SZUNU v Minister for Immigration

[2015] FCCA 1037

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUNU v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1037

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation: 
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Migration Act 1958 ss.36(2)(a), 36(2)(aa), 425, 476, 477

Spencer v the Commonwealth of Australia (2010) 241 CLR 118

Applicant: SZUNU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 802 of 2015

Judgment of: Judge Street

Hearing date: 23 April 2015

Date of Last Submission: 23 April 2015

Delivered at: Sydney

Delivered on: 23 April 2015

REPRESENTATION

There was no appearance by the Applicant

Counsel for the Respondents: Mr Glavac

ORDERS

1. The Proceedings be summarily dismissed.

2. The Applicant to pay the First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 802 of 2015

SZUNU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application under the Court’s jurisdiction under s.476 of the Migration Act 1958 for a Constitution writ in respect of the decision of the Tribunal’s decision on 13 February 2015 affirming a decision of the delegate not to grant the applicant a protection visa. The application identifies the following grounds:

   1. The Tribunal’s decision was affected by a breach of s.425(1) of the Migration Act.

   Particulars

   (a) Failure to disclose to the applicant an issue that arose in the proceedings being an oral translation of an email in the Farsi language that the applicant had submitted to the Tribunal, and conclusions that may be drawn from it.

2. The matter was called outside the Court room and was listed for hearing at 9.30am.  The applicant has not attended.  Rather than simply dismiss the matter for default of appearance, this is a matter where it is apparent that the application disclosed no arguable jurisdictional error and it is appropriate to summarily dismiss the application.  In considering exercise of the Court’s summary jurisdiction under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), I take into account the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at [24]-[25] and [59]-[60].

3. The respondent identified that this is an application that requires an extension of time under s.477. The applicant identifies in an affidavit an attempt to lodge the application within time. However, the explanation proffered is not a satisfactory explanation give the extent of the delay. It is clear from the decision of the Tribunal that the applicant, who is found to be a citizen of Iran and whose claims were assessed against that country, appeared before the Tribunal on 15 January 2015 to give evidence and present arguments and was assisted by an interpreter.

4. There is no substance in these circumstances and the contention of a breach of s.425 of the Act. The Tribunal’s reasons identify that the applicant applied for a protection visa on 16 July 2012 which was refused on 5 July 2013. The Tribunal carefully identified the applicant’s claims and evidence. The Tribunal made adverse findings in relation to the applicant’s credibility, relevantly in para.49:

   49. I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and find that he fabricated his claim in order to be granted a protection visa.

5. It is in those circumstances that the Tribunal made adverse findings in relation to the applicant’s claims:

   52. I lend little weight to the evidence he presented post-hearing. He attached a number of untranslated emails that he claimed show his correspondence with [T]. I note that the address he sends them to and received responses from is ‘[email x] which does not indicate that [T] has anything to do with the address. The yahoo address could easily have been set up by the applicant himself or a friend. I also note that the earliest emails are from September 2012, after he had arrived in Australia.

   53. Although the emails were in Farsi, the Tribunal had the latest one read orally to the member by a Farsi speaker. The response from ‘[email x]’ was essentially that she was in an abusive relationship with her husband in the US who beat her, kept electronic surveillance on all her communication devices, wouldn’t let her out alone and had hidden all of her identity documents so she wouldn’t leave. Her husband wouldn’t agree to a divorce and she asked the applicant to leave her alone.

   54. I find that this email was written by or with the collusion of the applicant to explain his inability to produce any evidence of [T]’s existence, nationality, travel or academic records. In the Baha’i faith men and women have equal right of divorce1, so it lacks credibility (even given the alleged abuse) that as an observant Baha’i [T] would have to wait for her husband to give permission for their divorce.

   55. I also lend little weight to the photos that the applicant claims show [T] with and without him. None of the photos have date stamps on them so it is impossible to know when they were taken. Six photos were submitted. Of these, one shows the back of a woman’s head, another shows the applicant on a motorbike with someone with a piece of material covering their head and upper torso so it is impossible to make out what gender the person is. One photo shows a woman in a city street that he claims is in Michigan yet has no identifying features such as a street sign that may indicate what country, let alone state it is in.

   …

   57. I do not accept that the Basij have any interest in the applicant or that they would because he had gone out with a Baha’i girl. I have already found that the applicant was never romantically involved with a Baha’i girl called [T], therefore he had no cause to fear that the Basij would find out. I also find it implausible that the Basij would do a background security check on him after they issued him with an ID card as it would defeat the purpose of background checks. If such checks were done on the applicant, it is reasonable to believe that they would have been done prior to issuing the card. The fact that he had a card would then indicate that he was of no security concern to the Basij.

   …

   59. I do not accept that he had to enter sensitive military sites for this. Given the nature of the sports (darts, table tennis, cycling and soccer) and the necessity to allow people in the council area to participate, the security implications of many people moving around the area would be significant and it is reasonable to assume that non-sensitive sites would have been chosen to host the sports.

   60. Because he had been issued a Basij ID card and he never had a Baha’i girlfriend I am not satisfied that the Basij came to the area in which he lived and began asking questions about his personal relationships and whether he went to the mosque. These questions appear to be predicated on an interest in someone in a relationship with a Baha’i, which I have already found to have been fabricated.

   61. I am also not satisfied that the Basij pressured him to work for them but he continually made reasons to avoid interviews because he disagreed with their ideology. While it is plausible that they may have offered him a job as a sports trainer or organiser given his background, I do not accept that they would have continually sought his services only for him to avoid interviews. Given the unemployment situation in Iran (an unemployment rate of more than 12%), it is reasonable to believe that there would have been no shortage of applicants if the Basij chose to advertise it, so if the applicant chose not to attend an interview the Basij would have tried to find someone else.

