SZTAC v Minister for Immigration

[2013] FCCA 2366

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTAC v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2366

Catchwords:

MIGRATION – Application for review of decision of the Refugee Review Tribunal – application raised no arguable case for the relief sought – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476.

Federal Circuit Court Rules 2001 (Cth) r.44.12.

NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
SZNOX v Minister for Immigration and Citizenship [2009] FCA 1233
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; (1985) 6 FCR

Applicant: SZTAC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1492 of 2013

Judgment of: Judge Nicholls

Hearing date: 16 October 2013

Date of Last Submission: 16 October 2013

Delivered at: Sydney

Delivered on: 16 October 2013

REPRESENTATION

Applicant In Person

Appearing for the Respondents Mr Baird

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The name of the first respondent is amended to read “Minister for Immigration and Border Protection”.

2. The application made on 2 July 2013 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant pay the first respondent’s costs set in the amount of $3,326.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1492 of 2013

SZTAC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 2 July 2013 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 7 June 2013 which affirmed the decision of the Minister’s delegate (“the delegate”) that the applicant not be granted a protection visa.

Background

1. I have before me today a bundle of relevant documents, (“the Court Book” ‑ “CB”), filed by the Minister in these proceedings from which the following can be ascertained.

2. The applicant is a national of Iran (CB 2). He arrived in Australia on 20 February 2012 (CB 3). He applied for a protection visa on 17 May 2012 (CB 1 to CB 52, including attachments). His claims to protection were set out in a hand written statement (CB 7 to CB 17).

3. In essence, the applicant’s claims were that he feared harm from the Iranian authorities because he had refused to cooperate, or work, with “Iranian intelligence”. He feared that he would be considered a spy or “anti-regime”. He referred to a number of instances both in Iran and overseas that he said supported his claim.

4. The applicant attended an interview with the first respondent’s delegate on 30 July 2012 (CB 61). On 8 August 2012, the delegate refused the applicant’s application for a protection visa (CB 54). The delegate found that the delay in seeking protection and “the absence of any credible evidence to indicate” that he was of interest to the Iranian authorities led the delegate not to be satisfied that the claimed fear well-founded (CB 67). The delegate also found adversely to the applicant in relation to complementary protection (CB 68).

The Tribunal

1. The applicant sought review by the Tribunal on 23 August 2012 (CB 70 to CB 75). He provided a written statement in further support of his claims (CB 76). In essence, this was a reference to a person he claimed to have met in Thailand and whom he claimed to be with “Australian intelligence”.

2. The applicant attended a hearing with the Tribunal on 14 May 2013 (CB 118). He provided a further written statement to the Tribunal on 24 May 2013, in which he stated that he did not practice any religion, but that those who had travelled with him “for sport” would be witnesses to him entering churches, temples and mosques while travelling (CB 121).

3. The Tribunal’s account of the hearing is set out in its decision record ([36] at CB 141 to [51] at CB 143). The following is of note in the Tribunal’s report of the hearing ([39] at CB 141 and [42] at CB 142):

   “[39] The applicant testified that it is difficult to say what he fears in Iran. There is no justice there. If he had made many mistakes such as having gone to church ten times if they found out about it he could be killed. He has travelled abroad extensively and been exposed to different cultures. He confirmed that he has not converted to Christianity and has not been baptised. He further noted he has been in temples in Thailand, although not a Buddhist but would pray before fights. He fears that he will be killed if he returns to Iran. He testified that he has been held at Evin prison and does not want to go back as if you are sent there you don’t normally come out.

   …

   [42] The applicant testified that he has had no problems with the Sepah or Basij or police in Iran. he has been approached to train the Sepah in martial arts but managed to avoid doing so. He does not believe in religion. He is not political.”

4. The Tribunal noted the applicant’s “confused testimony and evidence” ([55] at CB 143), but nonetheless accepted some of the applicant’s factual claims that he was a boxer, and had travelled extensively. As to the remainder the Tribunal stated ([55] at CB 143):

   “…The applicant was advised by the Tribunal that the credibility of adverse interest in him was at issue in the hearing, given his ability to enter and exit Iran repeatedly despite claiming to be of interest to the Iranian authorities.”

5. The Tribunal considered, and rejected, a number of key claims made by the applicant in relation to the Refugees Convention. The Tribunal rejected that the applicant:

   1)was of adverse interest to the intelligence service in Iran ([55] at CB 143 to CB 144).

   2)would be considered a spy ([57] at CB 144).

   3)had been detained at (“the infamous”) Evin prison ([58] at CB 144).

   4)had been persecuted for reasons of religion ([59] at CB 144 to CB 145).

   5)was associated with “Australian intelligence” ([60] at CB 145).

