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MIGRATION - Review of decision of the Refugee Review Tribunal affirming decision not to grant a protection visa - Iranian citizen claiming political persecution - issue regarding credibility of applicant - decision of Refugee Review Tribunal affirmed.

SDAY v Minister for Immigration [2002] FMCA 326 (13 December 2002)

SDAY v Minister for Immigration [2002] FMCA 326 (13 December 2002)
Last Updated: 16 December 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SDAY v MINISTER FOR IMMIGRATION
[2002] FMCA 326



MIGRATION - Review of decision of the Refugee Review Tribunal affirming decision not to grant a protection visa - Iranian citizen claiming political persecution - issue regarding credibility of applicant - decision of Refugee Review Tribunal affirmed.



Migration Act 1958, s.474

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 229

R & Hickman ex parte, Fox v Clinton (1945) 70 CLR 598 at 616

R & Minister for Immigration and Multicultural Affairs, ex parte Durairajasingham (2000) 168 ALR407

Applicant:
SDAY



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


AZ132 of 2002



Delivered on:


13 December 2002



Delivered at:


Adelaide



Hearing Dates:


17 & 18 June 2002



Judgment of:


Mead FM



REPRESENTATION

Counsel for the Applicant:


Applicant in Person



Solicitors for the Applicant:


Applicant in Person



Counsel for the Respondent:


Kim Tredrea



Solicitors for the Respondent:


Sparke Helmore, Solicitors


ORDERS

(1) That the application be dismissed.

(2) That the applicant pay the respondent's costs in the sum of THREE THOUSAND FIVE HUNDRED DOLLARS ($3,500) pursuant to

Part 21, Rule 21.02 (2)(a) of the Federal Magistrates Court's Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

ADELAIDE


AZ132 of 2002

SDAY


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS


Respondent


REASONS FOR JUDGMENT

1. The applicant is an Iranian national who arrived in Australia on 20th August 2001. He has remained in immigration custody since that time.

2. He lodged an application for a protection visa with the Department of Immigration, Multicultural & Indigenous Affairs on 6th September 2001, which application was refused on 20th February 2002.

3. The applicant sought a review of the Refugee Review Tribunal decision and on 5th April 2002 the tribunal affirmed the earlier decision not to grant a protection visa to the applicant.

4. The basis of the applicant's claim to the tribunal was that he had a well founded fear of persecution, such as to invoke Australia's obligations under the Refugee's Convention and the Refugee's Protocol by virtue of him having been imputed by the Iranian authorities with adverse political opinions of the Iranian government. He claimed that in or about 1998 he first came to the attention of the authorities when he was filmed at an anti-government demonstration at his home town of Izeh, that during that demonstration he was recognised by the authorities in question because he had been shouting slogans and carrying the injured, and that subsequent to that time he had been denied entrance to university, and his brother's university entrance had also been affected as a result of his activities in the demonstration when he was aged 15.

5. The applicant apparently undertook military service in Iran from 1993 to 1995.

6. He said that from March 1996 to May 2000 he worked at a hospital as an assistant nurse and that from May 2000 to October 2000 he worked at a clinic in Eize as an assistant nurse. He said that in 1996 a government minister had visited the hospital where he was an assistant nurse and he criticised the government for lack of specialist services at the hospital during a conversation with the government minister during that visit. He claimed that 2 days later he was called to the Herasat, threatened that he would lose his job and be jailed if he continued to make threats against the government and he agreed not to do so on the basis of which he was able to return to work. He said however that he was demoted and his benefits were cancelled.

7. In October 2000 the applicant was allegedly interviewed by Heresat in relation to his anti government criticisms, lost his tempter, abused the regimes and when he was threatened by Heresat he became fearful, left town, lived in Tehran for approximately 9 months and then left Iran using his own passport.

8. The applicant claimed that during the period that he worked in the hospital he did not get the same bonuses or shifts as others and was constantly under observation. He said he was put on a contract for a

2 year period at a lower rate than other employees because of his opposition to the government.

9. The applicant claimed to be Bakhtiari and is married. His wife, mother, father and three brothers remain in Iran.

10. The applicant did not belong to any political party or movement in Iran.

11. He was issued with a passport in his own name after he finished his military service, which passport was valid for a period of 5 years.

12. The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

13. The Tribunal found on the totality of the evidence no indications that the applicant has a well founded fear for his ethnicity, religious opinions, political opinions or imputed political opinions and accordingly was not satisfied that the applicant had a well founded fear of persecution in Iran on any convention ground based on findings and reasons set out from pages 116 to 127 inclusive of the Green Book.

