SZTAK v Minister for Immigration

[2014] FCCA 1420

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTAK v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1420

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to consider all the integers of the applicant’s claims and denied the applicant procedural fairness.

Legislation:

Migration Act 1958, ss.36, 422B, 474

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZTAK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1520 of 2013

Judgment of: Judge Cameron

Hearing date: 30 June 2014

Date of Last Submission: 30 June 2014

Delivered at: Sydney

Delivered on: 10 July 2014

REPRESENTATION

Counsel for the Applicant: Mr P. Bodisco

Solicitors for the Applicant: Stanford

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1520 of 2013

SZTAK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Iran who arrived in Australia by boat on 1 May 2012.  On 14 July 2012 the applicant lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Iran because he had had an affair with a married woman.  On 19 December 2012 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa were summarised by the Tribunal in its decision.  As summarised by the Tribunal, the applicant made the following claims in his protection visa application:

   a)in June 2011 he commenced a relationship with a woman whom he later found out was married.  The woman’s husband started looking for him after finding out about the affair and as a result he tried to hide with some friends;

   b)he would face the death penalty in Iran for having had sexual relations with a married woman and if the woman’s husband presented two witnesses he would be sentenced to death under Sharia law;

   c)a month before his departure from Iran, three men visited his home and told his mother that he would be killed; and

   d)he did not believe in any religion.

2. In submissions made on the applicant’s behalf, his representatives submitted that he identified as an Aryan and Zoroastrian and had no religion.

3. The applicant attended a Tribunal hearing on 2 May 2013 and made the following claims:

   a)he met his partner, whom he had previously seen driving past, when she offered him a lift in her car while he was waiting at a bus stop.  When he entered the car, they had a conversation and exchanged telephone numbers and later contacted each other using SMS messages.  They met again two to three days after their first meeting and agreed to become intimate.  He could not remember but thought they then became intimate ten days after they met and continued to have sexual relations once every few weeks at his home;

   b)his relationship with his partner, which was his first love affair, lasted six to seven months or perhaps eight or nine.  During the relationship they spoke on the telephone and met on a few occasions at his home and also at a pizza shop.  He had forgotten a lot of things because he did not like to think of them as they had caused him a lot of problems;

   c)three weeks before he left Iran three men, one of whom he thought was his partner’s husband, visited his home in his absence and made threats to kill him.  His mother suffered a mild stroke as a result of the visit.  He discovered his partner was married when his sister telephoned him and told him about the visit from the three men;

   d)after he found out about the visit he went to a friend’s house and unsuccessfully tried to contact his partner.  He did not speak to her again or try to contact her and had heard nothing further about her.  Although he had been somewhat concerned about her, he also hated her for lying to him;

   e)after a while he moved to another friend’s home.  While there he spoke to his father who told him that he could face the death penalty;

   f)about two weeks after the visit from the three men, he made arrangements to leave Iran.  While he was still in Iran he was told by his family that there were people around their home.  His brother was stopped in the street, asked about his whereabouts and beaten.  On another occasion a car belonging to a mosque was seen near his home;

   g)he had no information about whether any charges had been laid against him or his partner and did not know if the authorities knew about their affair;

   h)he feared his partner’s husband.  The husband was a member of the Sepah and Basij and he feared that those groups and the authorities would support him (the partner’s husband).  He also feared the government and feared returning to Iran after leaving illegally and seeking protection in Australia;

   i)he feared that his partner’s husband would be able to find him if he moved to Tehran;

   j)he had no particular beliefs and although he held some Zoroastrian views, he did not go for prayer and did not attend mosques or temples.  The Iranian authorities did not want people to observe Zoroastrian beliefs; and

   k)on two occasions in 2003 or 2004 he was detained for two or three days during a (Zoroastrian) ceremony.

