SZTAK v Minister for Immigration and Border Protection
[2014] FCA 1192
•10 November 2014
FEDERAL COURT OF AUSTRALIA
SZTAK v Minister for Immigration and Border Protection [2014] FCA 1192
Citation: SZTAK v Minister for Immigration and Border Protection [2014] FCA 1192 Appeal from: SZTAK v Minister for Immigration & Anor [2014] FCCA 1420 Parties: SZTAK v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 791 of 2014 Judge: PERRAM J Date of judgment: 10 November 2014 Catchwords: MIGRATION – decision of Refugee Review Tribunal affirming decision to refuse appellant protection visa – where appellant gave inconsistent evidence regarding religious beliefs – whether Tribunal failed to consider integer of appellant’s claims or denied appellant procedural fairness Legislation: Migration Act 1958 (Cth) Pt 7 Div 4 Cases cited: Dranichnikov v Minister for Immigrationand Multicultural Affairs (2003) 73 ALD 321 cited
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 citedDate of hearing: 3 November 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 13 Counsel for the Appellant: Mr P Bodisco Solicitor for the Appellant: Stanford Lawyers Solicitor for the First Respondent: Ms L Buchanan of the Australian Government Solicitor
Solicitor for the Second Respondent: The second respondent filed a submitting notice.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 791 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZTAK
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
PERRAM J
DATE OF ORDER:
10 NOVEMBER 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 791 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZTAK
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
PERRAM J
DATE:
10 NOVEMBER 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from the Federal Circuit Court which, on 10 July 2014, dismissed the present appellant’s application for an order quashing an antecedent decision by the Refugee Review Tribunal (‘The Tribunal’). That Tribunal had, on 7 June 2013, affirmed an earlier Departmental decision not to grant the appellant a protection visa.
In the Federal Circuit Court the appellant had pursued two arguments. First, it was said that the Tribunal had failed to consider one of the integers of his claim; secondly, it was argued that the Tribunal had denied the appellant procedural fairness. The Federal Circuit Court concluded neither matter had been established and it was upon that basis that that Court refused the appellant relief.
What was the integer of the claim which was said not to have been taken into account by the Tribunal? It was this: during the hearing before the Tribunal a question had arisen about the appellant’s religious beliefs. He had informed the Tribunal that he held Zoroastrian beliefs. This appeared to be inconsistent with what the appellant had said in his written application for a protection visa, where he said that he had no religion. At the start of the hearing, the Tribunal had pursued a line of questioning with the appellant whose end point appeared to be the linking of the contents of the application form with information which had been provided by the appellant to his migration agent. To this the appellant had replied that he was not the person who had filled out the application and he had merely signed a document which had been placed before him by his migration agent.
Thus was the oral hearing. In its reasons for decision the Tribunal considered, amongst other things, the appellant’s claims that he was entitled to protection due to a well-founded fear of persecution based upon his non-observance of Islam. I interpolate here that the appellant is an Iranian citizen seeking refuge from Iran on a number of bases including persecution on the basis of religious belief. The Tribunal dealt with this claim at [70] of its reasons in these terms:
‘The Tribunal further considered whether the applicant has a well-founded fear of being persecuted for reasons of his religion. It notes that the applicant indicated that he has some Zoroastrian views but does not go for prayer. He did not attend mosque or temple. In his protection visa application he claimed to be of no religion. He claimed to have been twice detained at a ceremony in 2003 or 2004, but did not advance further claims in relation to this claim in his protection visa application or interview. The applicant advanced no further claims in relation to observance of Zoroastrian practices after this time or any adverse interest in him by the authorities for any reason relating to Zoroastrianism. The Tribunal does not accept that there is a real chance the applicant would face persecution for reasons of his religion, having held some Zoroastrian beliefs or having no religious beliefs as there is no evidence to support a finding that his religious beliefs or lack thereof have drawn him to the adverse attention of the authorities or that there is a real chance that they would in future, given that his claimed detentions are now remote in time. He testified that he had mentioned this in Curtin, but nowhere else and that the authorities do not want people to observe Zoroastrian stuff. In this context, the Tribunal further noted the country condition information and considered the applicant’s evidence but does not accept that there is a real chance that the applicant would face persecution for reasons of his religion, given that apart from these claimed arrests that are now remote in time, there is no evidence before the Tribunal to suggest that the applicant faces a real chance of persecution in Iran for any religious beliefs he may hold or lack of religious beliefs, given the country condition information relating to non-observance of Islam and Zoroastrianism.’
