AZAEL v Minister for Immigration

[2015] FCCA 982

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZAEL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 982

Catchwords:
MIGRATION – Judicial review of a decision of the Refugee Review Tribunal – jurisdictional error not disclosed – application dismissed with costs.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.16.01

Migration Act 1958 (Cth)

Applicant: AZAEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 1 of 2014

Judgment of: Judge Simpson

Hearing date: 14 October 2014

Date of Last Submission: 14 October 2014

Delivered at: Adelaide

Delivered on: 23 April 2015

REPRESENTATION

The Applicant: In person

Solicitors for the Respondents: Mr P d'Assumpcao for the Australian Government Solicitors

ORDERS

1. The application filed on 3 October 2014 for judicial review is dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant do pay the First Respondent’s costs fixed in the sum of SIX THOUSAND, SIX HUNDRED AND FORTY SIX DOLLARS ($6,646.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 1 of 2014

AZAEL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. I have before me an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).  On 3 December 2013, the Tribunal affirmed a decision of the Delegate of the then Minister for Immigration and Citizenship, not to grant the Applicant a Protection (Class XA) visa.

2. In drafting these reasons, I should mention that I have been assisted by a helpful Outline of Submissions provided to the other party and the Court by counsel for the First Respondent.

3. The Court will only allow the application if it satisfied that the Tribunal’s decision is affected by a jurisdictional error.  The First Respondent denies the presence of a jurisdictional error and submits that the application should be dismissed with costs. 

Background

1. The background to this matter is that the Applicant is a citizen from Iran.  He entered Australia in 2008 for 3 weeks and again in 2010 for 5 weeks as the holder of a Sponsored Family Visitor Visa.  His wife and children accompanied him.  The Applicant departed Australia on 10 August 2010 and re-entered for a third time, this time unlawfully, on 9 June 2012.

Delegate

1. The Applicant lodged his visa application on 16 September 2012.  In it he claimed to fear persecution on account of an imputed opposition to the Iranian regime, his lack of religion, and his membership of particular social groups comprised of “apostates from Islam in Iran” and “failed asylum seekers”.  He claimed that after he returned from Australia to Iran in 2010 he was detained and tortured without charge until February 2012 at which time he paid a bribe to secure his release.

2. On 8 April 2013, the Minister’s Delegate refused the application.

Tribunal hearing

1. On 15 April 2013, the Applicant applied to the Tribunal for review of the Delegate’s decision.  On 20 May 2013, the Tribunal invited the Applicant to appear before it.  A hearing was conducted on 27 June 2013 at which the Applicant was present with the assistance of an interpreter.  He was also represented by his solicitor who had acted for him throughout the initial phase of the application before the Delegate.

2. On 17 September 2013, the Tribunal invited the Applicant to comment or respond to information received by the Tribunal from the Applicant’s brother.  The information was to the effect that the Applicant’s brother, who previously asserted that the Applicant was not to be believed, had attempted to retract that position.  On 30 September 2013, the Applicant’s solicitor responded by way of a written submission.

3. On 3 December 2013, the Tribunal affirmed the Delegate’s decision, after which, on 7 January 2014, the Applicant filed his application in this Court.

Hearing of Application for Review of Tribunal’s decision

1. In his application to this Court the Applicant sought an order quashing the Tribunal’s order.  The grounds that he relied upon were as follows:

   “1.The decision was made base(d) on false report.

   2.My position back in Iran was seem very high only by my wife, where as it was not as high as she thought.” (sic)

2. The Applicant filed an affidavit on 3 October 2014.  The affidavit mirrors the submissions that were put to the Court by the Applicant during the hearing of the application.  The affidavit stated as follows:

   “This is summary of my defence in relation to RRT decision not accepting my refugee application.

   RRT has highlighted few points which base on those my application was rejected.  I would like to elaborate on those and clarify them in more details.

   1.RRT has pointed out in the letter that I could continue to hide my felling and views towards Religion (rejecting Islamic idea in general religion) but the most important fact that has been over looked by RRT is my children since they are at very young age.  Would they be able do the same thing?

   RRT by rejecting my application for refugee status has place my children life in great danger (specially they think the same pathway as I do).

