SZCXF v Minister for Immigration
[2007] FMCA 1229
•31 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCXF v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1229 |
| MIGRATION – Review of Refugee Review Tribunal decision – whether the Tribunal failed to consider applicant’s claim – where no evidence of applicant’s claim other than applicant’s assertion – whether the Tribunal had made a finding of fact in the absence of evidence – where delegate found applicant had fabricated claims – whether the Tribunal informed the applicant of issues arising on review that had not been disclosed by delegate. |
| Migration Act 1958, ss.424A, 425(1) |
| Minister for Immigration v SGLB [2004] HCA 32 SFGB v Minister (2003) 77 ALD 402 Sellamuthu v Minister for Immigration (1999) 90 FCR 287 VWAL v Minister for Immigration [2006] FCA 266 SZBEL v Minister for Immigration [2006] HCA 63 Abebe v Commonwealth (1999) 162 ALR 1 |
| Applicant: | SZCXF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3071 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 25 July 2007 |
| Date of last submission: | 25 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondent: | Mr S Lloyd |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,000.00.
The name of the First Respondent be amended to Minister for Immigration & Citizenship.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3071 of 2006
| SZCXF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant is an Iranian citizen who first arrived in Australia in November 1998. Shortly after his arrival on a business trip he met and married a woman, ZP, an Australian citizen of Iranian background. She sponsored him for a Subclass 820 visa. The marriage foundered after the applicant allegedly found his wife in flagrante with a former lover in their home. He also discovered that, unbeknownst to him, she had been married three times previously. He left the matrimonial home, not taking anything with him other than his passport, credit card, money and mobile phone that were on him. The applicant returned to Iran where he took up again his business activities travelling to a number of countries including Sweden. Whilst in Iran he had the experiences which are the subject matter of his claim to be a person to whom Australia has protection obligations. On 13 August 2001 he returned to Australia and made an application for a protection (class XA) visa on 21 September 2001. The application was refused by the delegate of the Minister and the Tribunal, differently constituted, affirmed the delegate’s decision on 27 January 2004. The applicant sought review of the Tribunal’s decision. On 15 May 2006 the Federal Magistrates Court set aside the decision and remitted the matter to the Tribunal to be determined according to law. The Tribunal held hearings with the applicant, who was represented by his legal adviser/migration agent. On 12 September 2006 the Tribunal determined to affirm the decision under review and handed that decision down on 5 October 2006.
The applicant says that his divorce from ZP was handled appropriately and that she was given a small sum of money which he understood was accepted as satisfactory. However, upon his return to Iran he was approached by her brothers, who indicated that the family was not happy with the arrangement and demanded further payment from him. When that was refused he was hit and they warned him that this was just the beginning (see [CB 531– 532]):
“One afternoon as he was returning home from work he was stopped on the street near his home. Two men who identified themselves as being from the disciplinary forces demanded that he follow them to the local disciplinary forces’ centre. Zahra’s brothers had told the disciplinary forces that he was a political dissident and a proselytizer. She also wrote to the Iranian Embassy in Canberra and the disciplinary forces in Tehran saying that he had been involved in evangelical Christian practice in Australia. He did have some contact with Christians while in Australia. Whilst he was married to ZP he attended a few church services with his friends. However he was not a Christian and still followed the Muslim faith. He knew that the accusations were serious. While detained he was interrogated about his business trips. He was asked about his link with some anti-Islamic groups. His denials were not believed. He was hit and called a deviant. He was told he should be careful and would be monitored. He was warned he would be severely punished if he stepped out of line … He was disturbed and disorientated and it became almost impossible to sleep.”
The applicant maintained that although he was not arrested again until 2001 he was kept under constant surveillance, particularly in the light of his business trips. These trips were taken at the behest of a Bonyad (a powerful Iranian charitable and business organisation), one of whose employees he had paid off in order to obtain business from it. After the applicant returned from a business trip to Sweden in February 2001 he was arrested again. He claimed that he was beaten up during the course of his interrogation and was released because of the injuries that he suffered. The applicant stated that during his interrogation he saw a letter that had been written to the authorities in the handwriting of ZP. He also claimed that he was being interrogated about certain photographs that had been taken by and of him in and around churches in Italy and Australia. He claimed that these had been provided to the authorities by his ex-wife. He claimed that those photographs were used to corroborate the statements made by his ex-wife and his brothers that he was a proselytizer. The applicant claimed during the hearing before the second Tribunal that there was in fact a third occasion upon which he had been arrested. On this occasion he was not asked about religious or political matters, but had been told to write his life story so that the authorities could check up on people with whom he had been connected.