Pausing there, it will be apparent that the Tribunal did not use the alleged inconsistency between the appellant’s statement that he had no religion in his application for a protection visa and his asserted Zoroastrianism at the Tribunal hearing as a basis for disbelieving him. Rather, it seems the Tribunal assessed both claims against the question of whether he would be persecuted in Iran for adhering to either belief system.
In the Federal Circuit Court, and in this Court on appeal, the appellant submitted that the vice in the Tribunal’s reasons was its failure to deal with his explanation for the difference between what appeared in his application form and what he had told the Tribunal. It is true that the Tribunal did not deal with the evidence he had given explaining the apparent inconsistency but this was because, so it seems to me, it had no occasion to do so. That inconsistency had not been used by the Tribunal as a basis for disbelieving him and hence any explanation by him as to why the inconsistency should not lead to that inference was beside the point. The Federal Circuit Court reached essentially the same conclusion, observing (at [14]) that the Tribunal had considered both the appellant’s claim to have no religion and also to be Zoroastrian.
No error is disclosed in that conclusion in my opinion. It is not necessary, in that circumstance, to determine whether the appellant’s explanation for the apparent inconsistency between his application for a protection visa and his oral testimony to the Tribunal was an integer of his claim as that term is explained in authorities such as Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 and Dranichnikov v Minister for Immigrationand Multicultural Affairs (2003) 73 ALD 321 (HC).
During oral argument, Mr Bodisco, pro-bono counsel for the appellant, submitted that by failing to consider the inconsistency issue the Tribunal had deprived itself of the opportunity of considering more closely the appellant’s religious claims and that a closer examination of those claims might have led to a different conclusion on the question of whether he held a well-founded fear of persecution. This is essentially a new case that his claims were not properly considered. It was not run below nor is it countenanced in the notice of appeal in this Court. I do not propose to consider it.
What then of the denial of procedural fairness? In the Federal Circuit Court this was identified by the appellant as ground 2. One aspect of it appeared to be a re-agitation of the suggestion that the Tribunal had failed to deal with an integer of his claim. For the reasons just given, however, I do not accept that the Tribunal in fact used the appellant’s protection visa application in the manner upon which this argument is necessarily premised.
The Federal Circuit Court dismissed this argument on the basis that the appellant had not identified any provision of Division 4 of Part 7 of the Migration Act 1958 (Cth) which was engaged. Even assuming, for the sake of argument, that this was an erroneous conclusion or, as Mr Bodisco submitted, that the issue had not been raised against the appellant in the Federal Circuit Court, no actual breach of procedural fairness could be shown.
The second variant of this argument was that by quizzing the appellant about the circumstances in which he came to sign his application form for a protection visa the Tribunal had engendered an expectation in him that his answers would be taken into account in the Tribunal’s process of reasoning. Leaving to one side the question of whether such an argument is an invocation of the body of principles surrounding legitimate expectations and, with it, the corresponding issue of whether such a ground is available under the rubric of Division 4 of Part 7, I would be disinclined to accept the argument. If the Tribunal had opted to reject the appellant’s evidence about his religious practices on the basis of the inconsistency between the accounts he had given, I can well see that it would have been difficult for the Tribunal to proceed fairly without embarking in some way upon a consideration of the appellant’s explanation for the apparent inconsistency. The Tribunal successfully skirted the issue of inconsistency by assessing the appellant’s claims for protection upon the assumption that each of his claims in respect of his religious practices – whether consistent or not – was, for the sake of argument, assumed to be correct. No unfairness, whether procedural or otherwise, can have arisen from this approach to the matter.
Again, the Federal Circuit Court was minded to reject this aspect of the argument on the basis of an absence of any foothold in the text of Division 4 of Part 7. For the reasons I have just given, even if the Federal Circuit Court had been wrong in that conclusion, I would still have rejected the argument on the substantive basis that there was no denial of procedural fairness of any kind.
In those circumstances, it seems to me that the appeal must be dismissed with costs.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate:
Dated: 10 November 2014
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