SZECX v Minister for Immigration
[2004] FMCA 1055
•22 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZECX v MINISTER FOR IMMIGRATION | [2004] FMCA 1055 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of a decision affirming a decision by a delegate of the Minister not to grant a protection visa to the applicant – applicant a citizen of Iran – seaman by occupation – applicant claims a well-founded fear of persecution because of his support for a Muslim political party. |
| Applicant: | SZECX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2458 of 2004 |
| Delivered on: | 22 December 2004 |
| Delivered at: | Sydney |
| Hearing date: | 22 December 2004 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitors for the Applicant: | Mr Newman Newman & Associates |
| Counsel for the Respondent: | Ms Morgan |
| Solicitors for the Respondent: | Mr Sim Clayton Utz |
ORDERS
The Application is dismissed.
The applicant is to pay the respondent's costs fixed in the sum of $4,650.00.
The application is removed from the list of cases awaiting finalisation.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2458 of 2004
| SZECX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for a review of a decision of the Refugee Review Tribunal which was made on 1 June 2004 and handed down on the 28th of that month.
The applicant is a citizen of Iran. He is a seaman by occupation as was his brother before him. His brother has been granted refugee status in Australia and has now acquired Australian citizenship. He has another brother who lives in Norway and the other members of his family of orientation - his mother, his sister and his other brother - still live in Iran. He has lived in Teheran since 1979.
His father and the brother who now lives in Australia have been members of a political party which was legal for some period of time, but was largely illegal. The applicant said that his father had been arrested and was tortured with fatal results over 30 years ago.
The brother worked for a shipping company and the brother eventually jumped ship in Australia, obtained refugee status and has lived here ever since. The brother who lives in Iran was detained in Iran for a couple of days whilst investigations were taking place. The applicant was detained for a couple of weeks and interrogated when he returned from a voyage. He was released. He said that he was not given any work by the shipping company for a year, then he was only sent away on short voyages, which appeared to have an economic effect on him.
Certainly by August 2003 the applicant was able to travel on long sea voyages. He came to Australia at that time. He went to Sydney and saw a medical specialist. His brother, who lives in Australia, has a friend called Mr Azimee and the applicant says that he met the brother's friend and the friend asked him to take three copies of the book "The Satanic Verses" written by one Salman Rushdie back to Iran. The copies were in fact translated into Farsi, the official language of that country.
The applicant said that Mr Azimee said:
"The Satanic Verses" are banned in Iran.
If he felt that there was any risk he should destroy the books. And the applicant agreed to do so to return favours that had been given also because he said he was curious to read the book, but said that he planned to destroy the books if there was any danger.
What happened was that he put the books in a box in his cabin, stored them on a shelf. He had a cabin to himself because of his seniority as a seaman aboard the ship. He unfortunately sustained severe pain in the back the following day to such an extent that he had to be taken from the ship and taken to hospital in Wollongong where he remained for a couple of weeks. The ship left Australia and returned to Iran.
The applicant found out that his copies of "The Satanic Verses" which were in his cabin had been discovered and that he appeared to be in some sort of trouble. He elected not to return to Iran when he was released from hospital and chose to stay in Australia. He applied for a protection visa.
A delegate of the Minister refused his application. The applicant then sought a review of that decision by the Refugee Review Tribunal. On 19 February the Tribunal wrote to the applicant inviting him to attend a hearing of the Tribunal to take place on Monday, 29 March. The applicant attended and he was accompanied by his brother and by
Mr Azimee, who had allegedly given him the copies of "The Satanic Verses".
The applicant provided a medical certificate from a doctor, which said that he was only fit for modified work duties because of neck pain and he had had an operation in August 2003. He was asked a number of questions by the Tribunal member, who expressed her scepticism that the applicant would have risked having dangerous books in his possession for some months given that the authorities had previously searched the family home. The applicant told her that he did not feel any apprehension of danger, he was very experienced, he had completed many previous trips without risk. His concern was that he had been hospitalised and was not able to keep the books under his control. He expressed regret, saying he did not know how dangerous the books were, although he accepted that there was some danger in possessing them and he said he wished that he had never met
Mr Azimee.
The Tribunal member put to him that there was some evidence that people who possessed copies of "The Satanic Verses" were not punished, although publishers and distributors were. The applicant implies that there was a fatwa which could not be reversed.
The Tribunal member put evidence from the Department of Foreign Affairs and Trade to the applicant relating to people from Iran who deserted ships in foreign countries. He agreed that penalties for jumping ship were not serious. He said that jumping ship was not his problem, it was the books. The Tribunal member told the applicant that she had difficulty finding his account credible and that it was difficult to believe that he would have taken the risk of bringing the books back into Iran and his evidence also did not accord with that of Mr Azimee.
The applicant's case was supported by Mr Azimee, the alleged donor of the books, the person who had entrusted the books to the applicant to take back to Iran. Mr Azimee said that he was now an Australia citizen and the Tribunal member queried him as to whether he was just assisting the applicant or rather the applicant's brother who was his friend in finding a way of getting the applicant into the country.