The Tribunal’s findings and reasons commence at [CB 552]. The Tribunal accepted that the applicant was the person involved in business activities and that he had often travelled abroad in relation to them. It accepted that the applicant had been involved in corrupt activity with the employee of the Bonyad which might lead him to face penalties if it was discovered. The Tribunal accepted that the applicant had been questioned by authorities after returning to Iran in 1999 and that he was briefly questioned again and possibly ill-treated in 2001:
“It is possible that after this he faced charges, that the deeds to his home were held as security and that he was denied access to his bank accounts.
As I have noted, he has claimed that he faces persecution in Iran set out in the Convention, being religion and political opinion. As to whether I am satisfied that these are the reasons he had these problems, and that they are the essential and significant reasons for any harm he may face, I have considered the following:
He claims that the source of the allegations about him is his first wife in Australia, a woman of Iranian background from whom he is divorced. In my view there are a number of reasons why, without more compelling evidence against him, it is highly unlikely that the Iranian authorities would have treated assertions made by [the applicant’s] ex-wife or her relatives as reliable.
The first is that Iran’s laws favour men. Among other examples of discrimination is evidenced [sic] that a woman’s testimony in court is worth half that of a man (2005, Iran: Human rights annual report 2005, U.K. Foreign and Commonwealth Office, July CX147293). Further [the applicant] told the first Tribunal that he separated from his wife because he discovered her in an act of adultery. I note evidence that in Iran the law allows a man to kill his wife under precisely these circumstances (DFAT 1996), evidence which reflects a very harsh view taken of women’s rights over those of men. For these reasons alone it seems extraordinary that, if he believed his –ex-wife to be the source of allegations against him, he would not have emphasised to his interrogators her ‘poor character’ as an obvious means of undermining her allegations. It is unclear, given that the evidence indicates that she would almost certainly have been regarded by those interrogators as a woman of poor character, why he did not expect to be believed.
However a second reason why the Iranian authorities would likely favour his denials over her assertions relates to his ex-wife’s history. [The applicant] has submitted evidence to the Tribunal that her previous husband was also the victim of unfounded allegations made by her to the Iranian authorities, and indeed that that man visited the Iranian Embassy in Canberra in order to clear his own name. [The applicant] does not claim to have brought this to the attention of his interrogators at any stage, despite (as he told the first Tribunal) having a copy of his ex-wife’s first husband’s letter, which contained the allegations, in his possession before he returned to Iran. In other words, he has failed to take an obvious opportunity to undermine her credibility.
Thirdly, although later in the hearing before the present Tribunal he claimed that his family had ‘always’ had problems because of his brother’s link with the previous regime, he initially gave clear evidence, which I accept, that he himself had no interest in politics and, most relevantly, had not had any problems of a political nature with the Iranian authorities before 2001. As the former claim was made belatedly and without any detail, I am satisfied that the latter is accurate and that [the applicant] had an entirely clean and respectable political record until the problems he claims arose from his ex-wife’s allegations.
Taking all these factors into account, the fact that [the applicant] did not take the obvious steps to undermine his ex-wife’s credibility casts doubt on his claim that she made allegations against him. It is highly implausible that the authorities might have taken allegations made about [the applicant’s] activities abroad seriously.
