CZBX v Minister for Immigration

[2015] FCCA 127

FEDERAL CIRCUIT COURT OF AUSTRALIA

CZBX v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 127

Catchwords:
MIGRATION – Challenge to findings made by Refugee Review Tribunal – claims of illogicality and irrationality – claims of “no evidence” for the Tribunal’s decision – further claims of [unspecified] bias – no error established by Applicant in the processes undertaken by the Tribunal or in its findings of fact that were open to it on the evidence presented by the Applicant – Application for review dismissed.

Legislation:

Migration Act 1958 (Cth), s.476(1)

Abebe v The Commonwealth (1999) 197 CLR 510
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Fox v Percy (2003) 214 CLR 118
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; 179 ALR 425
SZSHV v Minister for Immigration & Border Protection [2014] FCA 253

Applicant: CZBX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: CAG 18 of 2014

Judgment of: Judge Neville

Hearing date: 23 July 2014

Date of Last Submission: 6 August 2014

Delivered at: Canberra

Delivered on: 23 January 2015

REPRESENTATION

Lawyer for the Applicant: Mr H Ford

Solicitor/Advocate for the First Respondent: Ms J Cumming

Solicitors for the First Respondent: Clayton Utz, Canberra

ORDERS

1. The Application filed 7^th April 2014 be dismissed.

2. The Applicant to pay the First Respondent’s costs in the sum of $6825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAG 18 of 2014

CZBX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This review application/appeal challenges a decision of the Refugee Review Tribunal (“the Tribunal”), delivered on 3^rd March 2014, which affirmed a decision, notified to the Applicant on 27^th July 2012, made by a Delegate of the First Respondent Minister (“the Minister”) to refuse the application for a Protection (Class XA) Visa.[1] 

   [1] The Decision record of the Delegate was provided to the Court and is set out in the Court Book (“CB”) at pp.239 – 252.  Among other things, the Delegate found that Zoroastrianism is a protected religion in Iran.

2. The Applicant, who is a 33 year old citizen of Iran and who has been pursuing post-graduate studies in Australia at the Australian National University in photonics, claims that because of his Zoroastrian beliefs and practices, he fears persecution (including the risk of death) if he returns to Iran where that ancient religious tradition, he says, is anathema to the Islamic traditions of his native country.

3. For the reasons that follow, the application/appeal to this Court must be refused and dismissed with costs.

4. These reasons proceed as follows: (a) outline of grounds of review; (b) the decision of the Tribunal; (c) submissions of the Applicant; (d) submissions of the First Respondent; (e) consideration and disposition.

A.  Grounds of Review

1. The Application for Review was filed on 7^th April 2014.  It was prepared by the Applicant’s Lawyer.  It lists 19 grounds, but notes that these extensive grounds also constitute an outline of submissions on behalf of the Applicant.  Some of the grounds are more an elaboration, or even repetition, of other grounds.

2. Briefly stated, the grounds of the Application may be grouped as follows:[2]

   a)     Grounds 3 & 14 contend that the Tribunal’s reasons have no rational basis;

   b)     Grounds 4, 7, 10, 13, 17, 18 & 19 contend that there is no evidence to support the conclusions of the Tribunal;

   c)     Grounds 5 & 8 contend that the Tribunal took into account certain irrelevant considerations;

   d)     Grounds 6, 7 & 9 contend that the Tribunal did not take into account certain relevant considerations;

   e)     Ground 11 asserts that the Tribunal was biased against the Applicant, and that there was a reasonable apprehension of bias by the Tribunal.

   [2] Grounds 1, 2, 12, 15 and 16 are more comment or submission and need not otherwise be noted further here.

3. The grounds of the Application are considered in detail later in these reasons.

B.  The Tribunal’s Decision

1. The following summary of the Tribunal’s decision is sufficient for current purposes.

2. The Tribunal’s reasons are in three parts: [1] – [23] outline the evidence presented; [24] – [35] set out the Tribunal’s discussion/consideration of the Applicant’s claims and the evidence; [36] – [48] detail the Tribunal’s conclusions.