Mr Azimee denied that.
The applicant's brother gave evidence. He said that Mr Azimee had given books in a box to the applicant. The Tribunal member asked him his views about the applicant, i.e., his brother, taking these books back to Iran and he said that he had not said anything about it. He said he did not realise there was any risk to his brother with these books until he was visiting the applicant in hospital and the applicant told him that the books had been found. The Tribunal member expressed her scepticism at the variation between the applicant's brother's evidence and the evidence of his brother.
After the hearing the applicant submitted a photocopied page in the Farsi language, which was an advertisement for a book store selling books by Iranian authors, including a translation of "The Satanic Verses". The Tribunal member considered other independent information to the extent that there was no official ban on "The Satanic Verses", but that people who published or distributed the book would find themselves in trouble.
In her findings and reasons the Tribunal member made it clear that she did not consider the applicant's claim to be a plausible one. She accepted that he was a seaman aboard a ship owned by the Iranian Government, that he had suffered a serious back injury and had been to see doctors in Australia about this and she did, however, express doubts as to the applicant's credibility.
She did not accept that he had taken copies of "The Satanic Verses" on board his ship and found that it followed that he would not face any harm in his native country because of the political opinion imputed to him because of his possession of the book. She found that the chance of his suffering any harm, therefore, was remote.
The Tribunal gave five reasons for rejecting the applicant's account. First was the internal inconsistency between the applicant's descriptions of the books and the description by Mr Azimee, initially in written statements and then in oral evidence.
Second, the Tribunal found there was no reliable documentary evidence that Mr Azimee had copies of "The Satanic Verses" to pass onto the applicant. The Tribunal did not consider that a photocopy of the notice in Farsi about the sale of the books in May 2003 was sufficient. The Tribunal member took the view that it would be reasonable to expect Mr Azimee at least to possess order forms, receipts or similar items relating to books as he had given oral evidence that he had been importing or selling many copies of "The Satanic Verses" since 2001.
The third reason was the Tribunal's scepticism at the applicant's claim that he had taken these books aboard the ship on the basis that the Tribunal inferred that the applicant would assess that the risks associated with doing so were very serious. He had conceded that there were security personnel on board the ship and the Tribunal found it difficult to believe that he would not have feared that a random search would reveal the books in his cabin.
The Tribunal member considered it implausible that a person in the position of the applicant would be willing to take the risk that he described for such slight reasons - a favour so that he could read the book himself - when she pointed out he could have read the book before he left from Australia or on other occasions when he had travelled from Iran to other countries.
The fourth reason was that whilst the Tribunal accepted that the applicant had a well-paid job which allowed him a comfortable life in Iran she drew an inference that in a letter from a specialist physician that there was a possibility that the reason the applicant chose not to return to Iran was that he did not expect to be physically fit enough to retain his employment and anticipated that his life might no longer be so comfortable because of the loss of income.
The fifth reason was that the applicant said the security personnel had visited his home and searched it, but the Tribunal felt that the reaction by the authorities described by the applicant was not consistent with the independent evidence that "The Satanic Verses" are not banned in Iran and being caught with a copy was not a serious matter.
For those reasons, the Tribunal did not accept that the applicant took copies of the book on board his ship and was not satisfied that he would face any harm because of a political opinion and found that his fear of convention-related persecution in Iran was not well founded.
In argument before me today, Mr Newman for the applicant submitted an amended application which claims that the Tribunal erred in law because it drew an inference that fear of detection and extreme punishment would have deterred the applicant from taking the books on board when there was no basis in fact for such fears to be imputed to the applicant.
In his oral submissions to the Court this afternoon, Mr Newman submitted that the Tribunal imputed fears to the applicant based on an appreciation of a risk, but the evidence did not bear out this inference made by the Tribunal. Mr Newman submitted that the inference of an overwhelming fear was based on an absence of evidence in that unless it could be shown that there was evidence that the applicant did appreciate the risk, or, more correctly, the magnitude of the risk, then there was no evidence upon which the inference could be based. He did concede that the applicant had some fear in respect of the books but not of a fear so overwhelming that would allow the inference to be drawn.
Mr Newman referred to one passage in the Court Book as to whether the authorities had any trust in him based on what the Tribunal said was his history. Mr Newman submitted that the applicant's answer that there was no trust whatsoever did not relate specifically to the applicant but to seamen generally - that it was a general statement in reply to the Tribunal's suggestion that seamen who are allowed to travel overseas are politically vetted. I note that Ms Morgan of counsel for the respondent takes a different view but submits that whichever version the Court accepts, the result is virtually the same.
Mr Newman relied on a decision of the Federal Court of Jovicic v The Minister for Immigration and Ethnic Affairs, a decision handed down on 18 March 1997. The citation is (1997) 174 FCA. In that decision, his Honour, Goldberg J, on page 9 of the transcript in the final paragraph, referred to the case of the applicant in that matter as being not so much that there was no basis upon which the Tribunal could draw the inference it did, but rather that it drew the wrong inferences from the primary facts as found by the Tribunal when it should have drawn other inferences. Mr Newman put to the Court that inferences must be drawn from primary facts and, of course, the case is about whether the drawing of inferences from primary facts can constitute an error of law.
