Shahram Dorraji v Minister for Immigration & Multicultural Affairs [2002] FCA 765

FEDERAL COURT OF AUSTRALIA

Shahram Dorraji v Minister for Immigration & Multicultural Affairs [2002] FCA 765 MIGRATION – Application for an order of review of an order of review – whether the Refugee Review Tribunal failed to take into account relevant considerations Migration Act 1958 (Cth) s 476 Abedi v Minister for Immigration and Multicultural Affairs [2001] FCA 1430 followed Applicant Z v Minister for Immigration and Multicultural Affairs [2001] FCA 325 distinguished Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 applied SHAHRAM DORRAJI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS No S 146 of 2001 O'LOUGHLIN J 17 JUNE 2002 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 146 OF 2001

BETWEEN: SHAHRAM DORAJI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: O'LOUGHLIN J

DATE OF ORDER: 17 JUNE 2002

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1 The Application be allowed. 2. The Application be remitted to the Tribunal for further consideration according to law. 3. The Respondent pay the Applicant's costs which costs are 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 146 OF 2001

BETWEEN: SHAHRAM DORAJI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: O'LOUGHLIN J

DATE: 17 JUNE 2002

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The applicant is a national of Iran. He is single, aged twenty-four and he is a member of the Sabian Mandean faith. He arrived in Australia on 22 March 2001 and on 23 April 2001 he lodged an application for a Protection Visa with the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"). That application was refused by a delegate of the Minister on 5 June 2001. Thereafter, the applicant sought review of the delegate's decision by the Refugee Review Tribunal ("the Tribunal") but once again he was unsuccessful. On 5 September 2001 he filed an application in this Court seeking a review of the Tribunal's decision. As his application to this Court was filed before the introduction of the most recent amendments to the Migration Act 1958 (Cth) ("the Act"), the issues in his case are to be determined without regard to the regime which is now centred upon the "privative clause decision". 2 The basis upon which the applicant claims refugee status is his assertion that he has been and will be the subject of discrimination and persecution in Iran because of his religious beliefs. 3 In its reasons for its decision the Tribunal stated that the applicant had claimed that his religion was not a recognised faith in Iran; he had further claimed that he had been often the subject of ridicule; that he was regarded as "impure";and that he was not allowed to touch anything that a Muslim person would also handle. The Tribunal further noted the applicant's claim to the effect that Sabian Mandeans were a particular target on Muslim holy days. According to the applicant, Muslims would break windows, dump rubbish or urinate outside his family home. He instanced in his evidence before the Tribunal other examples of discrimination and persecution such as his claim that a church that had been used by members of his faith had been closed down and that Muslims "occasionally threw fruit or other objects at worshippers …". 4 The claims of the applicant were summarised in the submissions which were filed on his behalf in the following terms: · Discrimination in medical attention to his father with fatal consequences; · Discrimination in education with restricted higher education for himself and harassment at school for his sister; · Discrimination in employment with limitations for him on the sort of occupations he could follow; · Discrimination and persecution in the choice of a spouse; · Persecution of him and his co-religious in the exercise of their faith, taking the form of the prevention of the building of a place of worship and verbal and physical abuse during religious observance; and · Persecution of him by the family of a Muslim girlfriend with whom he had a relationship – when that relationship was discovered it led to serious assaults on her and on the applicant's family and the laying of false charges against him. The applicant had raised these matters in his evidence before the Tribunal; he had also claimed that his sister had been pressured by school authorities to convert to the Muslim religion. It was because of this pressure that his mother felt obliged to remove her from school and thereby cut short her education. The applicant claimed that some sixteen years ago his father suffered a heart attack and was denied medical treatment at the hospital because, being a Sabian Mandean, he was regarded as unclean.

5 The applicant told the Tribunal that he had fallen in love with a sixteen year old Muslim girl; he said that they had had a close relationship but it was not sexual. The relationship was covert in the sense that they made every effort not to be seen publicly or, at least, by anyone who might identify them because a relationship such as theirs was forbidden in Iranian society. It was the applicant's claim that his relationship with his girlfriend was eventually detected by one of her brothers. When the applicant became aware of this, he moved to the home of an uncle to avoid the wrath of the girlfriend's family. He also claimed that he later heard that his girlfriend "was pushed from a second storey balcony by her brother and father". He claimed that his girlfriend's arm and hip were broken in the fall. He also claimed that his girlfriend's family attacked his mother and younger brother. He said that his brother's nose and his mother's arm were broken and that they also sustained serious bruising. He further claimed that his girlfriend's family had vowed to kill him. He said that his brother recently informed him by telephone that his girlfriend's family had accused him of having had a sexual relationship with her. He told the Tribunal that the authorities would now be intent on charging him with serious offences that would lead to him being stoned to death as the word of a Muslim is never doubted. He said that a German Christian has recently suffered such a fate in comparable circumstances.