3. It is important to record at the outset that the Tribunal considered, at [2] – [3], the capacity of the Applicant to participate effectively in the proceeding in the light of the Applicant being diagnosed with the condition known as Attention Deficit Hyperactivity Disorder (“ADHD”).  The Tribunal concluded, for the reasons set out, that the Applicant was able effectively to participate in the hearing.

4. After outlining some details concerning the Applicant’s schooling in Iran, the Tribunal noted that he first came to Australia in 2007 on a Subclass 462 (Work & Holiday) Visa.  There was some discussion about the Applicant’s completion of his under-graduate studies, and his employment history.  Nothing much turned on such matters.

5. The Applicant returned to Iran in July 2009.  He came back to Australia in February 2010 to undertake post-graduate studies at the Australian National University (in photonics).  He took leave from these studies due to his ADHD, and in April 2012 he applied for a protection visa.

6. The Applicant provided a statutory declaration in support of his application for that visa.  It is dated 4^th May 2013.[3]  In it he outlined relevant family history which included that his Father was a Zoroastrian “by blood” and that his Mother’s Father held to the same belief system.  The Applicant said that being a Zoroastrian in an Islamic State was very difficult and that he had been forced to profess Islam and to study Islamic theology.[4]

   [3] A copy of this declaration is at CB pp.151 – 158.

   [4] Tribunal’s decision, at [7]. Hereafter, references to the decision will be given in the body of the text.

7. At an interview with the Department of Immigration and Border Protection (as it now is: “the Department”), the Applicant confirmed that he claimed to have been born into the Zoroastrian religion, and he noted further that many Zoroastrian tribes , including his Father’s, had converted “verbally” to Islam. The Applicant contended that his Father had declared him to be a Muslim to save him [7].

8. The Applicant’s Father provided a letter to the Tribunal, as part of the Applicant’s submissions that were provided by his then representative. That letter confirmed that the Applicant had in fact been born into a Muslim family, and that his family had been Muslim “for many centuries.” The Applicant’s Father’s letter confirmed that the Applicant had become interested in the Zoroastrian scriptures from a young age, and that the Applicant’s interest in Zoroastrianism had caused tension and difficulties: on the one hand, the Applicant had declared that he was a Muslim, but at the same time, his interest in Zoroastrianism and his discussion of it had led to certain challenges and threats to him by Muslim students at university. These threats and challenges, it was said, led to the Applicant’s mental and psychological health deteriorating. The Applicant’s interest in Zoroastrianism was canvassed further at [11].

9. It was submitted on behalf of the Applicant that in the light of the matters set out in the Father’s letter, the Applicant faced persecution from the authorities in Iran because he had converted from Islam.

10. In the course of the hearing before the Tribunal the Applicant sought to have evidence taken from his Father in Iran.  The Tribunal did not accede to such a course.  This was essentially because the Tribunal had a letter from the Applicant’s Father.  Further, the Tribunal confirmed, at [10], that if there were other matters that the Father could put to the Tribunal, the Applicant would be permitted time to secure that information after the hearing concluded.

11. Although the Tribunal noted the change in the Applicant’s evidence – from claiming to have been born into a Zoroastrian family, to confirming that he was born into a Muslim family – the Tribunal said, at [11]: “his evidence with regard to the events themselves has been by and large consistent.”

12. The Tribunal then recorded the Applicant’s further evidence regarding some historical threats against him when he was in his early teenage years, which he confirmed were actually not made directly by Muslim clerics but by their children [12].

13. The Applicant said that he had been physically attacked (and threatened with kidnaping and torture) while at the Mohammad Zadeh Guidance School in Sanandaj because he had advocated a return to ancient Iran and Zoroastrianism; he had also rejected both Mohammad and Umar, the second Caliph.

14. The Applicant said that when he moved to the Brilliant Intelligence School of Shahid Beheshti, which was also in Sanandaj, he continued his advocacy, albeit “every now and then”, for a return to ancient Iran and Zoroastrianism.  The Applicant said that the reaction of Muslims “had been mixed.” [14]

15. All of these matters just referred to took place during the Applicant’s school years, and prior to 1997, the year he completed high school in Isfahan.

