SCAQ v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 760

FEDERAL COURT OF AUSTRALIA

SCAQ v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 760

Migration Act 1958 (Cth)

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

SCAQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 65 0F 2002

O’LOUGHLIN J
17 JUNE 2002
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 65 OF 2002

BETWEEN:	SCAQ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	O’LOUGHLIN J
DATE OF ORDER:	17 JUNE 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 65 OF 2002

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

JUDGE:	O’LOUGHLIN J
DATE:	17 JUNE 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The applicant, a citizen of Iraq, arrived in Australia on 20 August 2001 without documentation.  On 10 September 2001, he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) pursuant to the provisions of the Migration Act 1958 (Cth) (“the Act”). His application was unsuccessful and he sought a review of that decision by the Refugee Review Tribunal (“the Tribunal”). Again he was unsuccessful. On 1 March 2002 he lodge an application in this Court to review the decision of the Tribunal.

2. His application 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.”

3. 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.  The application for review was typed and was in a form that is becoming quite common in this registry.  It had obviously been prepared by some well meaning person with legal experience.  However, I venture to suggest, having regard to the facts of this case, that the well meaning intentions of this unknown person have been misplaced.  By assisting the applicant in the preparation of his application, a false hope has been enlivened in the applicant – only to be dashed many months later when his application is dismissed by the Court.  It would be much kinder to the applicant (and to others like him) if volunteer legal advisers used their time and their skills to explain why such an application as this would be doomed to failure.

   THE APPLICANT’S CLAIMS

4. The applicant claimed a well-founded fear of persecution as a citizen of Iraq because:

   ·     he had falsely been accused of being a member of a political opposition party by a senior Ba’ath Party official.  That accusation had been made, so the applicant claimed, because he had chosen to marry another woman rather than the official’s daughter;

   ·     he was of the Shia Muslim faith; and

   ·     he had sought asylum in Australia.

5. The applicant is aged thirty-one.  When asked to describe his marital status, he gave the answer: “unconsummated marriage … married by contract, wife in Iraq.  Been to court to register the marriage.  No public ceremony yet”.

6. The applicant told the Tribunal that he had been having an affair with a girl named Rana for five years and that he had signed a marriage contract with Rana in March 2001.  According to the applicant, that constituted their legal union even though there had not been a “marriage” as part of a religious ceremony.  Meanwhile, another lady named Iman, a friend of the applicant’s sister, had been a regular attender at his home and, so he thought, Iman was in love with him.  A few days after he and Rana had become husband and wife, Iman had visited him in his shop and had insisted that he get rid of Rana and marry her (Iman).  When he refused to do this, she threatened that if he did not do what she asked, she would do him a great harm.  Shortly afterwards, he heard that the security forces were interested in him and some security agents had tried to gain admittance to his home at night.  The Tribunal recorded:

   “He had run away to Baghdad and stayed with an aunt.  He had been told that the security agents had been told by Iman’s father, an official of the ruling Ba’th Party, that he was a member of the Al Da’awa Party [which is opposed to the Ba’th Party’s secular rule and has been seeking since the 1970s to overthrow it].  When he had questioned Iman about this later, she had told him that she had told her father that he had tried to rape her.

   In view of all of this, there had been no option for the applicant but to flee Iraq.

   The applicant did not pursue his claim for refugee status because of his shia Muslim faith.”

   FINDINGS OF THE TRIBUNAL

7. The Tribunal just did not believe the applicant.  It was prepared to accept that Iman might have desired the applicant but said:

   “I find it implausible that she and her father would have acted against him as claimed.  It is implausible that Iman, who had apparently known the applicant over many years and had for long been keen on him, would have waited until he was contracted to another woman before ordering him to marry her.  I am not satisfied that Iman would not have known of the applicant’s five year affair with another woman since Iman had been a neighbour and frequent visitor to the applicant’s home and a friend of his sister, and through the powerful lens of her passion for the applicant would have kept herself well informed of his activities.”

8. The Tribunal also considered it implausible that the applicant’s family and Rana’s family would not have heard of their affair (as the applicant had stated in his evidence) bearing in mind that it had continued unabated over a period of five years.  As the Tribunal noted, in conservative societies, of which that in Iraq is one, young women such as Rana are closely watched.

   REVIEW BY THE FEDERAL COURT

9. 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

10. The issue of credibility was for the Tribunal alone to determine 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 finding 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 word ‘implausible’.  The disbelief arose from the tribunal’s view that it was inherently unlikely that events have occurred as alleged.”

11. The remarks of his Honour are particularly pertinent to the facts of this case.  As counsel for the respondent Minister submitted, the application for review contained no grounds which would give rise to relief under the former or the current statutory regime.  The application must be dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Loughlin.

Associate:
Dated:            17 June 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:	17 June 2002