the tribunal's findings 6 The Tribunal accepted that the applicant had been baptised into the Sabian Mandean faith and that he had practised his faith. The Tribunal then addressed the subject of discriminatory treatment and whether it amounted to persecution, pointing out that that question had been canvassed by the Office of the United Nations High Commissioner for Refugees in the Handbook on Procedures and Criteria for Determining Refugee Status, January 1992. The Tribunal then quoted a lengthy passage from the work, the net effect of which was that discrimination does not always amount to persecution. It will, however, constitute persecution "if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practice his religion, or his access to normally available educational facilities". 7 In assessing the personal circumstances of the applicant, the Tribunal noted that he had received a secondary school education and had later enjoyed remunerative employment in the private sector. It accepted that he had encountered some discrimination in education and that his religion might have been a prominent factor in denying him entry to a university. The Tribunal noted that, whilst his sister may have come under some pressure to convert to the Muslim faith, he had not himself been "subjected to the same pressure …". 8 As to the medical treatment, or lack thereof, of his father, the Tribunal said this: "There is no independent evidence to suggest that Sabian Mandeans are denied medical treatment. The Tribunal notes that the applicant was aged only seven years when his father was taken to hospital after suffering a heart attack. The fact that his father was actually taken to hospital for treatment suggests there was no pattern of denying treatment to Sabian Mandeans."

9 At that stage in its reasoning, the Tribunal concluded that the applicant did not encounter consequences that amounted, in fact or degree, to persecution in his education or in his employment. The Tribunal was not satisfied that the applicant's father had been denied medical treatment by reason of his religion or on any other Convention ground. 10 The Tribunal then proceeded to state its conclusions on the treatment of Sabian Mandeans as a religious minority in Iran. In view of the fundamental nature of the complaints that have been made by the applicant, it is timely to point out that at an earlier stage of its reasonings the Tribunal had said this: "Apart from the oral evidence of the applicant at the hearing, the Tribunal had available to it material contained on the departmental and Tribunal files, including a taped interview between the applicant and a departmental officer, and country information referred to below."

The country information to which the Tribunal referred commenced with a discussion of the Report 77/01 of 26 February 2001 of the Australian Department of Foreign Affairs and Trade ("DFAT"). The quoted extract was as follows:

"There is only limited information about the Sobian (sic) Mandians (sic) available in Tehran. Our assessment of the circumstances in which Sobians live remains unchanged from that reported previously [CX 46890] … To the best of our knowledge there is no systematic basis for harassment or persecution of Sobians other than that referred to previously [CX 46890]. The extent to which members of the Sobian community are exposed to harassment or worse is difficult to ascertain as it is confined to the remote Khuzestan Province … [CX 50330]."

It is appropriate to note at this stage that the applicant came from the Khuzestan Province and that there is implicit in the DFAT report an acknowledgment that harassment of Sabian Mandeans does occur in Khuzestan Province – a factor that the Tribunal appears to have overlooked.

11 The Tribunal next referred to DFAT Report 594/00 of 21 November 2000 [CX 46890]. The report noted that there was only limited information available about the group which numbered approximately 25,000 in Iran. Apparently, the majority of the religious group live in Iraq. That report stated that Sabians appeared to be allowed to perform their ceremonies largely unhindered as long as they observed Muslim sensitivities. 12 The final piece of country information to which the Tribunal referred was The United States of America Department of State Country Report on Human Rights Practices 2000. If this report accurately reflects the position in Iran, it would seem obvious that Sabian Mandeans are subject to discrimination in the legal system. The Tribunal concluded its review of the country information by saying: "The Tribunal accepts that the applicant has been subjected to occasional ridicule due to his religious adherence, that he encounters certain forms of social discrimination as outlined by him, and that certain Muslims sometimes engage in objectionable behaviour, including treating some religious gatherings at which the applicant is in attendance with occasional disdain."