16. During his late teens, and during the completion of his pre-university studies in Isfahan (in 1998 and 1999), the Applicant confirmed that he was in correspondence with a Zoroastrian priest, and had attended Zoroastrian ceremonies at the “fire temple” both secretly and many times otherwise. [15]  The Applicant also said that during his pre-university studies he was informed by one of his teachers that he was being watched by the intelligence services because he was professing Zoroastrianism.

17. The Applicant confirmed to the Tribunal that he had received an exemption from military service in Iran due to his poor eyesight and his ADHD.  While at university at Najafabad he said that he wrote articles for underground magazines about Zoroastrian beliefs.  He also said that while at university he had some “encounters” with the Islamic Revolutionary Guard, as well as with some Azerbaijani activists to whom he professed his Zoroastrianism.

18. In 2005 he graduated with a science degree in mechanical engineering, and came to Australia in 2007.  When he was in Australia he contacted the Australian Zoroastrian Society and participated in many Zoroastrian religious ceremonies in Sydney.  This participation was confirmed by a letter from that Society, dated 23^rd July 2013.[5]  The letter confirmed that the Applicant’s engagement with the Society was in 2008/2009.  The Tribunal noted, at [19], that this letter stated that Zoroastrianism had no “tradition of conversion.”

    [5] A copy of the letter is at CB p.418.

19. In 2009 the Applicant returned to Iran.  He said that it would be safe to do this because the Iranian Government had given him “clearance to travel.”  He remained in Iran for seven months before returning to Australia as a student.  During these seven months in Iran he went to the fire temple in Isfahan, apparently without undue difficulty.

20. The Applicant confirmed to the Tribunal that upon his return to Australia he did not participate in Zoroastrian events because of the pressure of his studies, but continued with his religious beliefs nonetheless. [20]

21. At [21] and [22], the Applicant confirmed to the Tribunal that he feared persecution if he returned to Iran because if he was found out to be a Zoroastrian he would be considered by the Muslim authorities to be an apostate.  This would affect, among other things, his prospects of employment, especially since he is recorded in documents in Iran as being Muslim.

22. It was earlier submitted on behalf of the Applicant that his ADHD led him, at times, to act and speak impulsively, which would/could lead him to draw attention to himself.  It was further submitted that the Iranian State did not tolerate people voicing “un-Islamic views.”

23. At the Departmental interview with the Applicant in June 2012, the Applicant’s representative said that he was not claiming that he would be persecuted because he professed Zoroastrianism, but rather that his Father had been forced to profess Islam and declared that the Applicant (and his siblings) was Islamic.  The Applicant’s representative further submitted at this interview that his fear was that if any of his future actions were brought to the attention of the authorities again his past behaviour would cause his life to be in danger. [23]

24. At the outset of the Tribunal’s consideration of the Applicant’s claims it was put to him that no action had in fact been taken because of his conversion although, by his own account, the relevant authorities had known about his profession of Zoroastrianism.  It was put to the Applicant that it was difficult to accept that the authorities would have taken no action against him given that such a religious conversion was a very serious offence in Iran.  In response, the Applicant said that although he professed Zoroastrianism he had always ticked the box ‘Islam’ in documents.  He also said that he had to humiliate himself by saying that he was Muslim in order to protect himself. [25]

25. The Applicant said that he had been critical of himself for pretending he was a Muslim because he had feared for his life, he had no other way out of it.  He said that sometimes he had defended Zoroastrianism; he also said that at other times his Father’s high profile had saved him.  He also suggested that, in effect, because of the labyrinthine nature of the bureaucracy in Iran some information about him did not find its way to other authorities. 

