SCAO v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 841

FEDERAL COURT OF AUSTRALIA

SCAO v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 841

SCAO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 63 OF 2002

O’LOUGHLIN
3 JULY 2002
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 63 OF 2002

BETWEEN:	SCAO 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, such costs 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 63 OF 2002

BETWEEN:	SCAO 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 of Iran, arrived in Australia on 25 August 2001.  He was interviewed by an officer of the Department for Immigration and Multicultural and Indigenous Affairs (“the Department”) at Woomera on 6 September 2001 (“the initial interview”).  In that interview he said that he left Iran for religious reasons; he had converted to Christianity.  On 15 November 2001, he lodged an application for a protection visa with the Department pursuant to the provisions of the Migration Act 1958 (Cth) (“the Act”). That application was unsuccessful as was a subsequent application for a review by the Refugee Review Tribunal (“the Tribunal”). The applicant now seeks the intervention of this Court. He lodged his application on 1 March 2002 and, because of the introduction of the amending legislation with effect as from 2 October 2001, his application will be subjected, (inter alia) to the privative clause provisions that are now contained in s 474 of the Act.

2. His application was in type written form; it was a pro-forma document which had obviously been prepared by a person with legal knowledge.  However, it told little of the purported errors of the Tribunal.  It claimed that the Tribunal had:

   “(a)exceeded jurisdiction in making the decision to affirm the second respondent’s decision not to grant the applicant a protection visa; and

   (b)erred in law in arriving at the decision to affirm the second respondent’s decision not to grant the application a protection visa.”

   No particulars of the alleged excess of jurisdiction and no particulars of the alleged error in law were then supplied nor have any been supplied subsequently.

3. Although the applicant initially had the benefit of legal advice in the preparation of a submission to the Tribunal he was unrepresented when the matter was called on for hearing before the Tribunal.

4. The applicant is aged twenty-one and is unmarried.  He said that he met an Iranian girl, whose name is Ghazaleah in Tehran and they began keeping company.  It transpired that she was a Christian and he was very much influenced by her attitude towards life – so much so that he became interested in Christianity and ultimately converted.  When his parents discovered this he was ostracised by them and, ultimately, he left the family home.  In his statement to the Tribunal which was prepared by his legal advisers he said:

   “I fear that if I were to be returned to Iran I would be interrogated and arrested, and that I may be killed.  Because I have left Iran illegally that is considered of itself to be a crime and would be taken by the authorities to support my other crimes.

   …

   The government and fundamental[ist] Muslims would harm me if I were to be returned.  My uncle, as one of fundamental Muslims, would also harm me.

   …

   I would be harmed because of my conversion to Christianity from Islam, because I left the country illegally and because I would be seen as anti-government because of my conversion.  I am already on the blacklist.

   …

   The authorities in Iran would not protect me because they are the people that would harm me, it is impossible that they would protect me.”

5. After the Tribunal hearing, but before the Tribunal delivered its reasons, it received a letter of support for the applicant from Sr Anne Higgins, Parish Pastoral Assistant of the Woomera-Roxby Downs Catholic Parish and the Woomera Immigration Reception Centre Chaplain.  According to the Tribunal that letter set out the applicant’s interest in Christianity and the steps that he had taken to be baptised into the Catholic church.

   THE FINDINGS AND REASONS OF THE TRIBUNAL

6. After an extensive review of the evidence, the Tribunal stated that it was not satisfied that the applicant would be at risk of persecution by the Iranian authorities or his relatives if he were to return to Iran.  The tribunal said that it had arrived at that conclusion for the reasons that it proceeded to discuss but also because it was satisfied “that the applicant is not credible in respect of certain key aspects of his claim for protection”.  The reasons that the Tribunal listed were as follows:

   ·The applicant did not impress in his demeanour and responses in giving evidence on certain key elements of his claims and he did not convince the Tribunal that he was a man who had to leave Iran in the circumstances that he had described;

   ·The applicant had asserted that he had pretended to his family that he was committed to Islam but the Tribunal concluded that he was sufficiently independently minded and mature such that he would not resort to such deception;

   ·Although the Tribunal accepted that he was fascinated by Ghazaleh and that Ghazaleh came from a good Christian family, who were practicing Catholics, it did not accept that the applicant spent much, if any, time or effort in the two years that he knew Ghazaleh pursuing a knowledge of Christianity or Catholicism.  His evidence was not, according to the Tribunal, “consistent on the manner in which he lost faith in Islam and became interested in Christianity”.

   ·The applicant’s account of his meetings with Ghazaleh in public and in his car and how he developed an interest in Christianity did not, based on the country information that was before the Tribunal, “have a ring of truth to it.  So many aspects of what should have been a straightforward and credible account are highly implausible and thoroughly unconvincing”.

   ·His knowledge of Christianity and Catholicism  “was very poor in view of his claimed interest in [Ghazaleh] and in her particular beliefs”.

   ·Despite the fact that the appellant maintained a close relationship with Ghazaleh over a period of two years he was unable to tell the Tribunal the street address of her home.

   ·On the country information, it is seriously inappropriate under Islam for an unrelated, heterosexual male and female to meet alone, yet the applicant asserted that this had been his and Ghazaleh’s practice for a period of over two years;

   ·The applicant had not attended any Christian church in Iran nor had he made any approach to any church official or sought any formal Christian instruction.  Based on the country information, the Tribunal considered that he could have done so discreetly without attracting any adverse response from the authorities.

   REVIEW BY THE FEDERAL COURT

7. It was the task of the Tribunal to assess the evidence of the applicant and the other material that was relevant to his application.  It was the task of the Tribunal to make a final assessment with respect to the application for the protection visa.  The role of this Court is to review the decision of the Tribunal for the purpose of identifying whether any reviewable error of law occurred in the reasoning of the Tribunal.  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.  Limiting myself to this exercise, I find myself unable to perceive any error in the findings or the reasons of the Tribunal.  That being the case, this Court has no jurisdiction to intervene and the application must be dismissed with costs.

I certify that the preceding seven (7) 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:	2 May 2002
Date of Judgment:	3 July 2002