   6)feared persecution because of claiming asylum in Australia and having stayed in Australia for some time ([61] at CB 145).

   7)had fears emanating from matters posted on the applicant’s “Facebook account” ([62] at CB 145).

6. The Tribunal also considered the factual assertions in light of the complementary protection criterion and was not satisfied that the applicant was “a person in respect to whom Australia [had] protection obligations” (s.36(2)(aa) of the Act) (see [63] at CB 145 to [65] at CB 146).

Application Before the Court

1. The application to the Court contained a handwritten narrative. No assertion of legal (jurisdictional) error is made. However, the following may be discerned. First, the applicant claims that he is a Christian and has “a strong witness for my word”. Second, the Tribunal did not accept his evidence (“…have no personal respect for my personal opinion…”). Third, he seeks another opportunity to “better” explain his claims to protection.

Before the Court

1. At the first Court date in this matter, the applicant appeared in person. He was assisted by an interpreter in the Farsi (Persian) language. In light of the applicant’s “grounds”, the Court explained that it could not substitute its own findings for that of the Tribunal and grant him a visa. Further, the Court explained that the purpose of judicial proceedings was to ensure that the Tribunal had made its decision according to the law.

2. The applicant then indicated with words to the effect that “the language barrier” at the Tribunal meant that he could not convince the Tribunal or give answers in a way that it could properly understand his claims.

3. The applicant was referred to a lawyer on the panel of the “Refugee Review Tribunal Legal Advice Scheme”, and given the opportunity to file any amended application and any evidence in support of any ground, in that application. The matter was set down for mention today, 16 October 2013. The applicant was put on notice that if no proper grounds for review could be articulated then the Minister may press for a “show cause” hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) on that date.

4. Since the first Court date, the applicant has filed an affidavit in which he states:

   “First time I went under cover church in Iran 18 years ago and by blessing of God I get to know my current church in Australia this letter confirm it.”

   Attached to this affidavit is a lengthy statement addressed to “The Department of Immigration and Citizenship” dated 9 September 2013. The “letter” is from a person who identifies himself as a Pastor. The “letter” contains a heading: “Liberty Baptist Church”. Also attached is a “Certificate of Baptism” for the applicant dated 14 July 2013 (after the filing of his application with this Court, clearly this was not before the Tribunal).

5. No amended application has been filed. No further evidence has been provided to the Court. In these circumstances, the Minister pressed for an immediate “show cause” hearing pursuant to r.44.12 of the Rules. In the circumstances set out above, it was appropriate that the Court proceed to such a hearing.

6. Before the Court today, the applicant again appeared in person and was assisted by an interpreter in the Farsi (Persian) language. Mr Baird appeared for the Minister.

7. The applicant made reference to what I understood to be the hearing before the Tribunal and said that while he was asked whether he was a Muslim, he responded in the negative but that he was not asked to provide an additional explanation as to his religious persuasion or conviction. The applicant claimed that, had he been so asked, he would have taken the opportunity to provide further information to the Tribunal.  The applicant explained that he felt that he could not advance any such explanation in the absence of any invitation to do so by the Tribunal.

Consideration

1. The issue before the Court is whether the application raises an arguable case, in law, for the relief that the applicant seeks. While I note that the application does not seek the usual relief by way of the prerogative writs of Mandamus and Certiorari, the applicant does seek an order that the decision of the Tribunal be “quashed”.

2. No arguable case is raised by the application to the Court.

3. Despite the Court’s attempt to explain the Court’s role to the applicant, as above at [13], the applicant continues to labour under the misapprehension that the Court can grant him a protection visa. He now seeks to put before the Court a claim to protection on the basis of his conversion from Islam to Christianity. I should note that the statement from the Pastor even if taken at face value (the applicant has been baptised and is now a Christian) cannot assist.

4. The Pastor states that he has known the applicant since 30 June 2013. His letter refers to events since that time. As the Tribunal’s decision was made on 7 June 2013, nothing that the Pastor says, or indeed the applicant has done since that time in relation to any conversion to Christianity, can assist in revealing jurisdictional error in the Tribunal’s decision.

5. Before the Tribunal, the applicant’s claims to fear harm on the basis of religion if he were to return to Iran were as set out in his application for a protection visa, and in the evidence he gave to the Tribunal.