26. The Applicant’s representative submitted that he would not always be able to hide behind the profile of his Father, and that he should not be forced to live discretely or in isolation from his true beliefs.  In response to this the Tribunal said: “I was not suggesting that he should and my problem was that his claim was that he had not lived discreetly at all: he had gone around professing Zoroastrianism.” [27]

27. The Tribunal noted again that the Applicant had said he had attracted the attention of the authorities and that the intelligence services had been watching him because he had been professing Zoroastrianism.  Again the Tribunal emphasised that it was not suggesting that the Applicant should be discreet or should conceal his beliefs: “what I was saying was that I had difficulty in accepting that he had been behaving in the way he had been.” [28]

28. The Tribunal summarised the Applicant’s evidence to the effect that he had resisted or objected to performing Islamic prayers in primary school, and that he had a long history going back to school days professing Zoroastrianism.  The Applicant said that he had not professed it on all occasions; the Tribunal indicated to him that it accepted this and was not suggesting that he had done it every day at every opportunity.  The Tribunal also indicated to the Applicant that it accepted that there had been a number of occasions where he had said that he was a Muslim.  The Tribunal put to the Applicant that…“If he had been going around professing Zoroastrianism, the fact he had said that he was a Muslim on official forms would have compounded the offence.”  The Applicant said that this had been the only thing that had saved him.

29. The Tribunal confirmed to the Applicant that his evidence was that the intelligence services had known that he had been professing Zoroastrianism.  He said that he had stopped such professing, but the Tribunal then put to the Applicant that he started going to the fire temple exactly at this time.  The Applicant said that going to the fire temple was different to professing Zoroastrianism.  The Tribunal put to the Applicant that “going to the fire temple was a very public manifestation of his conversion to another religion. [The Applicant] referred to his evidence that he had gone to the fire temple secretly.” [31][6]

    [6] See further the discussion at [32].

30. The Applicant repeated that he had had to deny his beliefs and to pose as a Muslim in order to save himself in Iran.  He said that if he returned to Iran he would be executed.  His representative submitted that his conversion to Zoroastrianism would amount to apostasy in Iran which was theoretically punishable by death.[7]

    [7] The Tribunal noted that the Applicant’s representative did not address the complimentary protection criterion under the Migration Act 1958.

31. In its conclusions, the Tribunal noted the following.

32. The Tribunal accepted that the Applicant had been diagnosed with ADHD; relevant allowances were made for this, the Tribunal said.  Putting to one side the discrepancy between the original claim by the Applicant of being born into the Zoroastrianism religion when in fact he had been born into a Muslim family, the Tribunal put its primary concerns in the following terms, at [36-38] (internal citation omitted):

    As I put it to him in the course of the hearing before me, my problem with his claim is a fundamental one. Despite nominally being a Muslim he claims that from a very early age he objected to performing Islamic prayers and he advocated a return to ancient Iran and Zoroastrianism.  He claims that his beliefs brought him into conflict with his teachers and fellow pupils. He claims that in 1998 and 1999 when he was attending pre-university in Isfahan he was informed by one of his teachers that he was being watched by the intelligence services because he was professing Zoroastrianism.  He claims that at this time he wrote a letter to a high profile Zoroastrian leader describing his situation and this person referred him to the Mubid (Zoroastrian priest) who took care of duties at the fire temple. He claims that he attended the fire temple in Isfahan many times, although he has said that he did so secretly…

    The difficulty I have, as I put to [the Applicant] in the course of the hearing before me, is that there is no question that … conversion by a Muslim to another religion is punishable by death in Iran.  While formal charges of apostasy have only been brought against converts relatively rarely in Iran there is evidence that it is becoming more common.

    As I put to [the Applicant] given that he claims, and I accept, that all his official documents describe him as Muslim, I do not accept that the authorities in Iran would have taken no action against him at all if he had been professing Zoroastrianism as he claims to have been in Iran.  …on a variety of occasions, he claims to have openly stated his beliefs to persons in positions of authority.  He also claims to have gone to the fire temple in Isfahan many times despite being warned that he was being watched by the intelligence services because he was professing Zoroastrianism.  …as I put to him, going to the fire temple is a very public manifestation of his conversion to another religion.  [The Applicant] said that he had gone to the fire temple secretly, but, as I put to him, I consider that if the intelligence services had been watching him they would have known that he had been going to the fire temple.

33. The above discussion led the Tribunal to conclude, at [39], that it did not accept that the Applicant is a convert to Zoroastrianism.  The Tribunal accepted that the Applicant had studied the Zoroastrian scriptures and that he had participated in various Zoroastrian functions in Australia in 2008 and 2009.  The Tribunal did not accept the Applicant’s claims to have professed Zoroastrianism when he was in Iran or to have attended the fire temple as claimed.  The Tribunal said that in its view, the Applicant had participated in Zoroastrian activities in Australia for the sole purpose of strengthening his claim to be a refugee.

1. The Tribunal also considered that the Applicant’s return to Iran in July 2009, and having remained there for seven months, also indicated that notwithstanding his participation in Zoroastrian activities in Australia in 2008 and 2009 he is unlikely to come to the attention of the Iranian authorities in the event he was to return to that country.  The Tribunal also considered it significant that since his return to Australia, he had not participated in further Zoroastrian activities.  The Tribunal further rejected any contention that he would be perceived to be a convert to Zoroastrianism because of his studies in photonics. 

2. For these reasons, and others more tangentially referred to at [41-45], the Tribunal concluded that it did not accept that there is a real chance that he will be perceived as a convert to Zoroastrianism and imprisoned, tortured or executed for reasons of his real or perceived religious believes if he returns to Iran now or in the reasonably foreseeable future. [41]

C.  Applicant’s Submissions

1. Before considering the Applicant’s written submissions, regrettably some general comments are necessary.

2. First, the submissions (particularly the primary submissions filed on 10^th July 2013) are poorly drafted.[8]  They often proceed simply by assertion, without any supporting explanation or argument.

   [8] In addition to the primary submissions of the parties, after the hearing the Court sought and was provided with submissions on case law in relation to matters of “credibility findings”, notably the High Court’s comments in Fox v Percy (2003) 214 CLR 118, and SZSHV v Minister for Immigration & Border Protection [2014] FCA 253. Generally speaking, I need only confine these reasons, unless otherwise specified, to the primary submissions as filed.

3. Secondly, citations of authorities relied upon are consistently mis-spelt (“Abebi” instead of Abebe v The Commonwealth; “Rajamonikkam” instead of Rajamanikkam).

4. Thirdly, while neutral citations are acceptable, authorities reported in the Commonwealth Law Reports, at least, should be cited: this did not occur.  Often, when paragraphs from a particular case were cited, there was no paragraph or page reference, or sometimes, the wrong reference was provided.

5. Fourthly, regularly, the Applicant’s Lawyer relied upon comments only by the High Court Justice in dissent, without providing any counter-balancing comment by those members of the Court who comprised the majority. 

6. Fifthly, references to members of the High Court are inappositely if not inappropriately done.

7. Finally, sometimes the statements made in the submissions regarding what the High Court did or did not say or do are simply wrong – on which more later.

8. The Court should not have to do a Lawyer’s work regarding the preparation and provision of written submissions.  It is most unfortunate that comments such as these should need to be made.

9. The Applicant contends that the “cornerstone of this case is the issue of credibility.”  He cites in aid of this proposition the following comments, without noting where in the judgment it is to be found, from the joint judgment of Gummow and Hayne JJ in Abebe v The Commonwealth.[9]  At [191], their Honours’ said:

   … the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself. But those difficulties are to be confronted by the Tribunal in the execution of its tasks, not by a court that is asked to review the way in which the Tribunal reached its decision.

   [9] Abebe v The Commonwealth (1999) 197 CLR 510.

10. The caution by their Honours is, of course, properly made.  However, in the present matter, the Applicant’s submissions focus, in my view, without foundation on what it is alleged the Tribunal said or found, rather than the actual bases for the findings actually made.  Indeed, the submissions assert that the Tribunal found there to be an inconsistency between the Applicant’s statements as to whether he was born into a Muslim family or not.  In fact, as  earlier noted, the Tribunal, at [11], actually found that notwithstanding this inconsistency, “his evidence with regard to the events themselves has been by and large consistent.”