I note in this decision that the Honourable Goldberg J commented that it was not for the Court to reconsider the merits of the decision and he quoted the statement by the majority of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others reported in (1996) 185 CLR 259, and I quote:
In the present context, any Court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court, for example, in -
He was then referred to the decision of the Honourable Brennan J in Attorney-General of New South Wales v Quin (1990) 170 CLR 1, pages 35 to 36.
The counsel for the respondent, Ms Morgan, submitted that the Refugee Review Tribunal's findings were findings of fact and that no jurisdictional error had been made out. As to the submission that there was no evidence upon which the Tribunal could make the findings that it did adverse to the applicant's claim, she pointed to some five pieces of evidence upon which the Refugee Tribunal based its conclusions that the applicant would have had a fear of the books being discovered. They were the statement in the applicant's own statement at page 47 of the Court Book that he had hidden the books in his cabin. The applicant said at paragraph 11 of that statement:
The books were in a small box. I took the books back to my cabin in the ship. I stored the box on top of my clothes in a top shelf in my cabin. I didn't share my cabin with anyone else.
The second piece of evidence was the fact that Mr Azimee had told the applicant that the books were banned in Iran. That can be found at pages 47 and 140 of the Court Book.
The third piece of evidence was the presence of security personnel on board the ship whose job it was to monitor subversive activities.
The fourth piece is the situation referred to earlier by Mr Newman about there being no trust between the authorities and the applicant. Ms Morgan's submission was that whether the Court followed her interpretation that the statement referred to the applicant personally or Mr Newman's interpretation that the statement was a general statement referring to the Iranian government and Iranian seamen in general, her submission was that it was an equal applicability. There was a knowledge by the applicant that the government lacked this trust and the applicant said there was no trust whatsoever, but he got the job going on long sea voyages because of his experience of some 16 years as a seamen.
The fifth piece of evidence that was relied upon was the applicant's family history. The applicant's brother had been granted refugee status in 1992 in Australia after he had jumped ship and the applicant's father had allegedly been tortured to death some 32 years before.
Those pieces of evidence were, she submitted, sufficient for the Court to make a finding that it was open to the Tribunal to find that the applicant held a sufficient fear; certainly sufficient enough to preclude him from taking the books on board the ship.
Those then are the submissions. I am, as I said, mindful of the fact that it is not for the Federal Magistrates Court conducting a judicial review to reconsider the merits of the decision. It is trite law that questions of credibility are decided by the decision maker. The quote from the well known case of Attorney-General of New South Wales v Quin - one Erris Adrian Quin, as I recall - (1990) 170 CLR 1 were that:
The duty and jurisdiction of the Court to review administrative action does not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the Court avoids administrative injustice or error, so be it, but the Court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
The facts of the matter as I see them are that the applicant did find himself in a position where he suffered pain from an injury; he was taken off the ship and hospitalised; he elected not to return to Iran after the ship had gone; and that the Tribunal did not accept the credibility of his account as to why he elected not to return to Iran and why he sought a protection visa. The Tribunal found that his claims were implausible, notwithstanding the fact that the claims were supported by the evidence of the applicant's brother and Mr Azimee.
Certainly some of the reasons given by the decision maker to the extent of the applicant's concern about the difficulties with his back appears on the last paragraph at page 149 and the first paragraph, page 150 of the Court Book. And the anticipation by the applicant that his life in Iran, if his back gave out, might not be so comfortable is not much more, in mind, than speculation. But that being the case, there is still ample evidence for the Tribunal to have formed the conclusions that it did and to have rejected the plausibility of the applicant's claims as it did.
I find there is no jurisdictional error. There is no error for review and I dismiss the application.
RECORDED : NOT TRANSCRIBED
As far as costs are concerned, in my view, costs follow the event and the applicant has been unsuccessful in his application. This is a matter for costs and I do propose to make an order that the applicant should pay the respondent's costs of this application. I note that there was an initial application in the submissions which the solicitor for the applicant did not rely upon - quite properly so. In fact, Mr Newman began by indicating that upon reading the respondent's submissions that he realised that he had made an error in reading the decision and fully accepted that and that concession, I think is very much to his credit.
The fact is that the matter has been argued today over facts which are in a relatively narrow range and over a relatively narrow range of legal principles. Whilst I accept the fact that counsel for the respondent and her instructor had to reconsider a somewhat changed application from that which they originally came to Court to argue, that is one of the unfortunate realities of litigation and should certainly not have posed an insuperable problem for counsel of the experience of counsel who appears in front of me today, notwithstanding her comparative youth. After all, I did offer the opportunity of an adjournment to later in the week which was not taken up. In my view, I should make an order for costs which is a fixed amount and which is the practice of this Court.
I propose to make an order for a lump sum within the range as set out by Sch 1 of the Federal Magistrates Court Rules 2001. The amount that I consider to be appropriate in the circumstances is the sum of $4650.
ORDERS DELIVERED
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Scarlett FM
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