13 Furthermore, the Tribunal said that there was no independent evidence to support the applicant's claim that plans to build a temple in his home area had been thwarted. The Tribunal then said: "Indeed, available evidence indicates that religious manifestations by Sabian Mandeans are conducted, not in monolithic structures or the like, but in public areas with rivers being the focal point for a range of ceremonies."

14 That statement was wrong; there was no evidence to support it. In fact, the Tribunal made a contradictory finding earlier on in its reasons, when it quoted the following extract from the DFAT Report 594/00 of 21 November 2000: "A member of the Sabian clergy has reported that the Iranian Government has refused the Sabians permission to publish their own newspaper and that a chapel they built for performing their ceremonies privately was closed down."

15 In addition to these three reports the Tribunal also referred to and quoted extracts from: · Ward and Humphreys, Religious Bodies in Australia (New Melbourne Press, 1995); · John Bowker (ed.), The Oxford Dictionary of World Religions (Oxford University Press, 1997); · Harris Mews, Morris and Shepherd (eds.), Contemporary Religions: A World Guide (Longmans 1992). 16 Prior to the Tribunal hearing, Messrs Macpherson and Kelley, the solicitors and migration agents for the applicant, filed a lengthy submission on the applicant's behalf with the Tribunal. It contained numerous references to items of country information as well as other decisions of the Tribunal but neither the submission nor any of the extracts of country information that were quoted in the submission were referred to by the Tribunal in its reasons. Mr Barrett QC, who appeared as pro bono counsel for the applicant, highlighted certain passages from this submission: · The first of the passages to which Mr Barrett referred contained the following statement from the author of the submission.

"There is substantial evidence that those who consider themselves Sabian-Mandeans are persecuted in Iran."

The author then submitted that the US Department of State Annual Report confirmed that assertion. The passage from that report, upon which the author of the submission relied, acknowledged that the government restricts freedom of religion and that the Constitution declares that the official religion of Iran is Islam and it went so far as to say that members of religious minorities had reported "imprisonment, harassment and intimidation based on their religious beliefs …". Although the minorities that were mentioned did not include a reference to Sabian Mandeans (they were stated as "including Baha'is, Jews, Christians and Sunni Muslims"), I find it hard to accept that the omission of a reference to Sabian Mandeans would have been deliberate.

· The next passage in the submission that was referred to was an extract from a publication entitled "The INEAS, Institute of Near Eastern and African Studies, … The Mandeans: An Unknown Religious Minority in the Near East, by Jorunn Jacobsen Buckley, Bowdoin College Professor, taken from the 1996 article, 'With the Mandeans in Iran') ..." The extract was as follows: "The Mandeans are not an officially recognised minority religion in Iran. The Qur'an exempts them, as a 'people of the book',from forced conversion to Islam. After the revolution in 1980, however the government stopped supporting this protection. Since then, the Mandeans have worked to regain it. About two years ago, the Iranian President Khamenei issued a fatwa, an opinion, about the Mandeans, stating that they seemed to be monotheists with a Holy Scripture and a prophet and should therefore be recognised as a protected religion. Since the fatawa, the Mandeans have had their hopes strengthened … However, the actual protection of the religion during the centuries has been disputed, and the 'Mandean question' remains a difficult legal-religious question in Islam."