11. Next, by reference to the judgment of Kirby J in Minister for Immigration and Multicultural Affairs v Rajamanikkam, this time with the incorrect reference, the Applicant stressed the importance of careful analysis of the claims made before the Tribunal.[10] The Applicant relied upon comments made by Kirby J, who was in dissent in the matter, at CLR 259 [121]. There, his Honour stated (internal citation omitted):

    Correctly, the Full Court pointed out that this was not a case where the Tribunal had based its conclusions as to the credibility of Dr Rajamanikkam simply on the impression that he had made as a witness. Different considerations would apply in such a case. Instead, commendably in my view, the Tribunal itemised the grounds on which it had found him to be lacking in credibility. Careful analysis had shown that two of these grounds were incorrect in fact.

    [10] Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222.

12. This paragraph, and more generally, led the Applicant to make the following submission in relation to what the High Court said and did in Rajamanikkam.  He said:

    In Rajamonikkam [sic], the High Court was critical of a Tribunal where the Tribunal simply forms an impression without there being any factual basis for such an impression.  In Rajamonikkam [sic], the High Court was highly critical of the Tribunal because the Tribunal made a finding as to the Applicant’s credibility based on facts which did not exist.

13. Respectfully, the High Court did no such thing.  For example, Gleeson CJ said, at [42] (emphasis added):

    The Act required the Tribunal to decide that visas should be refused if it was not satisfied that the first respondent satisfied the criteria for refugee status. The Tribunal's lack of satisfaction related to whether he could return to Sri Lanka without being persecuted. There was nothing in the evidence or other material that compelled a conclusion that the first respondent would be persecuted if he returned to Sri Lanka. There may be cases in which it could be said that there is no evidence or other material to warrant a lack of satisfaction that a person will be persecuted if returned to a particular country. It might depend upon the country, and the person. But this Tribunal was not satisfied that an elderly, respected, medical practitioner, who had many years of government service, and who was in receipt of a government pension, would be persecuted if he returned to Sri Lanka. It gave a number of reasons for that, which included, but were not limited to, reasons for not accepting him as a credible witness. Most of those reasons were plausible, and have not been shown to involve error. I find it impossible to conclude that there was no evidence or other material to justify the decision which was required by law in the event of such lack of satisfaction.

14. To similar effect were comments by Gaudron and McHugh JJ, at [70] – [72].  Their Honours otherwise agreed with the judgment of Gleeson CJ.  Callinan J made observations to similar effect at [150] and [161].

15. Further, the Applicant submitted that the Tribunal made findings regarding the credit of the Applicant because he had made inconsistent statements to the Tribunal and that there was no factual basis for the findings in any event.

16. In fact, the findings of the Tribunal to which I have earlier referred focus primarily, not on the inconsistent statements, but on (a) the Applicant having returned to Iran in 2009 after having attended various Zoroastrian gatherings in Sydney and lived in his native country without incident for seven months, (b) the disbelief of his conversion to Zoroastrianism, and (c) if he had been under surveillance by the intelligence services, and if, as he said, he had regularly attended the fire temple (a very public manifestation of religious practice), such religious practice would have come to the attention of relevant authorities.  If he did not, he has suffered no adverse consequence.  If he did, he still has suffered no adverse consequence.  Respectfully, the Applicant’s submissions both mis-state the findings of the Tribunal, and under-play the evidence and its import for the application.

17. A further authority relied upon by the Applicant in his submissions is another dissenting judgment of Kirby J, this time in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB.[11]  Again, the references and citations are incomplete.  In any event, the submissions set out at length his Honour’s comments, at ALR p.32 [73] that comment on matters of “credibility.”  Unfortunately, as I have already noted, the submissions fail to refer to, or to consider, the comments of other members of the Court who form part of the majority  and who discuss the same matters, notably the joint judgment of Gummow and Hayne JJ at [39] – [41] regarding claims of “no evidence”, and at [42] – [44] in relation to “credibility.” 

    [11] Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12.