[The applicant] has claimed that the reason the allegations about his converting Muslims to Christianity was given credence was that his ex-wife provided the authorities with photographs of him which linked him with Christianity. If credible evidence had been provided to them that he was involved in proselytising activities, or had converted to Christianity, I am satisfied that that might be sufficient to give his ex-wife’s allegations greater credibility than the otherwise would have been given. However for several reasons I consider the whole claim on this issue implausible. [The applicant] has not explained how he could have known which particular photographs she might have provided. It is also difficult to believe that he would not have found a way of retrieving his belongings, including photographs, from their shared home after their separation. In any case, I am not satisfied that photographs of Christian churches, whether he was in them or not, would be regarded as of such significance to the Iranian authorities that, having been provided with them by an ex-spouse with a history of making unfounded allegations, they would give credence to them. Apostates (converts from Islam) and evangelical Christians have been harassed and arrested in Iran (see 2005, Iran: Christians in Iran, Swiss Refugee Council, 18 October) – these are clearly individuals who would self-identify as Christian if questioned by the authorities. In contrast, [the applicant] gave evidence that he considers himself to be a Muslim and does not intend to convert to Christianity. I am satisfied that that is so, and that it is what he would have told the authorities if he had been questioned about religious matters. He also gave evidence that there are Christian churches in Iran, and I am satisfied that that is so and that Christians are one of the recognised minorities in Iran. They are not persecuted as a group. On the basis of his evidence I am satisfied that nothing about the photographs he described would have indicated to the Iranian authorities that he was an apostate or an evangelical Christian. Therefore his explanation as to why those authorities took his ex-wife’s allegations seriously is highly unconvincing.”
For the reasons set out above and for the other reasons contained in the Tribunal’s decision, the Tribunal concluded at [CB 555]:
“His willingness to re-enter Iran on four occasions is so inconsistent with the fear he initially claimed to have that, while he may have been questioned about some other matter, I do not believe that he considered himself to be of any adverse interest to the Iranian authorities for political or religious reasons before his return to Iran from Sweden in February 2001.”
The applicant proceeded on a further amended application:
“Grounds of the application
1. The Tribunal failed to consider the case advanced by the Applicant, and so failed to complete its statutory obligations;
Particulars
(a) The Tribunal failed to consider the Applicant’s claim that his ex-wife’s
brothers informed upon him to the disciplinary forces in Iran.(b) Rather, the Tribunal considered that the Applicant’s ex-wife had informed on him, and that it was merely assertions which needed to be undermined.
2. The Tribunal made findings in the complete absence of evidence
Particulars
(a) The Tribunal found, at least implicitly and entirely without evidence, that unreliability of the accusations made by the ex-wife would infect those of her male relatives, so that the accusations made by these relatives was unlikely to be believed.
(b) The Tribunal found, at least implicitly and entirely without evidence, that the disciplinary forces in Iran would recognise and comply with the rule of evidence in that country to the effect that a woman’s evidence is worth half that of a man, with the result that the applicant, rather than his ex-wife, would be believed.
3. The Tribunal breached s.425(1) Migration Act by failing to inform the applicant that the following issues arose in relation to its review
Particulars
(a) That he had not explained how he could have known that his ex-wife gave photos to the Iranians, or which photographs had been provided.
(b) That the veracity of the claim that he did not retrieve his belongings from the marital home was an issue that arose on the review.”
The applicant deals with particular 1(a) at [20] of his written submissions:
“In making the finding that it did the Tribunal was either failing to consider the applicant’s claim that the brothers were amongst his accusers (and if so that is a failure to complete the exercise of jurisdiction (Sellamuthu v Minister for Immigration (1999) 90 FCR 287; Htun v Minister for Immigration (1991) 194 ALR 244), or it was drawing the following implied findings of fact:
(a) That the unreliability of the accusations made by the ex-wife would infect those of her male relatives, so the accusations made by these relatives was unlikely to be believed.
(b) That the disciplinary forces in Iran would recognise and comply with the rule of evidence in the Courts of that country to the effect that a woman’s evidence is worth half that of a man, with the result that the applicant, rather than his ex-wife, would be believed.”
Insofar as the implied findings are concerned, the applicant argues that there was no evidence to support them and thus that the Tribunal fell into the jurisdictional error of making findings of fact in the absence of evidence: Minister for Immigration v SGLB [2004] HCA 32; SFGB v Minister (2003) 77 ALD 402.
In Sellamuthu v Minister for Immigration (1999) 90 FCR 287, Wilcox and Madgwick JJ stated:
“all of the substantial claims, and information in support of them, put forward by an applicant must be considered.”
