SZNBS v Minister for Immigration - [2009] FMCA 402

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNBS v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 402

MIGRATION – Review of decision of RRT – where applicant did not accept Tribunal’s findings concerning his evidence.

Migration Act 1958, ss.65, 424AA

Applicant:

SZNBS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3346 of 2008

Judgment of:

Raphael FM

Hearing date:

16 April 2009

Date of Last Submission:

16 April 2009

Delivered at:

Sydney

Delivered on:

16 April 2009

REPRESENTATION

For the Applicant:

In Person

Counsel for the Respondent:

Ms T Wong

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the First Respondent's costs assessed in the sum of $4,100.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3346 of 2008

SZNBS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Iran. He last arrived in Australia on 14 February 2008 travelling on an Iranian passport and an Australian visa which had allowed him an original entry on 29 March 2006. On 6 August 2008 the applicant applied for a protection (Class XA) visa. On 25 August 2008 a delegate of the Minister refused to grant him a protection visa and on 1 September the applicant applied for a review of that decision from the Refugee Review Tribunal. The Tribunal invited the applicant to a hearing which he attended. On 28 November 2008 the Tribunal determined to affirm the decision under review and it published that decision on 1 December 2008.
The grounds upon which the applicant claimed that he was a person to whom Australia owed protection obligations were originally suggested to be associated with his military service in Iran and some questioning he received at the airport from the revolutionary guard when he left the country. The applicant, along with most other males of his age, had been required to undertake military service.
As part of those obligations he appears to have remained as a reservist of some sort for at least five years. In his protection visa application (“PVA”) [CB 20] he expresses concern that he might be called up to take part in a war in the Middle East. The second ground is also referred to in the PVA and relates to a conversation he had with two officers when departing for Australia. He said they scanned his passport and asked him whether he took drugs.
The applicant also mentioned that he had problems with his religion when he was working in Iran which caused him to be dismissed from his employment. At the Tribunal hearing the applicant expanded upon these matters. The Tribunal discussed with him his concern about being required to go back into the army. The Tribunal explained to the applicant that under ordinary circumstances a requirement to undertake military service and reserve duties would not be considered to have a convention nexus unless the requirements were placed upon him in a discriminatory manner for a convention reason.
The Tribunal then discussed with the applicant the possibility that he might be a member of a particular social group of conscientious objectors and the applicant explained to the Tribunal that one of the reasons that he did not wish to return to the army was he did not wish to kill people or be killed. The Tribunal questioned the applicant about his other concerns in particular the interview with the Basij at the airport. The applicant told the Tribunal that he had not been detained at the airport and that he had been allowed to go through after he had responded to the questions put by the officers. The Tribunal asked the applicant why, if he was so concerned about this matter, he had not lodged a protection visa application earlier.
During the course of the discussion between the applicant and the Tribunal the applicant mentioned three other incidents in which he had been involved with the Basij. He said that he had been stopped and questioned by them whilst he was driving with a friend in a car in October 2007. He told that he was stopped once when a can of whiskey was found on him and he was punched in the stomach a few times and a further occasion when he was stopped and accused of going out to pick up girls and was physically mistreated.
The Tribunal pointed out to the applicant that these three incidents had not been mentioned in either his PVA or his interview with the delegate and explained that this could be a reason, or part of the reason, for the Tribunal not accepting his story.
During the course of the hearing the Tribunal on a number of occasions referred to matters of concern in a way which appears to me to have complied with the provisions of s.424AA of Migration Act 1958 (the “Act”), examples are found at [CB 62], [65], [69], [69], [72] and [71]. In its findings and reasons which commence [CB 75] the Tribunal indicated that it did not accept the applicant's evidence about the three incidents which had only been raised at the hearing:
“The Tribunal is conscious that the applicant is unrepresented but nevertheless considers his failure to raise these claims in a timely manner to be significant. As the Tribunal has also put to the applicant, it considers his willingness to return to Iran in October 2007 to be at odds with his claims concerning harassment and mistreatment at the hands of the Basij in the past. It may be that he had some difficulty in getting a ticket to return to Australia and this prolonged his stay. However, this does not alter the fact that he voluntarily returned to Iran in October 2007.