4. The applicant’s representative submitted at the Tribunal hearing that the applicant’s partner was Kurdish, that Kurdish clans were strong and had strict religious belief and that they would seek revenge against the applicant.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

   a)the Tribunal found the applicant’s evidence concerning his first meeting with his claimed partner highly tentative and lacking in supportive detail and it noted that the applicant could not remember what they had discussed or how their claimed chance meeting had been the genesis of a romantic extramarital affair.  It found that the applicant’s evidence in relation to the genesis of the relationship was not credible.  The Tribunal also found the applicant’s evidence concerning his claimed affair superficial, lacking in detail and untruthful.  It found it implausible that a married woman in a conservative city such as the one in which the applicant had lived would have picked up a strange man while driving alone past a bus stop, driven him to his work, exchanged telephone numbers with him and then embarked on an extramarital affair.  The Tribunal concluded that the applicant had not met his partner as claimed;

   b)the Tribunal found the applicant’s evidence concerning the nature of his affair superficial.  In this regard, it noted that although the applicant had said that he and his claimed partner had spoken on the telephone, he had provided no information about what they discussed, that his evidence about when they agreed to become intimate was lacking in detail and that despite claiming to have been in an extramarital affair in a conservative city, he also claimed that they met in public places.  The Tribunal also noted that when asked about his first occasion of intimate relations with his claimed partner the applicant was unable to provide any details and, given that he claimed that the affair had given rise to serious consequences, it did not believe that he would not have been able to recall what led to their first romantic encounter.  Further, the Tribunal expected that the applicant would have been able to provide evidence with corroborating detail as to the duration of the relationship, its genesis, its development and how it could have continued for six to seven or maybe eight to nine months without him knowing that his partner was married.  The Tribunal did not accept the applicant’s explanation for the vagueness of his evidence given that he claimed that the events in question had led to him fearing for his life;

   c)the Tribunal noted the applicant’s evidence that he had not spoken to his partner after their affair ended and had no information about her circumstances following her husband’s discovery of their affair.  It found it was not credible that, having been engaged in an intimate affair with the woman, the applicant would not have made some effort to determine her circumstances and whether she was at risk because of the affair.  It also did not believe that the applicant could have had an affair for six to eight months as claimed and not become aware of the fact that his partner was married until men came to his home in search of him;

   d)given its findings on the applicant’s evidence, the Tribunal found that the applicant had not had an affair as claimed.  It found that the applicant was not credible in relation to the central element of his claim and that accordingly there was insufficient credible evidence upon which to make a finding that he faced a real chance of persecution in Iran for having had an extra-marital affair;

   e)having found that the applicant had not had an affair, the Tribunal found that the events he claimed arose as the result of the claimed extramarital affair had also not taken place.  In that connection, it did not find credible the applicant’s claim that his partner’s husband had heard about the affair and that men had attended his home and made threats against him.  The Tribunal also did not believe that the applicant’s mother had suffered a mild stroke after three men visited his home, that his brother had been injured in an attack as a result of the affair or that he had stayed with friends until he departed Iran as a result of the affair.  It found that given that the affair had never occurred, the applicant’s claimed partner’s Kurdish ethnicity had no bearing on his claims and it did not find credible his claim that he would face the death penalty in Iran for having had an extramarital affair;

   f)the Tribunal noted that that applicant indicated that he had some Zoroastrian views but did not go for prayer and in his protection visa application claimed to have no religion.  It did not accept that there was a real chance that the applicant would face persecution for reasons of his religion, his Zoroastrian beliefs or his lack of religious beliefs. The Tribunal found that there was no evidence to support a finding that the applicant’s religious beliefs or lack thereof had drawn him to the adverse attention of the authorities or that there was a real chance that they would in the future, noting that although the applicant claimed to have been detained twice at a ceremony, that detention was by then remote in time.  The Tribunal’s findings on this issue were also supported by country information concerning the non-observance of Islam and Zoroastrianism in Iran; and

   g)the Tribunal found that there was no real chance that the applicant would face persecution in Iran for having sought asylum in Australia.  It noted that country information indicated that failed asylum seekers did not face serious harm in Iran for having applied for asylum abroad and, given that the applicant had no political or adverse profile in Iran, it found that no political opinion would be attributed to him for having been overseas or having sought asylum.