In Sellamuthu, the Tribunal had affirmed the decision of the delegate not to grant a protection visa partly on the basis that “it did not accept that all Tamils in Sri Lanka have a well-founded fear of being persecuted merely by reason of their race.” (at [15]).
At [49], Hill J considered:
“[49] The Appellant’s solicitor rejected before us the suggestion that he had abandoned the submission that the Appellant had a well-founded fear of persecution based on ethnicity as a Tamil. Accepting that this was the case it clearly follows that the Tribunal has simply not addressed itself to the issue which was posed to it. It is no answer to this proposition to say that the Tribunal did not accept the evidence of the appellant so far as that evidence related to events which the Appellant deposed had taken place in Sri Lanka and which involved him and his family. The Tribunal accepted expressly that the appellant was a Tamil male. But, it made no finding of the existence or lack of subjective fear of persecution by reason of his ethnicity. Nor did it make any finding by reference to background materials before it, or to other materials to which the appellant’s submissions referred, which were presumably available to it, as to whether such a fear would be well-founded.” [emphasis added]
However, this was strictly limited to the facts of the case. At [24] Wilcox and Madgwick JJ opined:
“[24] We should emphasise that our conclusions depend on the circumstances of this case. In many other cases the sole substantial basis for judging whether a person falls within the Convention criteria for a ‘refugee’ will be the information as to his/her supposed history and background furnished by an applicant. Upon legally proper rejection of the credibility of an applicant in such a case, there will be no basis for requiring that the RRT do more than forthwith reject the claim for refugee status.”
The Tribunal highlighted its reasons for concluding that “without more compelling evidence against him, it is highly unlikely that the Iranian authorities would have treated assertions made by the applicant’s ex wife or her relatives as reliable” (emphasis added). It does not appear that the Tribunal failed to consider that the applicant’s ex-wife’s relatives informed the authorities. The conclusion reached by the Tribunal followed several references to the involvement of the brothers. These can be found at the recitation of the claims and evidence at [CB 531]:
“ZP’s brothers had told the disciplinary forces that he was a political dissident and a proselytiser.”
At [CB 532]:
“He was summoned to the disciplinary agent’s centre for questioning and was accused of being involved with the student uprisings in Tehran. He realised afterwards that ZP’s brothers had told the authorities this.”
At [CB 537]:
“As to how he knew that this detention had anything to do with his former wife or her brothers he stated that on both occasions the person questioning him was seated across the desk from him with a file open on the desk. He stated that he could see a letter on this file that was in his wife’s handwriting.”
In regard to this reference to the interrogation the respondent argues that it is significant that the applicant advanced no evidence whatsoever as to the role of the brothers. There is again reference to the brothers at [CB 539]:
“[The applicant] claimed that he knew that his [now ex] wife had something to do with it because he recognised her handwriting on the file from which the questions he was being asked were being read out. As to if this meant that she had written these questions he stated that it was most probable that her brothers had made the accusations. He did not know what she wrote.”
And again at [CB 539]
“As to if he had told his interrogators that his ex-wife had written the letters on the file, he stated that he had a lot of pressure on him. He did not point out the letter, but he did mention ZP and her brothers.”
Finally, in the letter dated 3 August 2006 at [CB 388] written pursuant to s.424A Migration Act 1958 (“the Act”) the Tribunal writes:
“You gave the names to the delegate of your former wife’s brothers who assaulted you in February 2001, but told the Tribunal you had never known their names. The Tribunal could infer from this that your claims regarding your former wife’s brothers are generally implausible.”
There is also a reference to the brothers having provided the authorities with information that he was involved with student uprisings in Tehran in the applicant’s statutory declaration, found at [CB 207]. In these circumstances I am satisfied that the Tribunal was aware of and did take into consideration the applicant’s claims that his ex-wife’s brothers informed upon him and did not consider them to be reliable. As has been mentioned there is no evidence that the brothers provided information to the authorities, it is an assertion made by the applicant upon which he has provided no evidence other than their threat. The Tribunal analysed the allegation concerning the ex-wife informing upon the applicant and came to the conclusion that the suggestions lacked credibility, mostly because of the applicant’s own failure to stridently point out to his interrogators the moral character of his ex-wife. It seems to me reasonable for the Tribunal to have come to a conclusion that it could not be satisfied that the applicant had been informed upon in the manner suggested because of a combination of the applicant’s supinity in regard to his ex-wife and total lack of evidence (other than the threat) of the brothers’ actual involvement.
Having come to the views expressed above it is not necessary for me to consider the second ground put by the applicant that the Tribunal had made findings in the complete absence of evidence. But I would say that in regard to the first particular of that ground it is not necessarily the case that the only reason why the Tribunal disregarded the evidence of the brothers was the unreliability of the accusations made by the ex-wife. It could also have been because there was no evidence that the brothers had been involved and, to the extent that they might have been involved, the more particularised charge of proselytising would seem to have been based entirely on the evidence of the wife as to the husband’s activities outside Iran. What evidence could the brothers have given of this activity when they were not with the applicant, either in Australia or in Italy where the allegedly damning photographs were taken? In regard to the second particular asserted by the applicant that the disciplinary forces in Iran would recognise and comply with a particular rule of evidence, I do not think that this is the sole reason why the Tribunal came to the conclusion that the applicant’s evidence should not have been believed. It seems to me that an equally powerful argument would be that the wife was not a person of good character, whereas the applicant was.
In SFGB v Minister for Immigration [2003] FCAFC 231, Mansfield, Selway and Bennett JJ stated at [19]-[20]:
“[19] If the tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-7 …
[20] On the other hand, if there is sufficient evidence or other information before the tribunal on which it could reach the conclusion it did then it is for the tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a ‘jurisdictional fact’, there is no error of law, let alone a jurisdictional error, in the tribunal making a wrong finding of fact: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36-6.”
In VWAL v Minister for Immigration [2006] FCA 266 Ryan J referred to paragraph [19] above and stated:
“[24] … by that passage I take their Honours to mean that a positive finding, in the absence of any supporting evidence, of the existence of the fact which is a critical step in deciding the ultimate matter as to which the Tribunal has to be satisfied, may signify jurisdictional error.”
And at [21]:
“[21] In Minister for Immigration v Eshetu, Gleeson CJ and McHugh J, after identifying, at 627, the question being ‘whether the Tribunal was satisfied that Mr Eshetu’s fear of persecution was well-founded’, continued, at 629:
“ … The Tribunal concentrated its attention on Mr Eshetu’s explanation of his fears. Having rejected that explanation, it did not embark upon a search for some alternative explanation which he did not advance. Once again, different minds could form different views about the reasonableness of that approach. However, it involves no error of law. The ultimate question was whether the Tribunal was satisfied about something. The approach adopted by the Tribunal does not manifest a legally erroneous view as to what it was about which it needed to be satisfied. For the Tribunal to conclude that, although it was satisfied that Mr Eshetu feared persecution, an examination of the reasons he advanced as to why he held that fear failed to satisfy the Tribunal that the fear was well-founded, does not reflect any misunderstanding as to the meaning of the concept of a well-founded fear.”
[22] The passage makes it clear, I consider, that it is not a legal or jurisdictional error for the Tribunal, in evaluating the assertions of fact relied on by an applicant as giving rise to a well-founded fear of persecution, to reject one or more of those assertions as ‘unclear’, ‘incoherent’ or ‘implausible’. That is so even if there is no identifiable piece of evidence which tends against acceptance of the relevant assertion.”
The applicant asserts that the Tribunal made a finding that the evidence of the ex-wife would be unreliable and that as a result this would have ‘infected’ the accusations of her male relatives in Iran such that they too would be viewed as unreliable by the authorities. However, the Tribunal appears to have made the finding that it was unlikely that the authorities would have treated the assertions of the ex-wife or her relatives as unreliable on the following bases:
·Iranian law favours men (Country information) and it is unclear as to why the applicant did not emphasise to the interrogators that his ex-wife was the source of the allegations
·The applicant did not bring to the attention of his interrogators that his ex-wife’s previous husband was also the subject of such allegations.
The Tribunal’s reasoning was not based on a finding that there was a possibility that the unreliability of the ex-wife’s evidence (due to the fact that Iranian law is weighted towards men) would have meant that the authorities would find the evidence of her male relatives unreliable. It appears instead to have been based on the finding that, in part, given the information the Tribunal had before it that Iranian law favours men, it was unclear as to why the applicant did not disclose the source of the allegations to his interrogators. The Tribunal did not make this finding in the complete absence of evidence. It was open to the Tribunal on the evidence before it to come to this conclusion. It was also open to the Tribunal to find that Iranian law favoured men on the basis of the country information to which it had referred.
In relation to the third ground of review, the applicant alleges that the Tribunal did not inform the applicant of the following issues that had not been disclosed by the delegate’s decision that arose on review. These findings related to the allegations that his ex-wife provided the authorities of photographs that linked him with Christianity:
·That he had not explained how he could have known that his ex-wife provided photos of him standing near churches to the Iranian embassy: at [CB 554]; and
·It was difficult to believe that he did not retrieve his belongings, including the photographs, from the marital home: at [CB 554].
The decision of the delegate is at [CB 169] and does not specifically mention the photographs, nor the fact that the applicant did not retrieve his belongings from the marital home. But at [CB 175] the delegate would appear to be putting all matters in issue by making the following finding:
“His history of applications to come to, and stay in, Australia, are ones of fabricated claims. I believe that this application for Australia’s protection obligations is no different to his other applications.
Findings of fact
I find that [the applicant]’s claims that he would be persecuted in Iran for the allegation of being a political dissident and a Christian proselytizer have been conveniently extracted for the purposes of enhancing his refugee status. There is little substance to his claims, as there is no truthful reason for the Iranian authorities to follow through on these claims, and even given the poor human rights record of Iran, I find that he would not be persecuted if he returned to Iran.
I find that he would do anything to gain permanent residence in Australia and that his claims can not be trusted to have any material substance. I find that he did not ‘flee’ from Iran.”
SZBEL v Minister for Immigration [2006] HCA 63, upon which the applicant relies heavily, must be read conformably with the decision in Abebe v Commonwealth (1999) 162 ALR 1 at [187] and [188]:
“[187] The want of procedural fairness was said to lie in the Tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
[188] In this case the applicant knew that her claims about her detention and rape might not be accepted. The primary decision maker, the delegate of the Minister, said in the reasons for her decision that "... I do not find the applicant to be a reliable witness, and have grave doubts about her credibility, as in South Africa and at the Airport, the applicant did not mention that she had been raped or imprisoned in Ethiopia". After that, there could be no doubt that her story of detention and rape while in detention might not be accepted.”
Whilst I am quite satisfied that the Tribunal did raise with the applicant the question of his not retrieving his belongings and that it could be readily ascertained from the manner of the questioning that this was a matter in issue (see transcript at pp15-18), it does not appear that the Tribunal asked the applicant to explain how he could have known that his ex-wife gave the photos to the authorities. The question is whether it was necessary for it to have done this. The phraseology used by the Tribunal could be considered to be a mere observation. It is also to be remembered that the applicant never actually identified the particular photographs that he claimed the wife did send. He does not say in any of his statements that he was shown photographs and appears to be making an assumption that the investigators had photographs from the questions that they were asking him. But that information could equally have come from the ex-wife’s letter, a copy of which he claims to have seen but not read.
I am in no way satisfied that this case is similar to SZBEL. There are no grounds for holding that the applicant was entitled to assume that the existence of the photographs was not a matter in issue, particularly when the delegate had made such a firm finding about the applicant’s story. However, this is not the only difficulty which the applicant must face in regard to this submission. I cannot see that the statement made by the Tribunal was determinative of the issue relating to the photographs. The Tribunal went on to say that it was not satisfied that photographs of the Christian churches would be of significance to the authorities [CB 554] and it was satisfied that Christians were one of the recognised minority groups in Iran and found the applicant’s claims unconvincing on these bases also. In other words it did not seem to matter to the Tribunal whether the photographs had been produced or not. The Tribunal concluded that even if they had been produced they would not have caused the applicant to have problems with the authorities that would have resulted in him having a well-founded fear of persecution for the Convention reason of imputed religious activity.
In these circumstances I am unable to find that the Tribunal fell into jurisdictional error in the manner in which it came to its conclusions in this case. I dismiss the application and order that the applicant pay the Respondent’s costs which I assess in the sum of $5000.00.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 31 July 2007
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