   2.RRT has pointed out in the letter that they have requested document in relation to I been (suspended from work) but they haven’t received it.  But I have documents which prove they have received it.

   3.Part of RRT decision was based on my brother (Mahmood) testimony which it totally false and fabricated since he has got recorded sycological problems as well as few fraudulent cases in Court.

   4.In meating with RRT I said my brother (Mahmood) five or six month after my arrest came to Iran (according to his word mentioned by him to my wife lawyer (Mr Philip Winter tel [phone]) as follow (as soon as he arrived to airport he was pulled over by security and questioned his relation to me and my family) as well as he went to Iran at late 2010 and late 2011 he went to immigration and claimed that he has recently spoken to me and I wasn’t under arrest.  He changed his story later on.  According to his word, when he rang Iran they made him believe I was free not in jail.  On same subject RRT has referd to his word and came with this conclusion that it is hard to believe someone can mistake his brother voice over phone call.

   I would like to use some logic as RRT has refered to.

   It is also hard to believe inspite of the fact that my brother came to Iran late 2010 (after my arrest) not knowing his brother (me) has been arrested (around July or August 2010) at the same time my family lived with him my (wife and children) in Australia only for few months at 2010 at that time I was jail.  It is very hard to believe he didn’t know my circumstance in Iran.

   5.RRT has refer in the letter to my finantial capability has admitted I have contributed to Mr Mosavey ex-candidate of Presidency Campaign of Iran currently in house arrest.  In other part of letter has been pointed out that people who come to Australia are looking for better life mainly financial.  This is in contradiction with the fact of my contribution of sum of money to Mr Mosavey campaign.  This clearly indicate I had no finantial problem in Iran.

   Regards (Applicant’s name).” (sic)

3. The Tribunal had made the following findings:

   a)That the Applicant provided “unconvincing” and “unsatisfactory” explanations regarding his brother’s varied position with respect to the Applicant’s claims;

   b)That the Applicant wife’s decision to return to Iran supported the conclusion that the Applicant had not been detained as claimed;

   c)That at its highest, the Applicant’s involvement with the Mousavi campaign rose only to the point of cash donations and occasionally talking about politics with other people.  In the Tribunal’s view, there was no inconsistency between the Applicant and his wife’s evidence about the degree of his political involvement.  The Tribunal found that the Applicant had not been targeted in the past for any of his political opinions, and there was nothing to suggest that he would increase his political involvement should he return to Iran in the reasonably foreseeable future or that he would be targeted for past political actions;

   d)That the Applicant had not been targeted or noticed by the authorities in Iran for reason of his position as a wealthy businessman;

   e)That there was no a real chance that the Applicant would be seriously harmed on return to Iran for reason of his lack of religion.  It followed that he would not be targeted for membership of the claimed particular social group “apostates from Islam in Iran”;

   f)That there was not a real chance that the Applicant would be imputed with an adverse political opinion/profile in Iran, or that he would be targeted because of any membership of a particular social group comprising of “failed asylum seekers”; and

   g)That the complementary protection criteria were not met.

4. On the basis of these findings, the Tribunal affirmed the decision under review.

Applicant’s grounds of review

1. The Applicant relies on the following grounds of application:

   “1.The decision was made base(d) on false report.

   2.My position back in Iran was seem very high and only by my wife.  Where as it was not as high as she thought.” [sic]

Ground one

1. In relation to ground one, the Applicant provides no details of the report that he says the Tribunal relied upon.  It seems likely that the “false report” is the information that the Applicant’s brother gave to the Tribunal that the brother later sought to withdraw.  I cannot see that anything concerning these events can amount to jurisdictional error.  The Tribunal gave this material as much weight as it thought appropriate.

2. Ground one fails.

Ground two

1. Ground two seems to be saying that certain evidence given by the wife was inaccurate as to the profile that the Applicant had back in Iran (ie whether or not he was seen as a person of authority).  It is not a complaint that might lead to jurisdictional error.  The Tribunal no doubt gave the evidence as much weight as it thought appropriate.  This Court cannot go behind the Tribunal’s factual findings.  No jurisdictional error is disclosed.

2. Ground two fails also.

Conclusion

1. As jurisdictional error has not been found, the application will be dismissed.

2. I make the orders to be found at the beginning of these reasons.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date: 23 April 2015