18. In my view, the claims made by the Applicant that are predicated upon the comments of his Honour Kirby J (in dissent) in SGLB, cannot be sustained, or at least must be considered afresh, because and in the light of the comments of Gummow and Hayne JJ, with whom Gleeson CJ agreed, at [1].  Indeed, the submissions of the Applicant, to the degree that they continue to assert error on the part of the Tribunal in making findings based on the Applicant’s inconsistent evidence (e.g. see the Applicant’s primary submissions at pars.7, 9, & 13), cannot be sustained.  They are based on an erroneous reading of the Tribunal’s findings and consideration of the evidence more generally, and they rely, in large part, on dissenting judgments without relevant reference to or consideration of the judgments of the majority in the High Court cases to which reference is made.

19. The Applicant contended that the Tribunal’s consideration of his “religious disposition” was an irrelevant consideration.  This bald assertion is just that: a bald assertion.  It is also incorrect.  The religious affiliation of the Applicant was and remained directly at the heart of the matter before the Tribunal.  It was central to the Applicant’s claims for a protection visa precisely because, he said, his religious adherence to Zoroastrianism put him in peril with the Islamic religious authorities in Iran.[12]

    [12] The comments here apply equally to the Applicant’s submissions at pars.17, 21, 22 & 24 – 26.

20. The Applicant further submitted that the Tribunal should have considered his risk of persecution (real or otherwise) if he returned to Iran.  This is precisely what the Tribunal did, particularly in its findings and conclusions.  The Applicant also claimed that the Tribunal did not relevantly inquire into the likelihood of such persecution as claimed by the Applicant.  Two responses to this submission are apposite.

21. First, the Tribunal did consider this matter and came to the conclusion, for the reasons it gave (e.g. at [41]), that there was no real chance of the Applicant facing imprisonment, torture or worse for reasons of his real or perceived religious beliefs.

22. Secondly, much of the Applicant’s submissions are predicated upon a misconceived understanding of the proper processes of the Tribunal.  In short, the submissions proceed, to a significant degree, on the assumption that the Tribunal should make relevant inquiry on behalf of the Applicant.  This is to mis-understand the inquisitorial functioning of the Tribunal, and the related mis-understanding evident in the submissions of the responsibility of the Applicant to present relevant evidence in support of the application and the contentions that support it.[13]  Bald assertions are not evidence.[14]

    [13] Among many authorities in this regard, see the comments in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [1], [22] & [23] French CJ & Kiefel J, and by Gummow J at [83] & [84].

    [14] For a recent, helpful discussion of the requirements of a Tribunal to consider relevant evidence, see the discussion by the Full Court (Katzmann, Griffiths & Wigney JJ) in Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67.

23. The Applicant went on to contend that the Tribunal had been occupied with whether the Applicant was a member of a particular religion.  This, it was submitted, was said to constitute an irrelevant consideration.

24. Respectfully, the Applicant’s evidence put squarely in contention the nature and substance of his religious affiliation.  The Tribunal’s reasons are replete with references to the Applicant’s evidence and contentions in relation to whether he was or was not a Muslim, or whether he was or was not a Zoroastrian, and the implications of such adherence.  The Applicant’s submission in this regard has no substance and, in my view, ought not to have been made.

25. In a slightly different way, the Applicant submitted (primary submissions: pars.19 & 20) that the Tribunal should have inquired into the likelihood of the religious authorities in Iran taking action against the Applicant because of his non-Islamic religious faith.  To the degree appropriate, the Tribunal did turn its mind to this matter and came to the conclusion already noted.  And as previously observed, it was not an irrelevant consideration to have regard to what the Iranian authorities may consider as relevant in relation to the Applicant’s religious adherence.  The Applicant himself put his “religion” as a relevant consideration.  He cannot now claim it to be an irrelevant consideration.

26. At pars.23 and 28 of his submissions, the Applicant submitted that the Tribunal had no evidence to support its findings of lack of credibility for the Applicant’s evidence and claims.  On the contrary, particularly at [36] – [46], the Tribunal pointed to the basic and clear grounds and the reasons why it upheld the Delegate’s decision.  The evidence relied upon was outlined in the Tribunal’s decision.