· The third passage to which Mr Barrett QC, directed the court's attention came from the journal for the study and research into the Mandean culture, religion and language which states: "Even today a Moslem will not allow a non-Moslem to touch store merchandise. Instead a Mandean must ask for a certain item and then the Moslem will hand it to that Mandaean. Of course the item cannot be returned since it has become polluted, due to being touched by a non-Moslem. In fact many stories require Mandaeans to bring their own tongs to select the merchandise." 17 This Court is not entitled to review the merits of the applicant's case. Its limited role is to identify an error of law of sufficient dimensions to warrant the intervention of the Court. Even then it can only remit the matter to the Tribunal for reconsideration. However, the Tribunal failed to address the existence of the submissions from Macpherson and Kelley; it omitted to make reference to any of the extracts from the country information that were referred to in those submission and upon which counsel relied. It is not to the point to submit that if one stands back and assesses the extracts from the submission of Messrs Macpherson and Kelley, one might conclude that the quoted passages could not lift the general position of Sabian Mandeans and the particular position of the applicant to one of persecution for a Convention reason. That would have been the task of the Tribunal, it is not the task of this Court. 18 Mr Barrett referred to and relied upon the decision of Merkel J in Abedi v Minister for Immigration and Multicultural Affairs [2001] FCA 1430; he also relied upon the judgment of R D Nicholson J in Applicant Z v Minister for Immigration and Multicultural Affairs [2001] FCA 325. Coincidentally, in Abedi's case, the issue revolved around another submission that had been filed on an applicant's behalf by Messrs Macpherson and Kelley. However, at the last moment, Ms Oboody, a solicitor, announced her appearance for the applicant in place of Messrs Macpherson and Kelley. The Tribunal in that case made a particular point of stating that it had excluded from its consideration the submission that had been filed on the applicant's behalf by Messrs Macpherson and Kelley, ostensibly because it no longer thought that Messrs Macpherson and Kelley was representing the applicant. Merkel J said that he did not accept the submission of counsel for the Minister that, having regard to the Tribunal's adverse findings concerning the applicant's credit, he should infer that the Tribunal considered the Macpherson and Kelley submission but determined that, as it was not helpful, there was no need to rely on it. Whilst it is true that the Tribunal should not exclude from its consideration material that is relevant to the applicant's case, it does not mean that the Tribunal is required to have regard to every item of material that is placed before it. Its obligation is limited to having regard to relevant material. In the present case the material which was contained in the Macpherson and Kelley submission had, in my assessment of it, the potential to be regarded as relevant. 19 Applicant Z was a different case. His Honour in that case found that the Tribunal had failed to determine how an Iraqi national would be able to return with safety to Iraq without a passport. His Honour said at [28]: "It therefore became critical in the circumstances and a highly material fact for the Tribunal to determine how, if at all, the applicant could achieve either of those steps and, having done so, how he could be returned in the manner which would secure the effective protection of Iraq. The consequences were absolutely vital for the applicant. There was abundant evidence before the Tribunal demonstrating the degree of risk in returning a person to Iraq as a known failed asylum seeker with the consequences of torture and death inherent."

The circumstances of the present case did not create the concerns which were so apparent in the case of Applicant Z.

20 I finally turn to a consideration of the alleged relationship between the applicant and the young Muslim girl. When the Tribunal came to assess the applicant's evidence of his relationship with his girlfriend, the Tribunal, for the reasons that it stated, concluded that his story was a fabrication. It arrived at that decision because of what it described as "the range of improbabilities in the applicant's story about his alleged relationship" with her. It noted the following factors: · The applicant claimed to have romanced his girlfriend over a period of three years from the time she was sixteen. Yet, even though she came from a strict Muslim family and lived nearby, the applicant claimed that he was never seen in her company by any of her family members during that three year period; · Whilst the applicant claimed that they met clandestinely, he acknowledged that they ordinarily went to public places where they were generally subject to observation; · His girlfriend explained her absences to her family when she was in the applicant's company, by falsely stating that she was attending classes and was able to conduct that deception for three years; · Despite the harm inflicted on his girlfriend and on members of his family, the applicant was able to avoid harm from her family by moving to his uncle's residence; · The Tribunal considered it unlikely that the applicant would have been able to fly out of Iran if he had been wanted by the authorities. 21 Each of these conclusions was challenged by counsel for the applicant; he described them as illogical and said that cumulatively they became an error of law. These illogical findings, together with the alleged failure by the Tribunal to consider all relevant country information, were said to amount to an error of law of the type contemplated by the former s 476 of the Act which was identified by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [84] per McHugh, Gummow and Hayne JJ: "If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply the law correctly to the facts it found. If that is so, the ground in s 476(1)(e) is made out."

22 Although I do not accept that the Tribunal's findings about the applicant's relationship with his girlfriend were illogical, I do believe that the Tribunal ignored relevant material when it failed to address the contents of the submission of Messrs Macpherson and Kelley and the extraneous material that was referred to in that submission. For these reasons I have come to the conclusion that the application to the Court should be allowed. The matter is to be remitted to the Tribunal for further consideration according to the law. The respondent is to pay the applicant's costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin .

Associate: Dated: 17 June 2002 Counsel for the Applicant: Mr GF Barrett QC (pro bono counsel)

Solicitor for the Applicant: Refugee Advocacy Service of South Australia Inc

Counsel for the Respondent: Mr MJ Roder

Solicitor for the Respondent: Sparke Helmore

Date of Hearing: 26 April 2002

Date of Judgment: 17 June 2002