SZBEL v Minister for Immigration
[2005] FMCA 146
•23 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBEL v MINISTER FOR IMMIGRATION | [2005] FMCA 146 |
| MIGRATION – Review of RRT decision – where applicant claims to have a well founded fear of persecution for convention reason of religion – where applicant jumped ship after he realised he was suspected of being an apostate – where applicant claimed he was placed under watch by the ship’s Captain and that upon return to Iran he would have been handed over to authorities – where Tribunal did not accept that the applicant was a credible witness – where the applicant’s claims were found to be implausible by the Tribunal – where country information referred to by the Tribunal in its decision suggested that the applicant’s version of events may have been possible – whether in rejecting the applicant’s claims as implausible and not expressly referring to the country information the Tribunal fell into jurisdictional error – whether the applicant was denied natural justice as a result of the Tribunal failing to put to him. |
Migration Act 1958(Cth), s.91R
Thevendram v The Minister [2000] FCA 1910
W148/00A v The Minister [2001] FCA 679
NAAP v The Minister [2002] FCA 805
The Minister v W64/01A [2003] FCAFC 12
Hossein Avesta v The Minister [2002] FCAFC 121
Re MIMIA; Ex parte Applicant S20/2002 [2003] HCA 30
NADH of 2001 v The Minister [2004] FCAFC 328
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212;
The Minister v Rajamanikkam (2002) 190 ALR 402
Appellant P119/2002 v The Minister [2003] FCAFC 230
VAAW v The Minister [2003] FCAFC 202
Abebe v Commonwealth (1999) 197 CLR 510
SZATG v The Minister [2004] FCA 1595
NAQS v The Minister [2003] FCA 1137
Applicant A103 of 2003 v The Minister [2004] FCA 584
Commissioner for ACT State Revenue v Alphaone (1994) 49 FCR 576
Ex parte Palme (2003) 201 ALR 327
Ex parte S154/2002 (2003) 201 ALR 437
NAAH v The Minister [2002] FCAFC 354
| Applicant: | SZBEL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1593 of 2003 |
| Delivered on: | 23 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 10 February 2005 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Rachel Francois |
| Solicitors for the Applicant: | Legal Aid Commission of NSW |
| Counsel for the Respondent: | Mr Stephen Lloyd |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1593 of 2003
| SZBEL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Iran. He arrived in Australia on 5 April 2001 when the ship upon which he was serving as a senior steward docked at Port Kembla. On 17 April 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 29 May 2001 a delegate of the Minister refused to grant a protection visa and on 5 June 2001 the applicant applied for review of that decision. The Tribunal heard oral evidence from the applicant and witnesses on 25 February 2003 and decided on 27 June 2003 to affirm the decision of the delegate. The Tribunal’s decision was handed down on 24 July 2003.
The applicant has worked for a number of Iranian shipping lines since 1989 as a general crew member. He is a Muslim by birth but claims in his statutory declaration found at [CB39] – [CB47] he was curious about Christianity and first went to a church service in 1996 in Dubai. Thereafter he continued his interest in that religion, discussing it with Christian crew members and attending churches in the ports where his vessels docked from time to time. He refers particularly to attendances at churches in Brazil and South Africa where he was provided with a bible and videos. He stated that the books were in Persian. In December 2000 he attended a service in the city of Bayer Balanca in Argentina but was seen by crew members coming out of the church. He was very worried about their reaction and told them he had gone out of curiosity. When he returned to the ship he was questioned by two senior officers who were concerned that he was an apostate and wanted to be sure that he remained loyal to the Iranian authorities. He assured the officers that he was and that he would not repeat his mistake again. On that occasion he was let off with a warning that he would be dismissed if he displayed any further interest in Christianity.
The applicant stated that in February 2001 he was on shore leave recovering from a stomach complaint and that he met four of his old friends in his home town. He told them the story of his growing interest in Christianity and his visiting of churches but became disturbed when they did not appear to share his enthusiasm, rather indicating that he was falling into heresy. He stated that a few days after this incident he received a telephone call from someone accusing him of being an apostate. These calls continued until he returned to the ship on 9 March 2001. On his final journey he determined that he would keep very quiet about his interest in Christianity, but shortly after the vessel had left dock he was called into the captain’s office and questioned. He was told that rumours were abounding that he had been ostracised in his home town by reason of expressing Christian beliefs. The applicant denied that he was a Christian but felt that the Captain did not believe him.
