Hedland and any materials he received were in English and he was unaware of any relevant time limits. Such assistance as he had in respect of his appeal was from other detainees.

6 The respondent submits that whether or not special reasons for the purpose of O 52 r 15(2) have been made out, as a matter of discretion no order extending time should be made because the proposed appeal is without merit and is unlikely to succeed. In those circumstances, the respondent submits there is no injustice to the appellant in refusing to extend the time within which to file and serve an appeal.

7 The respondent submits that the appellant at first instance, and on appeal, seeks a review of his application on the facts, and as such did not, and presently does not, identify an error of law on the part of the RRT.

8 In order to satisfy the criteria for a Protection (Class XA) visa, the appellant must establish that he is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol: s 36(2) of the Act. The "Refugees Convention" and "Refugees Protocol" are defined in s 5 of the Act and referred to respectively as "The Convention relating to the Status of Refugees done at Geneva on 28 July 1951" and "The Protocol relating to the Status of Refugees done at New York on 31 January 1967". Australia, as a Contracting State to the Convention, has accepted the obligations imposed upon it by accession to the Convention. One such obligation is the direct obligation to protect a person who satisfies the definition of "a refugee" in Sub-Article 1(A) of the Convention. "A refugee" is a person who :

"... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable, or owing to such a fear, is unwilling to avail himself of the protection of that country."

9 The appellant entered the Australian "migration zone" on 20 February 2000 without authority. He thereby became an "unlawful non-citizen" and was placed in immigration detention.

10 The appellant in his application for a protection visa claimed that he had a well-founded fear of persecution for reasons of religion if he returned to Iran. He claimed that he was an Armenian Catholic, as had his parents been when they migrated to Iran from Russia. It was his evidence that in 1979, post the revolution in Iran, his family, including himself, were pressured to convert to Islam, which they did. Thus, at the age of twelve, he became a Shi'ite Muslim. He gave further evidence that upon his attaining his majority at eighteen, he took steps in Iran directed towards reverting to Christianity and to his practising as an Armenian Catholic.

11 The RRT was not satisfied that while he was in Iran the appellant actually converted from Islam to Christianity. That is, it was not satisfied that he became an apostate prior to his leaving Iran. However, the RRT was satisfied that since arriving in Australia, the appellant had returned to his Armenian Christianity and was in consequence an apostate.

12 In assessing the appellant's claim on the basis of the appellant being an apostate, the RRT relied upon two DFAT documents. The first was a country information report dated 11 January 1996, which stated :

"In relation to conversion from Islam, Shari'at (Islamic law) is quite clear. Converted Muslims are considered apostates, and conversion from Islam is punishable with death. However, as to the prescribed punishment, a distinction is made. Those born from Muslim parents (even if only one of them is a Muslim), shall be executed. Those born from non-Muslim parents who had converted to Islam and have converted again to another religion, shall first be invited to repent. In the event they refuse, they shall be executed. In connection with women, it appears that death penalty is not applied and they shall be imprisoned and lashed at each prayer.

In practice, there have been some executions especially in the early years after the establishment of the Islamic regime. However, as to the practice of the recent years, a distinction has to be made. Those who convert without making it publicly known and who keep a low profile, are not subjected to harassment, however, those who convert and who publicly practice their new faith, can be subjected to harassment. The said harassment may entail violation of their socio-economic rights, but normally does not entail execution. As to those Muslims who convert to Christianity and become priests, owing to the fact that they propagate another religion and become agents of conversion, their conversion is punishable with death. Two such cases have been reported in 1994."

13 The second document was a DFAT Country Profile on Iran dated March 1996. It said :

"2.3.17.12 While the traditional Christian communities (Armenian and Assyrian) do not proselytise and even discourage those Muslims who may express an interest in conversion, the Catholic, Protestant and Evangelical missionary churches have tended to face greater problems with the authorities on account of their links with the West and the greater importance placed on proselytising. Any action interpreted as manifesting an intent to `influence a Muslim to convert faith' is a serious criminal offence both for the priest and the Muslim concerned. Definition of this provision in the criminal code is moreover arbitrary and ambiguous. Its application is intended to harass. Converts are generally tolerated as long as they maintain a very low profile. However, those working in Government and revolutionary organisations may experience workplace harassment, discrimination and possible dismissal if it becomes known that they have converted. The most common source of pressure on converts is from `concerned family members.'

2.3.9.1 It is difficult to make general assessments about the treatment of apostates. Under traditional Muslim law, a Muslim leader must issue a formal decree identifying an apostate and allowing his/her blood to be spilt before that individual can be physically harmed. While it is popularly believed that the penalty for apostasy under Islamic law is death, this seems open to interpretation, as indicated by comments of senior judicial authorities at a human rights seminar held in Tehran in 1994.

2.3.9.2 Death sentences for apostasy have traditionally been issued to Baha'is and occasionally Christian converts who have been active in proselytising. However, the death sentence has rarely been carried out for apostasy alone. The majority of religious judges appear reluctant to deliver an execution order for this `offence' alone. People who do publicly convert away from Islam would however be harassed, possibly imprisoned and threatened with death, if they had been found to be active in proselytising among Muslims. The most famous recent case was that of "Mehdi Dibaj, a long time convert and Assembly of God pastor, sentenced to death in 1993, but later given a reprieve and released. In June 1994, he was found murdered. The Government blamed the MKO. Those who worship privately and maintain a low profile will be very unlikely to suffer any adverse attention from the authorities for their conversion, unless they are involved in other activities which would attract security interest. [Tribunal emphasis]."

