SCAF v Minister for Immigration
[2004] FMCA 528
•17 September 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SCAF v MINISTER FOR IMMIGRATION | [2004] FMCA 528 |
| MIGRATION – Review of decision of the Refugee Review Tribunal. |
Judiciary Act 1903 (Cth)
Migration Act 1958
Gamaethiege v Minister [2001] FCA 565
Plaintiff S157 of 2002 v Commonwealth of Australia 195 ALR 24
Minister for Immigration, Multicultural Affairs ex parte applicant 134 of 2002 (2003) 195 ALR 1
Minister for Immigration and Multicultural Affairs and Yusef (2201) 180 ALR
Craig vs South Australia (1995) 184 CLR 163
Minister for Immigration and Multicultural Affairs; ex parte Durairajasinghan (2000) 74ALJR 405
| Applicant: | SCAF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | AZ148 of 2002 |
| Delivered on: | 17 September 2004 |
| Delivered at: | Adelaide |
| Hearing date: | 22 August 2002 and further written submissions June 2003 |
| Judgment of: | Mead FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Costello |
| Solicitors for the Applicant: | Refugee Advocacy Service of South Aust Inc. |
| Counsel for the Respondent: | Mr Tredrea |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the application do stand dismissed.
(2)That the applicant pay the respondent's costs assessed in the sum of FOUR THOUSAND DOLLARS ($4,000) pursuant to Part 21 Rule 21.02 (2) (a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
AZ148 of 2004
| SCAF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for a review of a decision by the Refugee Review Tribunal (The Tribunal) which affirmed the primary decision of a delegate of the respondent, refusing under Section 65 of the Migration Act (Commonwealth) "The Act" to grant the application of the applicant for a protection visa on the basis that the criteria for the grant of that visa was not met. The application was brought to the Court pursuant to Section 39B of the Judiciary Act (1903) (Commonwealth).
The applicant, a citizen of Iran, arrived in Australia on 31st December 2000.
On 24th July 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (the Act).
On 23rd August 2001 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection (Class XA) visa and on 24th August 2001 the applicant applied for review of that decision.
On 25th January 2002 the Tribunal handed down its decision about affirming the delegate's decision.
In an unauthorised arrivals interview conducted at Woomera on 13th January 2001, the respondent claimed to be aged 24 years and having been born in Iran. He claimed to be Shia Muslim and to speak Arabic and Farsi. He claimed to be unmarried, to have entered Australia illegally by boat and said that he had a genuine passport that had been issued in Iran but a smuggler had taken it in Indonesia.
He said that the main reason that he left Iran was due to an lack of freedom and employment prospects. He said the pay was very low in his brother's shop and there was also a lack of progress. He said he was not allowed into recreation parks on his day off as that was only for family groups and if he wanted to walk around with his girlfriend they would be questioned by the moral discipline group. He said young people in country towns were not valued enough and did not have any means of entertainment. He said that is why he decided to migrate to Australia. He said that he came to have means of progress for himself to have prospects. He said he had begun to plan leaving Iran 2 months prior to the interview and that he left his country because time and human beings are not valued much and he did not have freedom and prospects. He said he heard a lot of good things about Australia, about freedom and acceptance of migrants and that individuals are respected in Australia which is why he chose Australia as his destination.
On 23rd July 2001 the applicant signed an application and "an application for an applicant who wishes to submit their own claims to be a refugee". It was an application for a protection (Class XA) visa.
The applicant said inter alia that he had departed Iran at the Tehran airport with a false passport in his own name and that he had to pay a bribe for that to be issued. He said that he had not been allowed to obtain a passport. He said that the smuggler took the passport from him in Indonesia and that it was a false passport.
He said that after leaving Iran he phoned his family from Malaysia, Indonesia and Australia. They told him that one of his brothers had been killed after he left Iran. He said that people from the engineering section of the Department of Agriculture came to the family home where they had a farm and said the land belonged to the government and that the government could take it away from the family. He said his brother was working on this land and that he and some others objected to what the people from the Department were saying, there was a clash and his brother was killed.
On the same day a statement was taken from the applicant with the assistance of an interpreter in the Farsi language.
The applicant said he was nearly 25 years old, a citizen of Iran, of Arab ethnicity and Shia religion.