The Captain told the applicant that he would be watched very carefully throughout the voyage and that when the ship returned to Iran he would be dealt with. The applicant claims that when he heard this he was petrified. He felt that with an adverse report from the Captain and the intolerance of people in his home town he would be detained and would face persecution on his return to Iran. He stated that people on board his ship became suspicious of him and he feared for his life. By the time that the ship anchored in Wollongong on 3 April 2001 the applicant had become sick again. He obtained permission to go and see a shore doctor. In his first statement he does not mention that he was taken to that doctor by another crew member but he later gave that evidence to the Tribunal in response to the finding of the delegate that his decision to return to the ship on 6 April was not consistent with the actions of a person who feared being seriously mistreated or even killed by the crew. He stated that thereafter he made arrangements with a friend to allow him to slip off the boat the next night. He claimed that he was in fear of his life on the boat. Part of the evidence produced by the applicant indicated that the crew member who he alleged helped him to escape was later disciplined.
At the time the application was considered by the delegate the applicant had not been baptised a Christian and the delegate came to the view that he was not an apostate and therefore did not risk being persecuted for religious reasons if he returned to Iran. The delegate also noted his concern as to the applicant’s credibility in respect of his evidence of being spoken to by Christians in Brazil, South Africa and Argentina being countries where Persian was generally not spoken. The delegate did not think that it was likely that the applicant could communicate with Christians in these countries given the obvious language barrier.
Between the time of the delegate’s decision and the time the applicant obtained review from the Refugee Review Tribunal he had become baptised and in a statutory declaration found at [CB 98] – [CB 100] explained that he is a member of two congregations, the Christian City Congregation and the Day Spring Christian Fellowship which he attends regularly. He has undergone bible studies. In that statutory declaration the applicant also responds to the concerns as to his credibility felt by the delegate and discussed above at [5]
The Tribunal heard the evidence of the applicant ands also witnesses concerning the genuineness of his conversion. The Tribunal noted a DFAT country profile on Iran dated March 1996 which included the following at [CB 130]:
1.7.10.2 There is no specific legal penalty under Iranian Law for Iranians who desert ships in foreign ports. Legal advice available indicates that a returnee would not face criminal liability for the sole offence of ship-jumping. If however the applicant had jumped ship in order to evade either criminal or civil proceedings, the applicant may face prosecution for evading justice. In addition, they could face fines and a light prison sentence for breach of employment contract.
1.7.10.3 Iranian government merchant marine shipping lines have “politico-ideological bureaus”, whose activities extend to individual ships. There are security personnel on each ship, who would note and police “un-Islamic” behaviour and any activities perceived to be subversive and a threat to the ship. However, it is highly unlikely that any serious action would be taken against personnel merely on account of critical comments/statements of the Government or the regime. General grumbling about the country, the leadership and the state of the economy are popular past times in Iran and do not in themselves usually attract any penalty or punitive action. However direct and continuous provocative criticism of Ayatollah Khomeini or strident advocacy of the overthrow of the regime would not be well-received by the security/ideology commissars on board, who would bring pressure to bear on the offending party to desist.
1.7.10.4 Anyone working on shipboard would have been well vetted and cleared by the security authorities in advance and by definition would not have had any sort of adverse political profile. But, if a seaman were to manage to establish himself on shipboard such an adverse political profile, through persistent statements, declarations, and subversive activities, as would be considered by a potential political or security threat, he would inevitably be arrested and confined on board pending return to Iran. It would be very difficult for anyone to jump ship while in detention. An individual not so detained would by definition be deemed not to be a serious political or security threat and on return to Iran, at most would suffer a bout of questioning, possibly a short period in detention or a fine, and more that likely, nothing beyond dismissal or confinement to shore duties. A person taken into detention onboard would face, on return to Iran, more intense interrogation, a longer period of detention and almost certain dismissal. While there is no Soviet-style cadre system in operation on board, there are informal networks and cooperation among security personnel and active supporters of the government, who would take a lead in public prayers and various activities associated with good Islamic revolutionary practice.”
The Tribunal’s findings and reasons are short. They are found between [CB 132] and [CB 135]. At [CB 134] the Tribunal indicated that it was unable to be satisfied that the applicant had engaged in the conduct of conversion and Christian activity otherwise than for the purpose of strengthening his claim to be a refugee. It based this finding on what it considered to be the applicant’s lack of credibility in respect of the circumstances which lead him to jump ship. It therefore disregarded this conduct under s.91R(3) Migration Act.
In regard to the main claim that the applicant jumped ship because he faced harm from the authorities of Iran because his claimed interest and involvement in Christianity the Tribunal states:
“The Tribunal does not accept this claim because the Tribunal considers that this claim is not credible. … The Tribunal considers the applicant’s account of the basis upon which the Captain came to believe that the applicant was involved in Christianity to be so tenuous as to be implausible. The applicant makes no claims as to having been accused of any Christian activities while on board ship such as reading the bible but states (as set out at Folio 51 of the Department file) “I kept to myself and hadn’t said a word about Christianity.” Rather the applicant claims that while visiting his home town he met up with some friends and spoke to them with enthusiasm about Christianity. The applicant claims that on the strength of this personal conversation among his friends when at home for ten days his interest in Christianity became public knowledge such that a fellow crew member on the ship knew of the applicant’s Christian leanings and informed the Captain.
The Tribunal considers it implausible that a personal conversation while the Applicant is in port for ten days would attract the attention or interest of the Hezbollah and would become public knowledge such that a crew member from the same town would have knowledge of it.
Further the Tribunal considers it implausible that the Captain of the ship would accuse the Applicant of apostasy or even involvement in Christianity on the strength of comments from a crew member based on the Applicant’s personal conversations when in port, particularly given that the applicant on his own evidence had not spoken of or engaged in Christian activities on board the ship.
The Tribunal considers that the applicant’s freedom of movement when the ship was in dock belies the Applicant’s claim that the crew “considered me a criminal” (Folio 50 Department file) and the claim as stated in the hearing that the Captain was intending to hand him over to the authorities when the ship returned to Iran.
The applicant proceeded before the Court on the basis of a Further Amended Application filed at the hearing. This Further Amended Application contained three grounds for review with which I will deal in turn.
Ground One
Ground one of the amended application is as follows:
The Refugee Review Tribunal fell into jurisdictional error in so far as it made findings that were not open on the evidence before the Tribunal.
Particulars
The Refugee Review Tribunal made findings, inter alia, that it was implausible that if, as the applicant claimed, the Captain was intending to hand him over to the authorities upon return to Iran:
(a)the applicant would have had the freedom of movement he described on board the ship while it was docked in Australia; and
(b)the Captain of the ship did not impose more stringent measures on the applicant while the ship was in dock.
It was not open to the Refugee Review Tribunal to make these findings as the DFAT Country Profile Islamic Republic of Iran (dated March 1996) obtained by the Refugee Review Tribunal stated that there were two ways in which crew members who established adverse profile whilst on board ship might be dealt with:
(1)a person deemed a “serious political or security threat” would be arrested and confined on board ship pending return to Iran; or
(2)a person not considered a “serious political or security threat” but who had nonetheless drawn adverse attention would not be so confined but could on return to Iran be handed over to be questioned and then possibly dismissed, fined or detained.
In her submissions counsel for the applicant noted the concern findings of implausibility had generated in the Federal Court in cases such as Thevendram v The Minister [2000] FCA 1910 at [26] – [27] and [59]; W148/00A v The Minister [2001] FCA 679; 185 ALR 703 [39]- [41] and [67]-[69]; NAAP v The Minister [2002] FCA 805 at [40], but accepted that the method of reviewing findings based on implausibility suggested by those cases had been rejected by the Full Court in The Minister v W64/01A [2003] FCAFC 12. She argues, however, that if a finding of implausibility is perverse in that it is not open to the decision maker then such a finding is open to review: Hossein Avesta v The Minister [2002] FCAFC 121 at [15]. Counsel explained that by perverse she believed that the Court meant unreasonable in the Wednesbury sense. Reference was also made to Re MIMIA; Ex parte Applicant S20/2002 [2003] HCA 30 at [35].
In this case the Tribunal was making a general finding upon the applicant’s credibility on his alleged commitment to Christianity. Without that commitment he would have had no fear (he did not suggest that the commitment was wrongfully imputed to him). In coming to the negative conclusion the Tribunal does a number of things. Firstly it puts itself in the position of a member of the general public in the same town as the applicant. The applicant argues that the Tribunal cannot do that. He argues that the Tribunal constituted by a stalwart member of an occidental community cannot possibly have any knowledge or intuition of the ways of working of an oriental community such as the one that is being described. I have some sympathy with this argument. One does see from time to time decisions of Tribunals that are made on the basis of applying occidental mores to oriental factual situations. I can see how this might well lead a Tribunal into error. But the error that it was led into would not be an error in the exercise of jurisdiction. It would rather be an error made within its jurisdiction of assessing the degree of satisfaction it may have as to the applicant’s claims to have a well-founded fear of persecution for a Convention reason. The remarks which I have made above refer to the first two of the quoted paragraphs in [9]. It is against the remarks made in the second two paragraphs that the applicant’s strongest challenge is made.
The applicant argues in respect of these two paragraphs that it is simply not open to the Tribunal to come to a conclusion that his claims were implausible when the only evidence which the Tribunal had was that of the applicant himself who said that that is what happened and the independent country information that I have quoted at [7] which appears to indicate that a sailor who a Captain intended to hand over to the authorities for questioning at the end of a voyage could remain at his duties pending that hand over. In that extract there was no suggestion that a sailor in that position would be placed under extra guard during times when the vessel was in port. It is not clear from the decision of the Tribunal what the more stringent measures are that the Master may have taken. The applicant’s own evidence was that there was a guard on the ship to prevent persons from “jumping” but that he managed to bribe this person. The Tribunal has not suggested that it disbelieved the applicant’s statement that he was accompanied to the doctor by another member of the crew.
Support for the applicant’s perversity argument is put at its highest in Avesta where the full bench at [15] said:
“Whether a particular matter is inherently improbable can in certain circumstances be obvious, in other circumstances debatable, and, perhaps, in other circumstances just conceivable, but unless a conclusion that a particular matter is inherently improbable is perverse, that is to say is not open to the decision maker, it is not a matter on which the Court should substitute its view.”
But this expression has to be read in the light of the views expressed at [19]:
“The second of the substituted grounds of appeal depends on this Court being satisfied that the matters which the Tribunal claimed were implausible were clearly not so. The appellant’s evidence and claims which the Tribunal regarded as implausible were the subject of detailed consideration by the Tribunal before it reached that conclusion. That conclusion, we have earlier said, was open to the Tribunal, but it is simply not correct that that material was ignored with the consequence that jurisdictional error was committed. Even if the conclusion by the Tribunal that a particular claim was implausible is regarded as incorrect or as the consequence of illogical reasoning, that does not involve jurisdictional error or give rise to any ground of review based on the former s476(1) of the Act. See Minister for Immigration and Multicultural Affairs v Epeabaka (1998) 84 FCR 411 at 421 and Minister for Immigration and Multicultural Affairs v Perera [2001] FCA 1212 at para22 - para26.
It would seem that this Full Bench was satisfied that the conclusions reached by the tribunal were not implausible and that therefore the views expressed by them at [15] could be said to be obiter. The Full Bench did not clarify the ways in which a conclusion which was not open to the decision maker might result in a jurisdictional error but clearly they were of the view that illogical reasoning would not give rise to any such assumption. In NADH of 2001 v The Minister [2004] FCAFC 328 Allsop J at [136] suggests that the views of the Chief Justice in Applicant S20 relating to the obligation of the Tribunal to act judicially would not include the assertion of conclusions in a way that might be seen as not to engage a reasoning process but to have been asserted by a process that is no more than intuitive arbitrary or capricious. However, his Honour did not say whether those faults could lead to a jurisdictional error and his discussion was purely obiter. It seems to me that at the present time the weight of authority would protect the Tribunal in respect to a decision on credit, where, as here, a series of reasons are provided for the conclusion and it cannot be seen from the face of the decision that any one of those reasons carried more weight than another: see Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212; The Minister v Rajamanikkam (2002) 190 ALR 402; Appellant P119/2002 v The Minister [2003] FCAFC 230; VAAW v The Minister [2003] FCAFC 202.
I am also of the view that the approach taken by the applicant is in conflict with the rights of an arbiter of fact not to accept evidence. Perhaps because independent country information obtained by the Tribunal is so frequently used to rebut evidence or assertions of an applicant it has obtained the appearance of the respondent’s evidence. Of course it is not this at all. The Tribunal is an inquisitorial process. There is no contradictor: Abebe v Commonwealth (1999) 197 CLR 510; SZATG v The Minister [2004] FCA 1595 and evidence produced by DFAT or any other organisations whose reports are called upon to inform the Tribunal can be rejected by the Tribunal as easily as it can reject the evidence produced by an applicant. This acceptance or rejection of evidence is part of the Tribunal’s fact finding task which the Full Bench in W64/01A made clear was not a task open to assessment by a court undertaking judicial review. As Hill J noted in NAQS v The Minister [2003] FCA 1137 at [39]:
“While it can be said that failure on the part of the Tribunal to take any account at all of relevant material might constitute jurisdictional error, one has to be careful to distinguish that from matters of fact finding. It is open to the Tribunal to accept or reject evidence before it. It is neither bound to give reasons for its rejection nor indeed to refer to the material it rejects.”
