SBAM v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 475

FEDERAL COURT OF AUSTRALIA

SBAM v Minister For Immigration & Multicultural & Indigenous Affairs

[2002] FCA 475

SBAM v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S.229 of 2001

MANSFIELD J
24 APRIL 2002
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.229 OF 2001

BETWEEN:	SBAM APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	24 APRIL 2002
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application is dismissed.

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.229 OF 2001

BETWEEN:	SBAM APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	24 APRIL 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This application is made under s 39B of the Judiciary Act 1903 (Cth). It seeks an order setting aside a decision of the Refugee Review Tribunal (the Tribunal) given on 23 November 2001. The Tribunal affirmed a decision of a delegate of the respondent given on 29 August 2001 refusing to grant to the applicant a protection visa under the Migration Act 1958 (Cth) (the Act).

2. The applicant was accepted by the Tribunal as being a citizen of Iran, and (as he claimed) to have completed his schooling at age 18 in 1996, to have been a competition level wrestler, including being a national champion in 1999, to have served in the Iranian police force during his period of national service between 1997 and 1999, and to have worked as a construction worker thereafter.

3. The Tribunal also accepted much of the applicant’s family background as he claimed.  In particular, it accepted that the applicant’s uncle had been executed in 1981 soon after the former Iranian leader Ayatollah Khomeini came into power.  It also accepted that the applicant’s cousin, the son of that uncle, had been executed by the Iranian regime in 1996 for having planted a bomb in an arms factory.  It also accepted that the applicant’s brother, who had been living with that cousin, was also arrested in 1996 after police had seized a gun and dissident publications from that house, and is still apparently in detention as he has not since been seen.  The Tribunal thus concluded:

   “I therefore accept that the applicant would be known as belonging to a family where there was a strain of anti-government activity, and that this would be a factor taken into consideration whenever matters concerning the applicant and national security might emerge.”

   THE APPLICANT’S CLAIMS

4. The applicant himself did not claim to have been interested in politics in any way.  He told the Tribunal that, despite his wrestling prowess, he had been prevented from participating in international competitions because of his family history.  He also said that he was not allowed to work in the government sector because of his family background.  In effect, he claimed those disadvantages were suffered by him because of imputed political opinion on his part.

5. The applicant fled Iran in July 2000, and then arrived in Australia on 20 April 2001.  He arrived without a passport from Iran.  He applied for a protection visa on 24 July 2001.  The particular circumstances which, he claimed, gave rise to his departure from Iran commenced on 25 February 2000.  He was present at a political rally linked to the Iranian general election, but merely as an interested observer.  Violence broke out between the supporters of two rival candidates, and the police intervened.  The applicant decided to leave the vicinity, but was struck by a policeman wielding a baton.  He pushed the policeman back, causing him to fall, and the applicant fled.  He was however then pursued by the police for many hours but had finally managed to evade them in the early hours of the next morning.  He had then commenced to write an anti-government slogan “Death to Khatami … Death to Khomeini” on a public wall, but as he was writing it he was seen by a different group of police who had arrested him for that anti-government behaviour.  He was taken to a Sepah (anti-revolutionary) prison, where he was beaten and threatened with death.  After four days, fearing death had befallen his uncle and his cousin, he scaled the prison wall and escaped.  The applicant then went into hiding.  He learnt through his family that he had been falsely accused of a political assassination, to get rid of him.  He moved about whilst in hiding, but at one place where he had been hiding the authorities hid a gun so as to be able to arrest him and accuse him of harbouring weapons.  He moved on without being caught.  After some months in hiding, he had paid a people smuggler to assist his escape from Iran.

6. He claimed that he feared persecution if he were to return to Iran for having written an anti-government slogan, for allegedly having murdered a government official, for allegedly having been in possession of a gun, and because of his family background.  He also claimed that the circumstances of his departure from Iran, and the fact of his application for a protection visa also gave rise to a well-founded fear of persecution on his behalf.

7. The focus upon the applicant having a well-founded fear of persecution for particular reasons was, of course, to invite the Tribunal to conclude that the applicant met the criterion for the grant of a protection visa specified in s 36(2) of the Act, namely that the Tribunal was satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act (the Convention).  That issue in turn relates to whether the Tribunal was satisfied that the applicant is a refugee as defined in Article 1A(2) of the Convention, namely 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 fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

   THE TRIBUNAL’S REASONS

8. The Tribunal was not satisfied that the applicant had been prevented from participating in international wrestling competitions by reason of his family history. It was also not satisfied that he had been denied government employment by reason of his family history. The Tribunal also concluded that, even if the applicant had been so disadvantaged, those disadvantages were not of a sufficiently serious consequence as to amount to persecution. It is not necessary to note the Tribunal’s reasons for those conclusions in detail as, with one minor qualification addressed in [9] of these reasons, they were not matters in respect of which it was contended that the Tribunal had erred so as to expose its decision to any orders which might be made under s 39B of the Judiciary Act.