14 The RRT found that :

"Since arriving in Australia the applicant has made a genuine conversion [back] to Christianity. However, it is clear from the independent evidence that Armenians do not proselytise, and the evidence provided by the applicant's Priest, Father Monaghan, and the applicant himself suggest he is not given to proselytising, nor `radical demonstrations' of his faith. He did not proselytise prior to departing Iran, and he has, by his own admission, not been outspoken about his religion, has not forced his ideas on anyone and has not told anyone back in Iran of his conversion.

In light of the evidence available to the Tribunal it cannot be satisfied that the applicant has any intention to proselytise upon return to Iran, and finds rather, based on the available evidence, that he would maintain a low profile. The independent evidence suggests that converts who maintain a low profile are tolerated and are not subject to harassment. Bearing in mind the case law discussed above, and in light of the independent evidence, the Tribunal is satisfied that the applicant - despite being apostate, would be tolerated in Iran, and would [be] able to practice his religion in Iran without harassment. The Tribunal cannot therefore be satisfied that there is a real chance that the applicant would face harm, amounting to persecution, in the foreseeable future in Iran for reason of his Religion [because he is apostate]."

15 At first instance in this Court his Honour the trial judge found that :

"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."

16 The question before the RRT was not limited to whether or not the appellant would be at risk of persecution for proselytising amongst Muslims if he returned to Iran. Such a formulation fails to address the wider question of whether the appellant who, as he says before this Court, is known as a Shi'ite Muslim in Iran could, if he returned to Iran, without persecution publicly practice his new faith as an Armenian Catholic by attending services in the ordinary way at the Armenian Catholic Church as part of his religious observance.

17 The RRT in its reasons does not specifically address the wider question. When it finds that the appellant would "maintain a low profile", it does so in the context of refraining from engaging in proselytisation. It then uses the following part of the DFAT report :

"... Those who convert without making it publicly known and who keep a low profile, are not subjected to harassment. ...""

to ground the finding that he could practice his religion, although being apostate, without harassment because he would adopt a low profile. The DFAT report however uses the notion of keeping a low profile to mean something less than public practice of the new faith and something different from proselytising. Indeed, the DFAT report of 11 January 1996 specifically asserts that those who convert and publicly practice their new faith can be subject to harassment. Counsel for the respondent conceded that the reference described could amount to persecution for the purpose of the Convention. The later report of March 1996 also maintains the distinction between "proselytising" at one extreme and the other extreme of maintaining "a very low profile" by persons "who worship privately and maintain a low profile". The report does not deal with the consequences of public worship by converts, as for example, by the attendance at religious services at the Armenian Catholic Church without the worshipper being involved in any conduct which was regarded as proselytising.

18 In all the circumstances, we are satisfied that the RRT, in assessing the risk to the appellant of persecution on account of his Christian beliefs, impermissibly limited its assessment of the risk of persecution to the likelihood of the appellant being persecuted for proselytising as an apostate if he returned to Iran. There was material in the DFAT report of 11 January 1996, which the RRT accepted and relied upon, dealing with public practice of a new faith which, if it applied to the circumstances of the appellant, may have given support to his claim to a well-founded fear of persecution for reasons of religion. The RRT did not assess the risk of persecution to the appellant by reference to that material. In consequence, the process before the RRT involved jurisdictional error and there was reviewable error under pars (b), (c) and (e) of s 476(1) of the Act: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 at [81] - [85].

19 It is unclear whether the matter was argued at first instance on the basis of jurisdictional error, or whether it was only argued on the narrower basis of whether or not there was any evidence that would support a finding that the appellant would not be at risk of persecution if returned to Iran because he would not engage in proselytising. However, the existence or not of jurisdictional error is a question of law. It has been fully argued by counsel on behalf of the respondent, and, as we have found, is a ground of substance which would entitle the appellant to have the decision of the RRT set aside.

20 The appellant filed his notice of appeal thirteen days late. It may be inferred in his favour that in respect of his appeal he is dealing with a legal system which is foreign to him and operates in a language other than his own. He is in detention, unrepresented, left to his own devices with such assistance as he can get from other detainees to prosecute his appeal in circumstances where it appears that the certified reasons for judgment may not have been available until three days before the time for filing an appeal expired. We are satisfied that special reasons exist for extending the time for the filing of his appeal to and including 14 September 2001.

21 Having regard to our conclusion that jurisdictional error was involved in the decision-making process of the RRT, it would be unjust and to the prejudice of the appellant not to extend the time under O 52 r 15(2) of the Federal Court Rules and to allow the appeal.

22 The reasons of this Court are distributed throughout the world on the Internet and, exercising appropriate caution, the Court has not identified the appellant in the title to the proceeding or in the reasons.

23 The Court makes the following orders :

1. The time for the filing of the appellant's notice of appeal against the orders dismissing his application for judicial review, including the order for costs made on 10 August 2001, be extended to and including 14 September 2001.

2. The notice of motion filed by the respondent seeking the striking out of the appeal as incompetent be dismissed.

3. The appeal be allowed.

4. The orders made on 10 August 2001 dismissing his application for judicial review including the order as to costs be set aside and in lieu thereof it be ordered that :

(i) the decision of the Refugee Review Tribunal made on 2 April 2001 be set aside;

(ii) the matter be remitted to the Refugee Review Tribunal for reconsideration according to law;

(iii) the respondent pay the appellant's costs, if any, of the application.

5. The respondent pay the appellant's costs, if any, of the appeal.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lee, Cooper and Nicholson.

Associate:

Dated: 17 April 2002

	The appellant appeared in person
Counsel for the Respondent:	Mr P R MacLiver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 February 2002
Date of Judgment:	17 April 2002