He said that in 1970 his family were living in Iraq but they were forced to leave Iraq and move to Iran and lived in the Bostan region of Iran. He said his family purchased some farming land and a home with the money they bought with them from Iraq, that about 1980/1981 the war between Iraq and Iran started and Iraq attacked the southern region where his family were living. He said one of the regions taken by the Iraqi forces was the Bostan region and that he was 3 or 4 years old at the time. He said his family was forced to leave the region because it was a war zone and if people lived there they would be in danger. He said that when they were escaping military personnel started shooting and they killed some people including his grandfather. He said that he was run over by a car whilst they were escaping and he still has scars from that. He also suffered a broken nose. He said he was taken to hospital by his family.
He said for a while the family lived in Soeseh in Ahwaz and after a while that also became a war zone region and they had to go to a place called Behbahan. He said the family also lived in Qoam for a while.
He said after the situation settled the family returned to the region of Soeseh approximately 25 kilometres from Ahwaz, bought about 20 acres of land and the applicant started to work on the land.
He said in February 2000 a few engineers came from the Department of Agriculture along with military forces, said the land belonged to the government and was regarded as government property and that they could take the land from the family.
He said all of his brothers are illiterate, he was the only one who was literate and he and his father were taken to the military headquarters and told to sign a form otherwise they would be regarded as breaking the law and sent to prison. He said they were given a week in which to decide whether or not to sign the documents, they refused, said the land was their land and he and his father and a few other people were then detained in the station for one month. He said that after one month's detention they were blindfolded and taken to another place where the authorities kicked them and swore at them and they were forced to sign the forms. After a while they were freed.
He said the government took the land and fenced it and there was a heavy clash between people and the military forces and some people were killed including his brother.
He said about 5 or 6 months before he left Iran his father told him to go and live with his paternal uncle because his father said his, the applicant's life, was in danger.
He said he stayed there for one month and heard that some of his friends were arrested because they had torched the land that had been taken by the authorities and they had clashed with the authorities in a heavy clash. He said his brother Ahmad was killed. He said he was not there at the time but the authorities believed he had been there.
The applicant said that the authorities frequently came to their home and threatened his father, his mother and his brother that if they didn't deliver him, the applicant, to the authorities one of his brothers would be imprisoned.
He said the authorities believed that he had participated in the riots and clash although he had not done so.
He said because of that he feared for his life and fled Iran. He said it is safe for the rest of his family to stay in Iran because they do not have a record with the authorities who believed he had been involved in the clash. He said they have his name and that his life is in danger. He said his parents managed to get some money which they paid to a smuggler to get him out of the country from Tehran airport.
The applicant said since he left Iran he had spoken to his family who had told him that his brother Ali was killed after he left when he was involved in another dispute over the land.
He said Arabs in Ahwas are regarded as second class people and are discriminated against and ridiculed. He said they are persecuted within the community, for example the Iranian authorities made a film called "Arooseh Atas" which means the "Bride of Fire".
He said by making the film the authorities were saying that all the traditions and beliefs of Arabs are only superstitious and not true and that their beliefs and traditions were ridiculed.
He said this is against the rules of the Iranian regime and according to the Islamic Rule all the people of any group or race are equal.
He said unfortunately they did not see that acted on, that the Arab people objected to the film and the local Arabic newspaper printed an article asking the authorities to require the people who made the film to apologise. He said it was reported to the local member of parliament and to parliament but the government didn't do anything about it.
He said one of his brothers was living in an apartment which was given to Arab people who were affected by war, and he didn't know exactly when but about 9 or 10 months before the interview the authorities bulldozed the building.
He said he could not go back to Iran because his life was in danger and that the authorities would either kill him or put him in prison. He said that was why he left the country and that if his life wasn't in danger he wouldn't have left.
He said that if he returned he would be harmed or mistreated by the Etelaat (security forces) because there was a clash about the land, his brother was killed and he was accused of co-operating in the clash when he was not there at all. He said if he returned he would have the same fate as the other people, namely he would be killed.
He said if he returned he would not be protected by the authorities because it is the government's claim that the lands belong to him with the families claiming that the land is theirs.
A letter was forwarded to the Case Officer, Onshore Protection by McPherson and Kelly on behalf of the applicant on 21st August 2001 enclosing a cutting from an Arabic newspaper L-Telegraph apparently translated by the applicant. It referred to a dispute between police and army soldiers apparently under orders of the Iranian Government and residents of Arab ethnicity in a particular village in relation to land and referred to the killing and wounding of people of Arab ethnicity in the area.