27. For completeness, in relation to the outline of submissions (noted earlier in these reasons) set out in the Application, in so far as it refers to, or contends, “illogicality” on the part of the Tribunal’s reasons, in my view such a claim by the Applicant is not supported either by evidence, authority or proper submission.  The bald contention regarding the Tribunal’s decision as being “illogical” is not supported by any relevant evidence referred to by the Tribunal; nor does not conform to the relevant test for such a claim as set out by the High Court in Minister for Immigration and Citizenship v SZMDS.[15]

    [15] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] (Crennan & Bell JJ).

28. Finally, it is apposite to recall the comments of Gleeson CJ and McHugh J in Minister for Immigration and Multicultural Affairs v Eshetu.[16]  At [40], their Honours said:[17]

    Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as “illogical” or “unreasonable", or even “so unreasonable that no reasonable person could adopt it". If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.

    [16] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611.

    [17] Their Honours’ comments cautioning about a court trespassing into the improper review of the merits of a decision are also apposite here.  See Eshetu at [44], and to similar effect, Gummow J at [138].

29. Respectfully, much if not most of the Applicant’s submissions seem to be fuelled by the ‘strong disagreement’ to which the High Court refers.

D.  The Respondent’s Submissions

1. Having regard to the Court’s specific and general comments that are adverse to the Applicant’s submissions, I can be very brief in relation to those provided by the First Respondent.

2. First, I should be taken to accept in their entirety the submissions made on behalf of the Minister.

3. Secondly, by way of general observation, I note the High Court’s comments in Minister for Immigration and Citizenship v SZJSS, which apply with equal force to the current proceedings, albeit that some of them I have already noted from somewhat earlier decisions of the High Court.[18]  At [33] and [34], the Court said (internal citations omitted):

   [18] Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164.

   … The weighing of various pieces of evidence is a matter for the Tribunal.

   It has been recognised that to describe reasoning as irrational or unreasonable may merely be an emphatic way of disagreeing with it…

4. In the current matter, much if not most of the Applicant’s submissions are predicated upon a vehement belief, and contention, that the Tribunal’s decision is wrong.  This is no more than ‘emphatically disagreeing with it.’  Such disagreement, without relevant evidence of error, does not have any legal consequence for the purposes of the current Application.

5. Further, in my view, the Applicant’s submissions focus on the merits of the decision, and do not point to any relevant error in the process by which the Tribunal came to its decision.  It is not permissible for this Court to engage in a review of the merits of the decision.  In my view, the findings of the Tribunal were open to it on the evidence put before it by the Applicant.  Apart from disagreement with the findings and the result, as I have said, no error has been shown in the Tribunal’s process(es) that would warrant any intervention by this Court.

6. In the same case of SZJSS, the High Court referred, at [42], to its earlier decision in Re Refugee Review Tribunal; Ex parte H in relation to contentions of apprehended bias.[19]  Notwithstanding that the Applicant in the current proceeding did not refer to any authority in relation to bias – actual or apprehended – or to any particular part of the Tribunal’s decision that allegedly demonstrated bias of some description, there are no facts referred to by the Applicant that, in my view, could remotely come within the accepted principles that relate to bias of any description.  The contention that the Tribunal was biased in any relevant respect is without foundation.[20]

   [19] Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; 179 ALR 425.

   [20] Generally, see also the helpful discussion by Flick J in SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [37] – [48].

7. Given that I have accepted the First Respondent’s submissions, which include those that relate to the contention that the Tribunal made a finding that the Applicant should not have openly expressed his religious beliefs, I need only note that I would refer to the more detailed comments of Gummow and Hayne JJ regarding a person living discreetly in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs at [78] – [83].[21]

   [21] Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473. See also the comments by McHugh and Kirby JJ at [34] – [50].

E.  Disposition

1. In short, no error on the part of the Tribunal has been established.  That being so, for the above reasons, the Application must be dismissed with costs, which shall be fixed at $6825.00

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Neville

Associate: 

Date:       23 January 2015