   62. I do not accept that the applicant has genuinely converted to the Baha’i faith but has rather done this in a deliberate and targeted manner for the sole purpose of strengthening his refugee claim. Because I have found that his claim regarding the existence of a Canadian Baha’i girl [T] in Iran to have been fabricated, I do not accept that the applicant had a pre-existing interest in the faith through conversations with her in Iran.

   …

   66. I accept that the applicant has attended a period of religious study in preparation for acceptance into the Baha’i faith baptism and that he has received his Baha’i declaration card. I note the strong reference that [B] provided and believe that he has provided it in good faith. He has however, accepted the applicant’s claim of prior interest in the Baha’i faith in Iran and also that he had been planning to marry [T] in Iran, whereas the Tribunal has found that this account has been fabricated. As a consequence I am unable to lend any weight to [B]’s evidence regarding the genuineness of the applicant’s conversion given that his opinion would have been formed in whole or in part based on the applicant’s claims regarding her pre-existing interest in the faith.

   67. I have also taken into account the letters of support he provided from the Baha’i spiritual assembly in Ryde and the email from a community worker in Brisbane regarding his being approached by the applicant about the Baha’i faith. I lend them little weight in determining the genuineness of his interest in the Baha’i faith. The community worker notes how the applicant told him about his relationship with a Baha’i girl in Iran and from the tone of the email the worker appears to have accepted his account, whereas it is a claim that I have found to be fabricated. The other letters indicate that the local assembly has assessed his sincerity but that he has yet to be fully assessed to the satisfaction of the National Assembly. As with the witness, I believe that the local Baha’i assembly has provided their opinion in good faith but without an appreciation that the applicant has fabricated his prior exposure to, and interest in the Baha’I faith.

   68. I also find that the applicant’s Baha’i declaration and attendance at the study circles has been deliberate and targeted. As I advised the applicant during the hearing, s.91R(3) requires me to disregard this conduct in determining whether the applicant has a well-founded fear of persecution if I found that it was carried out for the sole purpose of strengthening his refugee claim. Because I have found that the applicant is not a genuine Baha’i, it follows that he would not have to announce that this was the case if asked.

   69. I accept that the applicant is an unobservant Muslim however I do not accept that this has caused, or will cause her to come to the attention of the Iranian authorities. Country information indicates that the Iranian authorities do not normally interfere in the private religious lives of their citizens. Low levels of mosque attendance have also been indicated amongst the general Iranian population. Given this, I find that non-observant Muslims are able to live in Iranian society without coming to the attention of the authorities.

   70. I do not accept that the applicant failed to be accepted into a teaching job because he failed the second part of an interview that dealt with religious knowledge. He had failed to mention this previously and, although he claimed he had mentioned it in his entry interview, the account he gave then was inconsistent in that he stated the second part of the interview was as a member of the Basij and this involved a background search.

   71. I accept as plausible that the applicant may have been stopped by the Basij when he was with a woman and may have had his car searched for alcohol. Country information notes that this is relatively common for youth, however I am satisfied that this only amounted to low-level harassment and sits well below the threshold of serious harm. There is no indication that he was of continuing interest to the Basij as a consequence of this and, given the applicant is now over 30 years old and no longer a youth, I do not accept that there is a real chance that such low-level harassment will occur in the future.

6. The Tribunal turned to the issue of being an asylum seeker and relevantly found:

   73. Given I have found that the applicant has not been of interest to the Basij and he has made no claim to have been politically active or of interest to other Iranian security authorities, he would be of no interest to the authorities on return as anyone other than someone returning on a different passport than the one they left Iran on. While he may face questions from immigration authorities at the airport this would be part of the normal immigration process and I am not satisfied that this would come anywhere constituting serious harm. Country information also indicates that the destruction of passports is not penalised in Iran and officials do not attempt to prosecute voluntary returnees.

   74. As the applicant hasn’t raised any other claims to fear persecution and, having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.

7. The Tribunal then turned to the issue of complementary protection and made adverse findings as follows:

   75. Although I have disregarded the applicant’s attendance at Baha’i study circles and receipt of his Baha’i declaration card for the purposes of the applicant’s refugee claims, I have had regard to them in assessing his claims relating to s.36(2)(aa).

   76. I do not accept that he has any interest in the Baha’i faith or has genuinely converted to it, has or would seek to declare his Baha’i faith when asked in Iran, or that anyone in Iran is or was aware, or is likely to become aware that he has any interest in the Baha’i faith, or that he has or will come to the attention of the authorities for being a non-practising Muslim.

   77. I also do not accept that the applicant was ever in a relationship with a Baha’i girl named [T], that he was, is or will be of interest to the Iranian authorities for this relationship, that he was ever excluded from employment for being a non-observant Muslim or that he will be mistreated as a failed asylum seeker. Because of these reasons I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.

   78. As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).

8. It is in those circumstances that the applicant was found not to be a person to whom Australia owes a protection obligation and that the criteria under ss.36(2)(a) and 36(2)(aa) have not been made out. The adverse findings by the Tribunal were clearly open. The findings cannot be said to lack an evident and intelligible justification. The Tribunal clearly complied with the statutory scheme. The proceedings are clearly doomed to failure. I am clearly satisfied the proceedings have no reasonable prospect of success. The proceedings are summarily dismissed.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  28 April 2015