The Tribunal does not accept as credible the applicant's claims concerning being questioned, harassed or mistreated by the Basij in the past. It does not accept that he has in any way come to the adverse attention of, or been harmed by, the Basij.”
The Tribunal turned to a matter first raised by the applicant in his PVA about possible discrimination against him in employment. With the assistance of independent country information the Tribunal drew from the applicant the fact that persons such as himself, who were secular by nature and not regular attendees at the mosque, might have difficulty in obtaining or maintaining employment in the public service. However, in this applicant's case, whilst the Tribunal was prepared to accept that he might not have obtained such employment, he had alternative employment in the private sector at all material times. The Tribunal concluded that he had not been persecuted for reasons of religion on that ground.
The Tribunal also concluded that it could not be satisfied that any obligation upon the applicant in relation to his military service was being applied against him in a discriminatory manner so that it could constitute persecution nor was it satisfied that Iranian authorities were calling up people such as the applicant or that they would do so in the reasonably foreseeable future:
“[102]However, even if there were a real chance that the applicant could be called up for further service in the reasonably foreseeable future, for instance in the context of regional tensions or conflict, the Tribunal does not accept that any requirement to serve in the military would constitute persecution for a Convention reason.
…
[105]The applicant told the Tribunal that he did not wish to serve in the military if called up because he did not wish to be killed or kill others. When questioned further by the Tribunal, he did little to explain his objection. The applicant has undertaken 18 months military service and two months training in the past. There is nothing to indicate he has expressed any objection to this. It may be that this element of military service is compulsory, that he needed to do this in order to work and that it did not involve actual combat. However, there is little evidence to indicate that the applicant has expressed or manifested any conscientious objection to serving in the military. … The Tribunal does not accept on the evidence before it that the applicant has a genuine conscientious objection to military service of any sort.”
The Tribunal concluded at [109] of [CB 79] that it did not accept that the applicant had suffered convention relation persecution in Iran or that he was at the time of his departure of any adverse interest to the Iranian authorities:
“[109]Looking to the reasonably foreseeable future, it finds to be remote the chance that he would suffer persecution in Iran for reasons of religion, political opinion or any other Convention ground.”
On 17 December 2008 the applicant filed with this court an application for review of the decision of the Tribunal. The grounds of the application were:
1) I don't accept the RRT decision because of the evidence relating to my claims to be mistreated and tortured in the past because of my religion.
There is no particularisation of this claim. When the applicant came into court today he made it clear through his interpreter that his concern was that the Tribunal had not accepted his evidence, in particular he was upset that the Tribunal had dismissed the claims that he had made at the hearing about his run-ins with the Basij. Whilst this is understandable the failure to accept an applicant's claims does not amount to a jurisdictional error.
In her helpful written submissions Ms Wong states that she has considered the whole of the Tribunal decision, which is of some length, in some great detail, and she has been unable to see (as a model litigant) any failure by the Tribunal to act in accordance with the requirements of the Act. It seems to me that the Tribunal was fair with the applicant in providing him with details of all the concerns that it had, thus complying with s.424AA even though many of the matters raised would not constitute "information" for the purposes of the Act.
The Tribunal invited the applicant to a hearing which he attended. It discussed his claims in some detail and gave him every opportunity to expand upon them. But giving a person an opportunity to expand upon the claims does not mean that the Tribunal must accept them and in this case it did not. This failure to attain the state of satisfaction required by s.65 does not amount to jurisdictional error.
In these circumstances I am unable to accede to the applicant's requests to remit this matter to the Tribunal for further hearing. The application is dismissed. I order that the Applicant pay the First Respondent’s costs which I assess in the sum of $4,100.00.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: