SBBW v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 840

FEDERAL COURT OF AUSTRALIA

SBBW v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 840

SBBW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 44 of 2002

O’LOUGHLIN J
3 JULY 2002
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 44 OF 2002

BETWEEN:	SBBW APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	O’LOUGHLIN J
DATE OF ORDER:	3 JULY 2002
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        The Application be dismissed.

2.The Applicant pay the Respondent’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 44 OF 2002

BETWEEN:	SBBW APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	O’LOUGHLIN J
DATE:	3 JULY 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The applicant, a citizen or Iran, arrived in Australia on 6 June 2001. His application for a protection visa was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) and subsequently, after a review, by the Refugee Review Tribunal (“the Tribunal”). On 8 February 2002, he filed an application in this Court pursuant to s 39B of the Judiciary Act 1903 (Cth) seeking that writs of certiorari and prohibition be directed to the Tribunal and the Minister so that the Tribunal’s decision might be quashed and the Minister might be prohibited from acting upon or giving effect to the Tribunal’s decision. The power of this court to intervene is now subject to the amendments to the Migration Act 1958 (Cth) (“the Act”) that took effect on 2 October 2001.

2. In par 6 of his application, the applicant pleaded as follows:

   “The applicant seeks relief under s 39B of the Judiciary Act 1903 (Cth) on the grounds that the [Tribunal]:

   (a)exceeded jurisdiction in making the decision to affirm the [Minister’s] decision not to grant the applicant a protection visa; and

   (b)erred in law in arriving at the decision to affirm the [Minister’s] decision not to grant the applicant a protection visa.”

3. The application was devoid of particulars.  There is nothing in the papers to explain how or where the Tribunal exceeded its jurisdiction, nor is there any information which would or might identify any error of law.  The applicant, who acted in person on the hearing of the application, was unable to improve his lot; he merely recited his personal history seeking, in effect, to have the Court engaged in a review of the merits of his case.  His claim for refugee status was based on his fear that he would be persecuted if he returned to Iran because of his alleged conversion to Christianity.

4. The applicant is aged thirty and is unmarried.  As identified by the Tribunal in its reasons, his claim for refugee status was based upon the following facts:

   ·he had lived in an Armenian area of Tehran;

   ·when he was aged twelve he learnt that he was an adopted child as his father had found him in the street in the Armenian area when he was a new born baby;

   ·all his friends in Iran were Christians;

   ·he started working at the age of thirteen and the people with whom he worked were Christians; and

   ·he was baptised into the Armenian Apostolic Church, and on the occasion of his baptism, his hands, feet and head were washed and he was given a “tablet” which represented the body of Christ.

5. The applicant said that he told his parents of his conversion to Christianity.  His father was so upset that there was a physical confrontation and the father went to the Mosque to report him; the father was, in turn, told to report the applicant to the Revolutionary Court because he had become an apostate.  The applicant thereafter decided that he should leave Iran because he believed that the penalty for apostacy was death.

6. In addition to his religious concerns, the applicant also said that he was sentenced to seventy lashes for eating during Ramadan and that he was abused by religious police in the streets many times for walking in the company of his girlfriend.

7. Subsequent to the hearing before the Tribunal, at which the applicant had relied upon a “Christianity Certificate”, the Tribunal received information from the Department of Foreign Affairs and Trade (“DFAT”) that the Armenian Prelacy of Tehran had advised that the applicant’s “Christianity Certificate” was a forgery. That information, together with the particulars of how it had been identified as a forgery, was put to the applicant in a notice under s 424A of the Act. In his response to the notice, the applicant stated that the Armenian apostolic church had rejected his document because it did not want to put itself at risk. He further stated that he had contacted a clergyman who had promised to send him a copy of his membership of the church. His response to the Tribunal was supported by his adviser who wrote that her client believed that his certificate was genuine and he believed that the Armenian church was under pressure from Iranian authorities to deny the validity of the document to save the church from adverse attention by the authorities. Despite the Tribunal giving him time within which to produce the corroborating evidence, no such evidence was ever produced.

8. The Tribunal accepted that the applicant was an Iranian national and it accepted that he was an adopted child, but the Tribunal rejected the fundamental religious claims of the applicant.  It reminded itself of the need to be sensitive to the difficulties that faced asylum seekers; it recognised the need to give to such people the benefit of the doubt in appropriate cases where a claimant is unable to substantiate all of his or her claims.  But as the Tribunal went on to say, correctly in my opinion:

   “However, I am not required to accept uncritically any and all allegations made by an applicant.  In addition, I am not required to have rebutting evidence available to me before I can find that a particular factual assertion by an applicant has not been made out.  Moreover, I am not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.  See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547. If I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence, I must proceed to assess the claim on the basis that the claim might possible by true.”

9. The Tribunal set out in some detail its reasons for not accepting the applicant’s claims.  In the first place, the Tribunal noted that despite his alleged exposure to the church “he could tell me virtually nothing about the Armenian Apostolic church, its practices or its beliefs”.  Secondly, the Tribunal said that information that it had obtained from the Armenian Apostolic church indicated that only Armenians and people who are married to Armenians can be baptised into the church unless special permission has been obtained from the head of the church.  Thirdly, the Tribunal found that the applicant’s account of why he had not been detained prior to his departure from Iran and his account of his departure from Iran lacked credibility.  Finally, there was the problem of the false Christianity Certificate and the fact that the applicant, having claimed that he spent many years seeking baptism in the Armenian Apostolic church whilst in Iran had done nothing about contacting the Armenian Apostolic church in Australia since his arrival.  The Tribunal said:

   “Overall, I consider the applicant’s evidence concerning his alleged conversion to Christianity in Iran to be lacking in credibility.  I am of the view that the applicant fabricated his claim to have been baptised in Iran in an attempt to create for himself the profile of a refugee.  I do not accept that the applicant was baptised.  As I do not accept that the applicant was baptised, it follows that I do not accept that he had confrontations with his father and the Friday prayer leader about this issue.  It also follows that I do not accept that the applicant faces charges of apostasy.”

10. The Tribunal accepted the applicant’s evidence concerning his punishment for eating food in public during Ramadan; it also accepted that he was abused for being in the company of his girlfriend.  That, as the Tribunal pointed out, there was no evidence that pointed to the authorities having any continuing interest in him because of either or both of these incidents.  The Tribunal viewed them as isolated instances where the authorities had responded to breaches of the general law.

11. The conclusion at which the Tribunal arrived was one that was open to it.  It would be difficult, if not impossible, for this Court to intervene and reject its findings on credit.  As McHugh J said in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]:

    “In addition, the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its findings that the prosecutor’s claims that members of PLOTE tried to recruit him were “utterly implausible”.  However this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is a function of the primary decision maker par excellence.  If the primary decision maker stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed.  The Tribunal must give reasons for its decision, not the subset of reasons why it accepted or rejected individual pieces of evidence.  In any event, the reason for the disbelief is apparent in this case from the use of the work “implausible”.  The disbelief arose from the Tribunal’s view that it was inherently unlikely that events had occurred as alleged.”

12. The applicant has been unable to point to any reason which would justify this Court’s intervention.  The bona fides of the Tribunal and its decision were not attacked and nothing that resembles jurisdictional error is apparent.  In these circumstances, the application must be dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Loughlin.

Associate:

Dated:             3 July 2002

The Applicant appeared in person
Counsel for the Respondent:	Mr MJ Roder
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	20 June 2002
Date of Judgment:	3 July 2002