9. As to the latter conclusion, the Tribunal’s reasons were that the applicant, as a national wrestling champion, would have enjoyed “fame and fortune” in any event, so any detriment from not being able to pursue international competition was not so serious as to amount to persecution.  The applicant, in his written contention referred to below, asked rhetorically why being prevented from pursuing further wrestling achievements internationally is not persecution.  However, s 91R(1)(b) of the Act now requires that persecution involve “serious harm” to a person, and s 91R(2) defines “serious harm” in such a way that it would not include detriment of that type.  It was also in the light of s 91R of the Act that the Tribunal considered that any ineligibility for government employment did not amount to serious harm, and therefore did not amount to persecution, as the applicant had been able to find reasonable alternative employment.

10. As to the first conclusion, the Tribunal had regard to independent country information about Iran and regarded it as “very unlikely” that the Iranian authorities would deprive that country of the chance of an international wrestling championship, and it further had regard to the freedom given to the applicant to participate in national wrestling competitions in Iran, to his national wresting achievements, and to the significant responsibility he was given whilst performing national service.  None of those matters suggested sensitivity to his status prompted by his family relationships on the part of the Iranian authorities.

11. It concluded as to those matters:

    “For all the reasons given above I am not satisfied as to the credibility of the applicant’s claims that he had suffered discrimination regarding wrestling or other issues over his family history, and while I accept that his family history would be a factor that would be taken into account when matters of national security arose in regard to the applicant, I am not satisfied that he was a person of concern to the Iranian authorities.”

12. It was the Tribunal’s approach to the balance of the applicant’s claims which principally draw critical submissions on behalf of the applicant.  It introduced its consideration of those claims with the following observations:

    “I have analysed the rest of the applicant’s claims in the light of my view that he is not a person of concern to the authorities and in the light of his evidence that he had not been involved in any political matters.”

13. The Tribunal accepted that the applicant in February 2000 had been caught up in a demonstration, that fights had broken out, and that while trying to leave the area the applicant had been hit from behind by a policeman who thought he was a troublemaker, and that the applicant had then pushed the policeman over.  It also accepted that that policeman, with others, had chased the applicant for a time.  But it was not satisfied that the applicant was pursued, as he claimed, for many hours until the early hours of the morning.  It described that claim as “highly implausible”.  It was also not satisfied that any pursuit of the applicant was because the authorities regarded him adversely by reason of his family background; if he had been recognised, the Tribunal considered the police would have given up the chase and attempted to contact him the following day.  Consequently, the Tribunal was also not satisfied “… that the claims that hang on that claim” of being pursued for so long are credible.

14. In addition, it described the applicant’s other claims as lacking plausibility.  The Tribunal was not satisfied that the applicant scrawled “Death to Khatami …” on a wall as a response to perceived police harassment, even having regard to the applicant’s claim that he was angry at Khatami for overseeing a regime which prevented him from competing in international wrestling competitions, because Khatami is Iran’s leading reformist.  It had not accepted the claim that the applicant had been excluded from international competition, but even if that were the case the Tribunal regarded it as most unlikely that the applicant would have blamed Khatami rather than the conservative forces.  Moreover, the Tribunal could not understand why the applicant would also propose to write “ … Death to Khomeini” given that Ayatollah Khomeini had died some years before.  It also said it was implausible that the applicant, having eluded the police after a chase lasting many hours, would then immediately start writing such slogans, especially as he was non-political in nature, or that he was then spotted by other police:  either he was writing the slogans in a very evident place, despite having just escaped a police chase, or he was writing the slogans discreetly so that it was improbable that he would have been identified for so doing and arrested by the police.  The Tribunal concluded:

    “In all, given the implausibilities inherent in the slogan-writing claim, I am of the very strong view that the applicant invented the claim, using names that he imagined would be familiar to foreign decision-makers, to boost an application for a protection visa.  I am not satisfied that that claim is credible.”

15. The Tribunal also regarded the applicant’s claims about his escape from a Sepah jail as lacking credibility.  That was partly because the escape described was inherently unlikely, and because independent country information indicated that persons such as the applicant would not be placed in a Sepah jail.

16. Finally, the Tribunal rejected that applicant’s claims of being falsely accused of a political assassination, or being set up for false charges by planting a gun at his residence.  On the basis of independent country information, the Tribunal considered that such action by the authorities would not be necessary as arbitrary arrest and detention in Iran is common, so the applicant could have been taken by the authorities, had they wished to detain him, without additional pretence.