It could also be argued that it is not even necessary for the court to be satisfied that the Tribunal actually rejected the evidence in the DFAT report. The wording used by the Tribunal is open to the interpretation that it considered the possibility that the applicant’s conduct would have placed him in the category of persons who would be allowed to work out the voyage but concluded that on the applicant’s own evidence the transgressions of which he stood accused were so serious that if those accusations had in reality been made he would have been detained. In Applicant A103 of 2003 v The Minister [2004] FCA 584 Mansfield J said at [23]:
“In addition, I do not accept that there was no evidence upon which the Tribunal could have expressed that view. It was not obliged to accept every factual claim the applicant made unless there were direct contradictory evidence. It was required to form a view about what the applicant had experienced in the past. It was entitled to form that view, having regard to how the applicant presented when giving evidence and in the context of the view it took about his overall reliability as a witness. It did so. In my view, it was clearly entitled not to accept his claims about being unable to conduct a business or businesses in the circumstances. Its approach to the assessment of his evidence on that matter does not demonstrate jurisdictional error on its part.”
For all these reasons I am unable to say that the Tribunal fell into jurisdictional error by making findings that were not open to it on the evidence.
Ground Two
Ground two of the Amended Application states:
The Refugee Review Tribunal denied the applicant natural justice in so far as it failed to put to the applicant the critical factors upon which its decision was likely to turn.
Particulars
The Refugee Review Tribunal did not inform the applicant that:
(a)it believed it was not possible for a personal conversation between friends in a small town to become known within 10 days to the Hezbellah or other town members;
(b)it believed an Iranian ship captain would not act on the word of another crew member about that personal conversation and accuse the applicant of apostasy; and
(c)it believed an Iranian ship captain would take more stringent measures with respect to the applicant if he intended to hand the applicant over to the authorities for questioning than those claimed by the applicant.
I am satisfied that the applicant has in these grounds done no more than articulate the Tribunal’s reasoning processes by which it came to the conclusion that it did about the applicant’s credit. Reasoning processes are not required to be revealed to an applicant: Commissioner for ACT State Revenue v Alphaone (1994) 49 FCR 576; Ex parte Palme (2003) 201 ALR 327; Ex parte S154/2002 (2003) 201 ALR 437.
Ground Three
Ground three of the amended application is as follows:
The Refugee Review Tribunal fell into jurisdictional error in so far as it failed to have regard to relevant evidence.
Particulars
(a)the DFAT Country Information Profile Islamic Republic of Iran (dated March 1996) cited above;
(b)the applicant’s evidence that he was under a form of guard and was escorted to his medical appointment;
(c)the applicant’s evidence that the person who assisted him to escape was persecuted upon return to Iran;
(d)the evidence of three independent witnesses as to the genuineness of the applicant’s beliefs and previous knowledge of the Christian faith.
It will be clear from what I have said earlier in this judgment that I can not be satisfied that the Tribunal did not take into account the DFAT country profile. I am of the view that a reading of the decision in full indicates that the profile was considered and the fact that some seamen in some circumstances might be allowed to work out the balance of the voyage was not considered to be relevant in this particular case. The applicant’s evidence that he was under a form of guard when he went to his medical appointment in Wollongong seems to me also to have been considered. The Tribunal does not repeat the finding of the delegate that the applicant’s failure to remain on land at the time of the medical appointment indicated that he did not have a genuine fear. The Tribunal may have chosen to reject this evidence as evidence of the truth of the applicant’s assertion that he had a genuine fear and that rejection of evidence cannot be interfered with by the court. The fact that the person who assisted the applicant to escape was prosecuted upon return to Iran is to my mind of no relevance. It is likely that any person who assisted a ship jumper to escape would be prosecuted at the end of the voyage. Ship jumping is an offence under maritime law throughout the world.
Finally I am not satisfied that the Tribunal did not have regard to the views of the three independent witnesses concerning the applicant’s faith. The wording of s.91R(3) makes clear the responsibility placed upon an applicant in terms of the requirement to satisfy the Minister. It is for the Tribunal to decide whether or not the state of satisfaction has been reached. In a court dealing with review rather than an appeal it is not for the judicial officer to state what he or she might have done with the same evidence: NAAH v The Minister [2002] FCAFC 354 at [27].
In light of these findings I am unable to grant review of this decision to the applicant. I dismiss the application. I order that the applicant pay the respondent’s costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 23 February 2005
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