Proceedings in this Court

1. In his amended application the applicant alleged:

   1.The RRT has failed to take into account the full integers of the Applicant’s claim.

   Particulars

   In dealing with the Applicant’s claims to be persecuted on the basis of his Zoroastrian beliefs, the RRT took into account at paragraph [70] that in his protection visa application he claimed to be of no religion, yet failed to take into account evidence by the applicant during the hearing that he had signed the application without reading it.

   2.The RRT has denied the Applicant procedural fairness.

   Particulars

   The Applicant was denied procedural fairness by the RRT putting in place its own procedure for verifying the evidence given by the Applicant during the hearing but then failing to take into account his evidence that he did not understand what he was asked to affirm.

Ground 1

1. In the first ground of his amended application the applicant alleged that the Tribunal had erred by failing to consider an integer of his claims.  He submitted that the integer in question was the alleged fact that he had signed his protection visa application without having read it.  It was said that this fact was important to the Tribunal’s assessment of whether he was at risk of religion-based persecution in Iran because, as the Tribunal observed, while he had said in his protection visa application that he had no religion, at the Tribunal’s hearing he had said that, although he had no particular belief, he identified as a Zoroastrian.

2. The applicant also pointed to the record of an entry interview in which he had participated at the Curtin Immigration Detention Centre (“Curtin IDC”) on 23 May 2012 in which he had been recorded as saying that he was agnostic and did not believe in any god, but believed in his god. Although the applicant submitted that the entry interview had some relevance to this allegation, it appears not to have been referred to in a substantive manner at the Tribunal hearing, judging by the transcript which was annexed to the affidavit of the applicant’s solicitor, Charles Frederick Stanford, sworn on 3 December 2013.

3. Even if what the applicant had said in that entry interview had been of some relevance to the Tribunal’s decision-making process the fact that those comments, and the applicant’s protection visa application, gave a picture of the applicant’s religious commitment different from the one he gave at the Tribunal’s hearing was not an integer of the applicant’s claims. Similarly, the alleged fact that the protection visa application had been signed without the applicant knowing fully what was in it was not an integer of the applicant’s claims. Further, those two matters did not together amount to an integer of the applicant’s claims. A claim or an integer of a claim is a factual allegation advanced by an applicant as a basis upon which it may be concluded that he or she has a well-founded fear of persecution for a Convention reason or of suffering serious harm sufficient to engage Australia’s complementary protection obligations. The fact that one version of events given by an applicant differs from another or that a document might not say what it was believed to say will not satisfy the criteria for the grant of a protection visa.

4. The claims relevantly made in the applicant’s entry interview at Curtin IDC were not different in substance to claims made in the protection visa application and the documents submitted with it, namely that the applicant had no real religious beliefs but, if anything, believed in his own god which in the migration agent’s summary of claims annexed to the protection visa application was expressed as an identification with Zoroastrianism.  As also noted earlier, at the Tribunal hearing he referred to Zoroastrianism.

5. The applicant’s claim to fear religious persecution in Iran therefore had two component integers; his claim to have no religion and his claim to be a Zoroastrian.  The Tribunal considered both of them in para.70 of its reasons.

6. The first ground of the amended application does not disclose jurisdictional error on the Tribunal’s part.

Ground 2

1. The second ground of the amended application alleged a denial of procedural fairness.  The applicant’s submissions indicated that this had two bases:

   a)“the process of verifying the providence [sic] of documents during the hearing created an expectation on the part of the Applicant that should have been taken into account: see Applicant NAFF of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs (2004) 221 CLR 1 at 50 per Kirby J”; and

   b)the Tribunal did not deal with the applicant’s claim that he had not understood the full contents of the documents he had signed.

2. The Tribunal’s procedural fairness obligations have been codified by s.422B of the Act in the provisions of div.4 of pt.7 of the Act. No attempt was made to identify any breach of any of those provisions or to explain why the conduct referred to in submissions or particularised in the amended application might amount to such a breach. Consequently, the ground is not made out.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  10 July 2014