17. The Tribunal concluded:

    “Given all of the above, I am not satisfied that the applicant is wanted by the police or that he had been hiding from the authorities.  I am therefore not satisfied that he left Iran to escape persecution.  I am of the view that he left Iran to seek a better standard of living overseas, like many young Iranians faced with rising unemployment in their own country.”

    It also concluded that any police action over the incident when the applicant pushed over a policeman would not have prevented the applicant from obtaining a passport and leaving Iran normally.  It was not satisfied that he left Iran illegally and so it was not satisfied that the applicant faces any punishment for illegal departure from Iran.  Even if he now had no passport, independent country information showed the Tribunal that he would be able to return to Iran, and if he could not prove that he left legally that he might have to pay a small fine, not of such magnitude as to amount to persecution.

18. The Tribunal also was not satisfied that the applicant would face persecution in Iran for being a failed asylum-seeker abroad, a conclusion reached on the basis of independent country information to which it referred.

19. The summary of its views was expressed as follows:

    “In summary, I am not satisfied that the applicant faces discrimination amounting to persecution in Iran on the basis of his family history; I accept that he had been involved in a minor incident with a police officer but I am not satisfied that he faced significant problems in settling that issue without incurring great harm; I am not satisfied as to the credibility of his other claims to have been detained for writing an anti-government slogan and to have escaped from detention, been falsely charged with political assassination and possession of a gun, and to have been in hiding afterwards from the authorities; I am not satisfied that the circumstances surrounding his departure and re-entry to Iran would cause him to be persecuted.  In view of all this, I am not satisfied that he has a well-founded fear of persecution under the Convention in Iran.”

    THE GROUNDS OF REVIEW

20. Counsel for the applicant orally argued only one ground upon which an order under s 39B of the Judiciary Act was sought. It was that the Tribunal erred in law by analysing only some of the applicant’s claims against the background of his family history, rather than examining the totality of his claims against that background. It was contended that that error pervaded the Tribunal’s consideration of all his claims, other than those of persecution by being deprived of the opportunity to participate in international weight-lifting competitions and of the opportunity of government employment. Emphasis was placed upon the Tribunal’s remark in introducing its consideration of all but those two claims set out in [12] above, that the Tribunal had the view that the applicant is not a person of concern to the authorities and had not been involved in any political activities.

21. It is contended that that amounts to jurisdictional error such as to invalidate the Tribunal’s decision, being of the kind discussed in Craig v State of South Australia (1995) 184 CLR 163 at 179 and in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 21. Finally, it is contended that s 474(1) of the Act does not operate to render the Tribunal’s decision immune from review if such a jurisdictional error is made out.

22. The applicant separately submitted to the Court a written submission. Rather than defer the hearing, I received it through his counsel as part of the contentions on his behalf, although his counsel had not had a full opportunity to consider it. I indicated that I would have regard to it to the extent that it identified any grounds which might enliven the Court’s powers under s 39B of the Judiciary Act. That document does not, in my view, raise any such matters. It refers to findings of the Tribunal, and alleges that some of those findings are in error. In my judgment the nature of the alleged errors is factual. It is not said that any of them are the consequence of any misunderstanding or misapplication of the law, nor that they involve any jurisdictional error on the part of the Tribunal. I do not consider, therefore, that those alleged errors even if established would entitle the Court to set aside the Tribunal’s decision under s 39B of the Judiciary Act. The alleged errors include that the independent country information about Iran upon which the Tribunal relied was not correct, that the applicant performed his military service in the engineering and construction service of the police force as a construction worker and not in some responsible and sensitive area, and that his ability to escape from the Sepah prison was not so extraordinary as the Tribunal seemed to think. Those matters are not ones which, if made out, would amount to jurisdictional error on the part of the Tribunal. The balance of the document does no more than to seek to reargue the merits of the Tribunal’s findings of fact based upon the evidence which was before the Tribunal. That the Tribunal might have reached different findings of fact, perhaps with the benefit of further evidence, does not mean that it has committed any jurisdictional error. Such errors, if made out, are errors within jurisdiction. I add that I am not persuaded that the Tribunal fell into the factual errors alleged by the applicant. I have simply taken the applicant’s written contention at its face value to identify whether it could then provide a ground to set aside the Tribunal’s decision. In my judgment, it could not.

23. The incidents which, according to the applicant, sparked the direct interest of the authorities in him were those which occurred on 25 February 2000:  his assault on the policeman, his initially successful evasion from arrest, his slogan writing, and his detention.  Those incidents were then followed by his escape from detention, the attempts to falsely accuse him of offences, and his illegal departure from Iran.  The Tribunal’s consideration of all of those matters is said to be infected with the legal error of not being addressed against his family background as accepted by the Tribunal.  That error is said to flow from the Tribunal’s approach to its consideration of those claims as expressed in the passage quoted in [12] above.

24. It is of course clear that the Tribunal’s reasons should not be approached with an eye keenly attuned to the perception of error:  see Minister for Immigration & Ethnic Affairs v Wu (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 271-272 and per Kirby J at 290-293. As the majority said at 272:

    “ … the reasons of an administrative decision maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern some inadequacy may be gleaned from the way in which the reasons are expressed.”

    In my judgment, the criticised passage in the Tribunal’s reasons that the applicant “is not a person of concern to the authorities” does not amount to the Tribunal from that point ignoring the applicant’s family background, or assessing his claims as if that family background did not exist. I consider that the passage represents a finding by the Tribunal that, despite his family background, the applicant was not himself perceived by the Iranian authorities as having political views adverse to the ruling interests. The Tribunal then proceeded to note that in fact the applicant had not been involved in any political matters to that time. That finding reflects the Tribunal’s consideration of, and rejection of, the applicant’s claims to have been the target of discrimination in his sporting and employment activities. As noted above, the applicant through his counsel does not now contend that the Tribunal committed error in such a way as to engage s 39B of the Judiciary Act in its rejection of those claims, although the applicant’s written contention seeks to re-argue those conclusions.

1. I also consider that, on proper consideration of the Tribunal’s reasons, it did have regard to the applicant’s family background when considering the claims emanating from his involvement in the demonstration on 25 February 2000.  It accepted that he had pushed over a policeman and had then been pursued for a time.  It expressly considered whether his family background, if known to the police at the time, might have been a reason why his claim to have been pursued over several hours was or might be correct.  It said:

   “I am not satisfied that the applicant would have been chased in the way he claims as a result of his family background as I am not satisfied that this background caused the authorities to regard him adversely.  The claim lacks plausibility in any case.  In a hypothetical scenario where police were irate about a sudden action by a person, and they knew the person to have a suspect family background, and the person had run out of sight, I consider that the following would happen:  the police would not lose dignity and waste time and energy by chasing him for hours: instead, they would, if they were absolutely determined to chastise him, simply have called at his home the next day (having known the address, because they knew his family background) and reprimanded him or charged him for knocking down an officer and running away.”

   Included in that passage is the distinction between the authorities’ awareness of the applicant’s family background on the one hand, and their views of the applicant himself on the other.  In my view the recognition of that distinction indicates that the Tribunal did not confuse those two matters and did not overlook the applicant’s family background by its finding that the applicant himself was not until then of interest to the authorities.

2. The Tribunal’s rejection of the applicant’s claims to have written an anti-government slogan, and to have been detained as a result, and then to have escaped from that detention, and to have been the target of false charges, were all based upon its consideration of the applicant’s own evidence and to some degree independent country information.  Its reasons are referred to above.  The authorities’ perception of the applicant or of his family background was not a consideration.  It was not contended that his family background should somehow have informed the Tribunal’s conclusion in respect of those matters so as to lead to a different conclusion.  The same can be said of its rejection of the claims that the applicant left Iran illegally using a false passport, and that he would be treated with suspicion because he had sought asylum abroad.

3. In addition, the Tribunal’s recognition of the possible relevance of the applicant’s family background to its assessment of those claims also emerges towards the end of its reasons. In the passage quoted at [19] above, it refers expressly to the applicant’s family history. In the immediately preceding paragraph of its reasons, it said:

   “I am not satisfied that an accumulation of factors such as the applicant’s family history, the altercation with a policeman, decision to travel out of Iran, and failed application for asylum abroad, would cause the applicant to be persecuted where the factors individually might not have resulted in severe harm.  As stated previously, I consider that the Iranian authorities view the applicant as being a person of no political concern to them given his individual history, and his decision to depart Iran would simply been [sic] seen as being like the decision of other Iranian youth to leave in search of greener pastures.  Thus I find that he would be treated in the manner described in the independent evidence given above and not face a real chance of persecution.”

   In my judgment, those passages reinforce the reading of the Tribunal’s decision which I have adopted.  Accordingly, I am not persuaded that the Tribunal, in assessing the applicant’s claims arising from or as a result of his involvement in the demonstration on 25 February 2000, failed to have regard to his family background.

4. Consequently, I do not accept that the Tribunal committed any jurisdictional error in addressing the applicant’s claims.  It is not necessary in the circumstances to consider the scope of operation of s 474(1) of the Act.

5. I order that the application be dismissed.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:            16 April 2002

Counsel for the Applicant:	Mr J Costello
Solicitor for the Applicant:	CB McDonough & Co
Counsel for the Respondent:	Dr M Perry
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	28 March 2002
Date of Judgment:	24 April 2002