By letter dated 23rd August 2001, the applicant was advised that he had been refused a protection visa by the delegate of the Minister.
An application for review of that decision was filed and by further letter dated 24th September 2001, the Tribunal advised the applicant that it was not prepared to make a favourable decision on the written material it had to hand and invited the applicant to give oral evidence at a hearing at Woomera on 15th October 2001. The applicant accepted that invitation and by letter dated 12th October 2001 further detailed submissions on behalf of the applicant were forwarded to the Tribunal by the applicant's solicitors.
The hearing on 15th October 2001 was adjourned to 25th October 2001 and by letter dated 17th October 2001, a further statement of the applicant was provided to the Tribunal by the applicant's solicitors.
In that statement the applicant said that in January 1999 the government in Iran declared that some farmers had to give their lands to the government. He said he and his father presented themselves to the local administration together with other farmers to sign the forms which were kept in a yellow envelope. He said they were told to sign different papers and weren't shown the forms at all and then arguments started and the government decided to give them a weeks more time to sign the documents.
He said during that week they gathered together and defied the government and did not sign the forms and riots resulted. He said they were in a panic situation and his father ordered him to go to his uncle's house and whilst there he heard that the authorities had killed his brother with some other Arab people.
He said his father told him to go to Tehran to obtain a passport and that his father paid the costs of the passport which was obtained from Ahwaz.
He said that while he was in Malaysia he contacted his family and was told by his father that his brother had been killed by the government and that he should not return to Iran.
He said that in the beginning he wasn't in agreement to participate during the riots against the government and tried to stop his brothers from participating. He said that he and his father were the only ones who went to the local administration to give their lands to the government.
He said in his initial interview on arrival in Australia that the passport was correct and that it belonged to him and he said that he claimed that was so because the date was entered in the computer under the name of Mohammed Neesi but the photo was of him, the applicant.
He said in his initial interview he did not mention he was under the persecution of the Iranian government because he was in fear not to disclose Iranian government issues to Australian authorities which he thought would put his family in danger. He said that when "Mr Tony" talked in a gathering in the Mess (presumably at Woomera) and assured all of the residents that every gathering and meeting is confidential, that he then found the courage to express his views and he now says that two of his brothers have been killed by the Iranian Government and that was the reason that he went to his brother's house.
The applicant appeared at the hearing before the Tribunal on 25th October 2001 and had a solicitor representing him.
By letter dated 13th December 2001, he was asked to provide the original of the newspaper article that had been forwarded to the Case Officer, Onshore Protection in the letter from his solicitor dated August 21st, 2001.
By letter dated 13th December 2001, the applicant was asked by the Tribunal to make any comments he may wish in respect of the inconsistency between interviews as to the reasons for leaving Iran and advised that the inconsistencies affected his credibility and the conflict in his claims as regards how he left the country and what travel documents he had in light of the information available to the Tribunal as to the ability of a person to leave Iran via an airport. He was advised the information was relevant because inconsistencies in his own evidence and the inconsistencies between his evidence and the independent evidence available to the Tribunal were material and significantly and adversely affected his credibility. Those issues were responded to in a letter to the Tribunal from the applicant's solicitor dated 20th December 2001.
On 25th January 2002, the Tribunal affirmed the decision not to grant the protection visas.
An application for review of that decision was filed in the Federal Court of Australia, South Australian District Registry on 21st February 2002, wherein the applicant sought a review in the Federal Court of Australia pursuant to Section 39B of the Judiciary Act (1903) (Commonwealth). The application sought orders for constitutional writs.
The application was supported by an affidavit of the applicant which simply annexed a copy of the Tribunal's decision.
An amended application was filed in the Court on 25th February 2002 but I am unable to see how that differed in any way from the original application.
A further affidavit was filed on the same day again referring to the Tribunal's decision as being annexure "A" but in fact annexing a facsimile of the decision to the applicant and a letter from the Collector of Public Monies, Department of Immigration and Multicultural Affairs.
On 26th March 2002 His Honour Justice O'Loughlin ordered the respondent to file and serve copy documents by 3rd April 2002, the applicant to file and serve further particulars of the applicant by 10th April 2002, the applicant if so advised to file and serve a supplementary book of documents by 10th April 2002 and file and serve contentions of fact and law by no later than 10th April 2002, with the respondent to file same by no later than 17th April 2002.
On 23rd April 2002 the matter was adjourned to 11th June 2002 and on that day the matter was remitted to the Federal Magistrates Court. It was heard on 21st August 2002.
Outlines of submissions were filed on behalf of both the applicant and the respondent and Mr Costello of counsel appeared for the applicant and Mr Tredrea of counsel appeared for the respondent.
At the time of the hearing the whereabouts of the applicant were unknown as he had absconded from the Woomera Detention Centre and had not been located.
At the outset of his submissions Mr Costello advised the Court that he would not proceed in relation to the issue of whether or not the Tribunal had proceeded in "good faith". He said however that he was not abandoning that argument and had no instructions to abandon the argument.
He argued that the Tribunal's approach showed that it did not address the applicant's claims by asking whether he had a well founded fear of persecution, but rather by asking whether there was evidence which would enable it to reject his claims and as such the Tribunal's decision was invalid and subject to review.
Mr Costello argued that the applicant had valid reason for claiming a well founded fear of persecution for a convention reason. He said that the finding of the Tribunal in the last paragraph of page 142 of the Court Book indicated that the approach of the Tribunal was fundamentally flawed.
The Tribunal said "The Tribunal finds that the claims made by the applicant of discrimination against Arabs were made in the context of his later claims which the Tribunal has already found were fabrication. The Tribunal finds that they were made to bolster his claim for a protection visa. The Tribunal finds that the comments made by the applicant at the entry interview indicate the true reasons he left Iran. The Tribunal finds that they do not support a conclusion that the applicant faces a real chance of treatment which would be so serious as to amount to persecution in the convention sense".
He argued that it was incumbent on the Tribunal to reach a conclusion as to whether the applicant was a Shia' Arab, whether Shia Arabs are a group discriminated against and then, is the Tribunal able to conclude on that ground that the applicant has a well founded fear of persecution. He submitted that those findings have to be made as a pre-requisite to any decision in relation to the granting or otherwise of the protection visa. He said the Tribunal compounded the problems because it was not prepared to give weight to the witnesses called on the part of the applicant.
At the first hearing on 15th October 2001, the Tribunal took evidence from two witnesses at the Woomera Detention Centre. Their evidence is set out on pages 127 and 128 of the Court Book.
Mr Costello submitted that the evidence of the witnesses established or supported a conclusion that the applicant was from Ahwaz, that he was Arab, that many Arabs lived there and that there are riots and clashes between civilians and the military over land which results in confiscations of land, that the applicant's brother was killed and that Arabs and Ahwaz are subject to persecution.
He submitted that when the Tribunal referred at page 142.8 of the Court Book to giving no weight to the applicant's witnesses as their evidence was based entirely on what the applicant had told them that the Tribunal had missed the point. He said the evidence of the witnesses was not directed simply to the applicant's circumstances and that the proper approach to such evidence, namely evidence that would tend to support the applicant's claim at least in part was the approach suggested by Finklestein J in Gamaethiege v Minister [2001] FCA 565 at paragraph 54.
He submitted that the applicant was a member of an ethnic division namely Arabs in Ahwaz, which based on the country information referred to by the Tribunal is where most Shia' Muslims are based.
He said a finding then needs to be made as to whether it is likely or probable that the applicant is a Shia Muslim before the Tribunal can go to the next step, and if so is he subject to discrimination. He said the witness' evidence corroborated the evidence of the applicant that the Shia' Arabs in that area are subject to discrimination.
Mr Costello submitted that without the Tribunal turning its mind to those fundamental matters it could not have carried out its duty.
He said the criticism of the Review Officer was a failure on the part of that officer to determine if the applicant was a member of a particular social group.
He submitted that on the proper reading of the Review Officer's reasons, the officer focused on the applicant's first claim, namely the applicant's claim to have a well founded fear of persecution and that such a claim was effectively rejected on credibility grounds.
He argued that it was incumbent on the Review Officer to address issues appropriate to determine the fundamental question of whether the applicant is what he claims to be, and if so, is he a member of a group that is subject to discriminatory behaviour. He argued that the information set out on page 134 of the Green Book illustrated that that central question was not addressed by the Review Officer.
Mr Costello argued that on the material set out in the reasons for decision, it could not be said that there was even close to a proper foundation for a finding that the applicant's claims were not properly based.
Mr Tredrea argued that there four main topics before the Court, namely:-
a)Whether it could be said that the applicant was at risk of persecution on the basis of his race and religion;
b)The issue of the applicant's supporting witnesses and the weight given to that evidence;
c)The questions in relation to the applicant's evidence regarding the obtaining of a passport;
d)Matters of the applicant's credibility generally.
In relation to the question of whether the applicant would suffer persecution on the basis of his ethnicity, he submitted that the Tribunal accepted the applicant's claim in relation to his Arab ethnicity and Shia religion and, between pages 130 - 134 of the Court Book, set out country information in relation to Arabs in Iran. He submitted the most the applicant could point to was the extract from the Saudi newspaper by way of contrast to that country information.
On page 134.5 of the Court Book the Tribunal set out the country information to which it had regard in relation to Arabs in Iran and particularly in the area where the applicant lived.
He submitted that the issue had been properly considered by the Tribunal and even if it had been found that the applicant may be subject to discrimination, that did not equate to persecution within the meaning of the Migration Act.
In relation to the question of the applicant's supporting witnesses, Mr Tredrea submitted that in light of the privative clause, even if the Tribunal took into account irrelevant considerations or failed to take into account relevant considerations that was not an error such that the Hickman principles would be enlivened.
The conclusions of the Tribunal in respect of the witnesses was set out on page 142.7 of the Court Book with the details of their evidence having been set out on pages 127 to 128 of the Court Book.
Mr Tredrea submitted that the question of weight to be given to the witnesses evidence was a matter for the Tribunal and they clearly found the evidence to be of no assistance for the reasons set out.
In relation to the questions regarding the applicant's Iranian passport, Mr Tredrea submitted that in the case of Iranian asylum seekers there was a black list which was updated almost daily. He said people wanted by the authorities were not able to leave through airports or the like and, as set out in pages 135 - 136 of the Green Book, the discrepancies and inconsistencies in the applicant's statements were of significant concern to the Tribunal as regards the credibility of the applicant.
On pages 141 and 142 of the Green Book Mr Tredrea referred to the finding of the Tribunal that the applicant's claim that the passport on which he travelled was false and was in someone else's name was a fabrication and designed to overcome the country information.
He argued that it was significant that in relation to the applicant's first interview and the questions relating to the passport, the Tribunal had taken the view that it ought to adopt a cautious approach and had given the applicant opportunity to explain why important claims had not been made at the first interview. It was clear that the Tribunal was giving serious and careful consideration to the issues raised by the applicant and their reasoning in relation to those matters is set out clearly.
The failure of the applicant to make the claims on which he later relied at the first interview affected his credibility. The Tribunal were aware of that, they raised the issue with him and they afforded him an opportunity to explain, as well as then properly considering his explanation.
Ultimately the Tribunal made findings in relation to credit which is in the province of the Tribunal.
Subsequent to the hearing in this matter the High Court considered the issues relating to privative clauses in Plaintiff S157 of 2002 and Commonwealth of Australia 195 ALR 24 and the Minister for Immigration, Multicultural Affairs ex parte applicant 134 of 2002 (2003) 195 ALR 1.
Further written submissions were then received from Mr Costello of Counsel for the applicant and by Mr Tredrea of Counsel for the respondent.
Mr Costello further referred to the claim of the applicant that the Tribunal incorrectly determined not to take into account relevant material, namely the evidence of two corroborative witnesses and referred to Minister of Immigration and Multicultural Affairs and Yusef (2201) 180 ALR McHugh, Gummow and Hain JJ (with whose reasons Gleeson CJ agreed) at paragraph 83 "in particular, it is important to recognise that, if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it exceeds its authorities or powers. If that is so, the person who purported to make the decision did not have the jurisdiction to make the decision he or she made and the decision was not authorised by the Act".
He submitted that the sole expressed reason for rejecting the evidence of the witnesses was that their knowledge was based entirely on what the applicant had told them but submitted that the evidence of the witnesses was in part at least supported by the independent country information.
He submitted the Tribunal was required to take that relevant material into account because it had a tendency to make it more likely than not that the applicant's claims were true or probable and that the failure to do so resulted in a decision involving jurisdictional error, that in law the decision was no decision at all and is accordingly susceptible to review.
Mr Tredrea referred to the Tribunal's decision and the fact that its decision was based upon its findings upon:-
a)Claims about an imputed (or actual) anti-government opinion as a result of the applicant's claimed resistance to the government's policy of forced land confiscations;
b)Claims concerning persecution on the basis of membership of a particular social group and/or religion, namely a Shia' Arab in Iran; and
c)Alleged persecution as a result of the applicant's departure from Iran, and applying for refugee status in Australia.
He submitted that all of the findings and the matters taken into account by the Tribunal were within the Tribunal's jurisdiction and that the applicant's challenge to that decision constituted complaints about the merits of the Tribunal's finding and (at most) the fact finding process involved in the findings.
He submitted that in fact the applicant had failed in his case before the Tribunal on credibility grounds, rather than his claims being misunderstood, neglected or ignored.
He submitted that the Tribunal did not fail to properly have regard to any of the "integers" of the applicant's claim and that there was no mis-application of the relevant criteria by the Tribunal and no jurisdictional error.
In relation to the submission by Mr Costello on what I will call the "Yusef" grounds, Mr Tredrea submitted that no such error was made by the Tribunal and, rather than the Tribunal ignoring the evidence of the witnesses, it had regard to that evidence and after giving it careful consideration gave it no weight.
Taking all these matters into account I find that the Tribunal clearly analysed the applicant's claims in detail between pages 119 and 143 of the Court Book.
Following the High Court decision of S157 of 2002 vs Commonwealth of Australia (2003) HCA2, I must determine whether there was an error on behalf of the Tribunal which would enliven the entitlement to an order under Section 39B of the Judiciary Act 1903 (Commonwealth) notwithstanding Section 474 of the Migration Act. In that case the High Court determined that the privative clause as defined in Section 474 (1) of the Migration Act, properly constructed, is a valid enactment. It also found however that if there is a jurisdictional error or a failure to comply with the principles of natural justice, the decision cannot properly be described as a decision made under the Migration Act and is thus not a privative clause decision.
In Craig vs South Australia (1995) 184CLR 163 (per McHugh, Gummow and Hayne JJ at 179) the Court found “an Administrative Tribunal exceeds its power and thus commits a jurisdictional error if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies upon irrelevant material or in some circumstance, makes an erroneous finding or reaches a mistaken conclusion in a way that affects the exercise or purported exercise of the Tribunal’s power”.
In Minister for Immigration and Multicultural and Indigenous Affairs vs Yusef (2001) 180ALR (1 at 21), the Court found that such a list of jurisdictional error was not exhaustive and that those kinds of error may well overlap.
The Tribunal is required to consider the elements of each of the claims made by the applicant. The Tribunal is empowered to exercise all the powers and discretions that are conferred by the Migration Act to consider a valid visa application made by the applicant and in doing so to have regard to all information required to be taken into account under the code of procedure, in Part 2 Division 3, Sub Division (ab) of the Migration Act.
It is apparent from the Tribunal reasons for decision that the Tribunal considered all of the factors it was required to consider. There is no indication of bad faith or bias or anything to suggest that there was a lack of procedural fairness. The Tribunal applied the correct legislation and asked itself the right questions. It invited the applicant to comment on adverse information and in other respects afforded the applicant procedural fairness. The decision was open to the Tribunal on the evidence before it.
In so far as the decision was based on the credibility of the applicant, this is a matter for the Tribunal par excellence (re Minister for Immigration and Multicultural Affairs; ex parte Durairajasinghan (2000) 74ALJR 405).
The Tribunal came to its conclusion concerning the safety of the applicant if he returned to Iran on the basis of factual findings as to the applicant's own evidence, concerns as to the credibility of the applicant and findings arising from documentary evidence relating to country information.
I find the Tribunal to have considered all matters central to its task being a proper assessment of the applicant's case.
In all of the circumstances I am unable to find any grounds upon which the applicant can support a claim that this decision should be the subject of judicial review. I do not find that there has been any jurisdictional error.
As there is no reviewable error apparent in the decision of proceedings of the Tribunal, I dismiss the application and order that the applicant pay the respondent's costs assessed in the sum of $4,000 pursuant to Part 21 Rule 21.02 (2) (a) of the Federal Magistrates Court Rules.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Mead FM
Associate:
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