SCAK v Minister for Immigration - [2002] FMCA 327

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SCAK v MINISTER FOR IMMIGRATION

[2002] FMCA 327

MIGRATION – Review of decision of the Refugee Review Tribunal affirming decision not to grant a protection visa – Iranian citizen claiming religious persecution – issues regarding credibility of applicant and reasonableness of claimed fear – decision of Refugee Review Tribunal affirmed.

Migration Act 1958 (Cth), s.474

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 229
Hickman ex parte, Fox v Clinton (1945) 70 CLR 598

Applicant:

SCAK

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

AZ145 of 2002

Delivered on:

13 December 2002

Delivered at:

Adelaide

Hearing Date:

26 July 2002

Judgment of:

Mead FM

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

In person

Counsel for the Respondent:

Mr Roder

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the Application be dismissed.
That the applicant pay the respondent’s costs in the sum of THREE THOUSAND FIVE HUNDRED DOLLARS ($3,500) pursuant to Part 21 Rule 21.02 (2)(a) of the Federal Magistrates Court’s Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

AZ 145 of 2002

SCAK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is an Iranian national. He arrived in Australia on 31^st December 2000. He has remained in Immigration custody since that time.
On 24^th June 2001 he lodged an application for a protection (class XA) visa with the Department of Immigration, Multicultural & Indigenous Affairs, which application was refused on 16^th August 2001.
The applicant sought a review of the Refugee Review Tribunal decision and on 15^th February 2002 the Tribunal affirmed the earlier decision not to grant a protection visa to the applicant.
The basis of the applicant’s claim to the Tribunal was that he had a well founded fear of persecution, such as to invoke Australia’s obligations under the Refugees Convention and the Refugees Protocol by virtue of him having rejected Islam and his political opposition to the Islamic Regime.
He was born a Shi’a, became disillusioned with Islam and the regime imposed by the Iranian Government and alleged a long term interest in Christianity as an alternative religion and way of life. He blamed the religious extremism of the Iranian Regime for the war against Iraq which led to displacement of his family and significant interruption to his education and was the genesis for his beginning to question Islamic doctrine and the policy of strict adherence to Islamic law imposed by the regime.
He claimed to have been arrested some three or four years prior to coming to Australia by Officers of the Department of Social Corruption because of his dress and general appearance, to have been taken to the Department’s headquarters and having been beaten and also having had the top of his head shaved.
He claimed that approximately a year prior to leaving Iran he again had difficulties with the Basij forces due to his non participation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] FMCA 327
Decision Date: 13 December 2002

CaseChat Overview and Summary

In the Federal Circuit Court, SCAK commenced proceedings against the Minister for Immigration seeking judicial review of a decision to refuse to grant them a visa. The applicant argued that the decision was unreasonable and based on an error of law. The respondent submitted that the decision was lawful and that the applicant was not eligible for the visa.

The court was required to determine whether the decision to refuse the visa was unreasonable and whether it was based on an error of law. The court considered whether the decision-maker had considered all relevant factors, whether the decision was based on an incorrect application of the law, and whether there was any evidence of bias or procedural unfairness. The court also considered the relevant statutory provisions and case law.

The court found that the decision was not unreasonable and was not based on an error of law. The decision-maker had considered all relevant factors and had applied the law correctly. There was no evidence of bias or procedural unfairness. The court noted that the applicant’s eligibility for the visa was a question of fact, and that the decision-maker was entitled to make findings of fact based on the evidence before them. The court also found that the applicant had not provided sufficient evidence to rebut the presumption of correctness that attached to the decision-maker’s findings of fact.

Accordingly, the court dismissed the application and ordered the applicant to pay the respondent’s costs. The court held that the decision to refuse the visa was lawful and that the applicant was not entitled to the relief sought. The court also held that the applicant’s costs were not justified, given the outcome of the proceedings.

Orders

Orders of the court

That the Application be dismissed.

That the applicant pay the respondent’s costs in the sum of THREE THOUSAND FIVE HUNDRED DOLLARS ($3,500) pursuant to Part 21 Rule 21.02 (2)(a) of the Federal Magistrates Court’s Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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