6. The Tribunal’s analysis in relation to religion is set out at [59]

   
   

   (at CB 144 to CB 145) of its decision record:

   “The Tribunal next considered whether the applicant’s fear of persecution is well-founded for reasons of religion. The applicant was born a Muslim but is not from a devout family. He is not a practicing Muslim. His evidence was that he attended church outside Iran on about ten occasions. He has not converted to Christianity or been baptised. He has also prayed at temples in Thailand. There is no evidence to suggest these activities have come to the attention of the Iranian authorities. The applicant is not a Christian, nor a Buddhist. The Tribunal finds that the applicant would not be perceived to be a Christian or Buddhist in Iran. The country condition information indicates that

   
   

   non-practicing Muslims do not face a real chance of persecution in Iran. The Tribunal notes the applicant’s multiple exits and entries from Iran without difficulty. Given all the evidence before it, the Tribunal finds that there is no real chance the applicant would face persecution in Iran for reasons of religion.”

7. On the evidence before the Court, the relevant documents in the Court Book, and the absence of any evidence to the contrary by the applicant, the Tribunal dealt with the claim relating to religion, and all aspects of that claim as presented to it. In these circumstances, that the applicant, since that time, converted to Christianity cannot go to reveal any legal error on the part of the Tribunal.

8. It is clear that the Tribunal took an adverse view of the credibility of much of the applicant’s evidence to it. There is a suggestion in the application to the Court that there may have been some difficulty in the Tribunal understanding him

9. The applicant was given the opportunity to put any evidence before the Court in support of his grounds. He was referred for legal advice. No evidence, for example, a transcript of the hearing with the Tribunal, has been put before the Court. In these circumstances it is not open to the Court to draw any inferences as to what may have otherwise occurred at the Tribunal hearing (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).

10. The only evidence is the Tribunal’s account of the hearing in its decision record. This reveals that when the applicant was invited to the hearing he was asked the following (CB 93.6):

    “Interpreter: Please advise immediately if required.”

    The applicant respondent that he did not required the assistance of an interpreter (CB 99.3).

11. The applicant attended the hearing as did a witness on his behalf (CB 118). The only account of the hearing reveals that the applicant made no complaint about any difficulties in his capacity to participate in the hearing without the assistance of an interpreter. Nor is any difficulty otherwise apparent ([36] at CB 141 to [51] at CB 143).

12. I also note that, in his protection visa application, the applicant declared that he could speak, read and write in English ([12] at CB 2). It is also of note that, following the hearing, the applicant submitted written submissions to the Tribunal (CB 121). When these are read with the Tribunal’s account of the hearing, it is clear that the applicant sought to emphasise some of those matters which the Tribunal reported it has discussed at the hearing. There is no complaint in these submissions about difficulties with the conduct of the hearing. Nor is there any evidence of any other relevant complaint made to the Tribunal at that time.

13. It is of note, given the applicant’s “evidence” to the Court now about his religious circumstances, that in his post hearing submission to the Tribunal the applicant relevantly stated (CB 121.4):

    “Also I not really practice and stuck to any religion as I said many people can be witness for that.”

14. The applicant has provided no evidence, for example, by way of a transcript of the hearing before the Tribunal, to support the allegations regarding the Tribunal’s conduct during the hearing. The Tribunal’s account of the hearing indicates that the Tribunal asked about the applicant’s religion and conversion to Christianity. At [39] (at CB 141) the Tribunal reports that the applicant confirmed that “he has not converted to Christianity and not been baptised”. At [42] (at CB 142) the applicant testified that “he does not believe in religion”. If, as the applicant now asserts, these questions were not asked or further questions should have been asked and were not asked, then, the applicant has not taken the opportunity to put any evidence to support that allegation or that complaint before the Court.

15. The applicant’s complaint today was also that by not asking him further questions, the Tribunal, in effect, denied him the opportunity to make out his case. The response to this complaint is twofold.

16. First, it is not for the Tribunal to make out the applicant’s case for him (SZNOX v Minister for Immigration and Citizenship [2009] FCA 1233, Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; (1985) 6 FCR). Second, the relevant obligation on the Tribunal is to invite an applicant to a hearing, which it has done in this case, and to give the applicant a meaningful opportunity to set out his claims for protection. The evidence before the Court supports the proposition that the Tribunal fulfilled its relevant obligation. Conversely, there is no evidence before the Court that the Tribunal failed to fulfil its obligation in that regard.

17. Although not raised by the applicant, I should note that, at the hearing, the Tribunal put the applicant on notice that the credibility of the central issue of his claim to be of adverse interest to the Iranian authorities was of concern, given the applicant’s confused testimony in evidence as the Tribunal reported it.

18. The Tribunal made findings about each of the applicant’s claims and integers of those claims. All its findings, including those on credibility, were reasonably open to it on what was before it. No legal error is revealed in these circumstances.

Conclusion

1. I cannot see that the application before the Court raises an arguable case for the relief sought. It is appropriate that it be dismissed pursuant to r.44.12(1)(a) of the Rules. I will make an order accordingly.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 31 January 2014