14. The Tribunal:-

a) Was satisfied that the applicant was an Iranian National (page 117 Green Book);

b) Was satisfied that the events claimed by the applicant did not occur (page 120 Green Book);

c) Assessed what the applicant claimed in light of the UNHCR & Australian Courts cautions on seeking corroborative evidence (page 119 Green Book);

d) Found that significant aspects of the applicant's claim were inherently implausible (page 120 Green Book);

e) Found that in particular the applicant's claims in relation to being dismissed from his employment at the clinic and being imputed with an anti-regime opinion after speaking to a government minister in 1996 lacked credibility (page 120 Green Book);

f) Was of the view that the applicant was of no interest to Iranian authorities either at the time he left Iran or currently and that his claims in support of his application for a protection visa were fabricated (page 120 Green Book);

g) Was not satisfied that the applicant was on the "black list" or that a person who was on such a black list for political activities or imputed political activities would be able to exit Iran by paying a large bribe and found that the applicant did not need a smuggler to arrange his exit from Iran (page 121 Green Book);

h) Accepted that the applicant attended a demonstration in 1998, was filmed at that demonstration, assisted the injured, watched his friend die and that it was reasonable to conclude that he may have been interviewed some days after the event in light of him being a witness to his friend's death (pages 121 to 122 Green Book);

i) Considered even in the light of those circumstances that it was inherently implausible that the applicant would have adverse political opinions imputed to him even after he completed his military service, particularly in light of him being able to obtain government employment when he was 22 years of age after having been able to remain at school and complete his education even if his parents had been required to sign an undertaking to enable that to occur (pages 121 to 122 Green Book);

j) Found no evidence to satisfy itself that the applicant had a profile of political activism against conservative elements in the Iranian regime, that he was not a member of any political party or involved in any political movements and that his involvement in a demonstration when he was 15 was not an incident such that would have imputed an adverse political profile (page 122 Green Book);

k) Found inherent implausibility in the applicant being able to speak to a government minister about his views as regards government health policy, but also noted that he continued to work at the hospital after that conversation for a significant time (page 123 Green Book);

l) Found that even if his work with the hospital thereafter was on a contract with lesser favourable conditions and pay it led to a conclusion that the applicant was not of interest to authorities for having spoken out to a government minister and criticising health policies (page 123 Green Book);

m) Was not satisfied that the applicant had been demoted or watched by authorities or received a lower salary whilst remaining in his government hospital employment as he was able to remain in that employment, sit for a test and when successful, able to resign and obtain other employment (page 123 Green Book);

n) Accepted the applicant was dismissed whilst working at the clinic in 2000 but not that he was dismissed because of his anti regime profile (page 123 Green Book);

o) Found that as he was not dismissed because of an anti regime profile, he was dismissed for other reasons and therefore there was no argument with Heresat (page 124 Green Book);

p) Was not satisfied that the applicant brother's drug problem was caused by the applicant's imputed political opinion (page 124 Green Book);

q) Was not satisfied that any raids occurred on the applicant's home as a consequence of any imputed political opinion of the applicant or that his family had been questioned following his departure from either his home town or from Iran (page 124 Green Book);

r) Was of the view that the applicant's failure to be able to access tertiary education related to his inability to meet the academic requirements in a system of limited availability of places in tertiary institutions and not as a result of politically motivated discrimination (pages 124 and 125 Green Book);

s) Found no evidence to suggest that in the event that the applicant is Bakhtiari that he would face persecution in Iran in general or Khozestan (page 125 Green Book);

t) Was not satisfied that the applicant was of any interest to Iranian authorities at the time that he left Iran and that he had fabricated his claims to create the profile of a refugee (pages 124 and 125 Green Book);

u) Considered the issue of any fear on the part of the applicant of being persecuted in Iran because of applying for refugee status in Australia, even though such claim was not raised by the applicant, and, based on advice from the Australian Department of Foreign Affairs and Trade to the effect that the act of applying for asylum abroad is not in itself an offence in Iran, that at worst, knowledge that an individual had sought political asylum would not result in much more than verbal harassment other than if the asylum seeker had a high opposition political profile (pages 125 and 126 Green Book);

v) Was of the view that the applicant was able to depart legally from Iran with his own passport because he was not of any interest to the Iranian authorities at the time he left Iran and therefore currently was not of any interest to the Iranian authorities (pages 125 and 126 Green Book).

15. Prior to making its decision the applicant was able to give oral evidence to the Tribunal on 22nd March 2002 and the Tribunal also received further written submissions in support of the application dated 14th March 2002 being prior to the hearing and 26th March 2002 subsequent to the hearing. The Tribunal also received other relevant documentary evidence in support of the Application for Review, took that documentary evidence into account and considered relevant independent country information.

16. A finding on credibility is a function of the primary decision maker and in this case the Tribunal clearly disclosed the basis for finding that it did not believe the applicant's claim. (See R & Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at page 423).

17. The tribunal clearly analysed the applicant's claims between pages 116 and 127 of the Green Book. Those claims were considered against the background of certain country information.

18. It is not the role of this Court to substitute its own views of the evidence before it for the views of the Tribunal.

19. The applicant, both in written and oral submissions, stressed the veracity of matters he had put to the Tribunal and criticised the reasoning process of the Tribunal by suggesting that the way the Tribunal came to its decision was indicative of the Tribunal having already made up its mind and that it was under pressure to reject his application. He particularly criticised the Tribunal's rejection of his assertion that he was black-listed in Iran and was unable to leave the country without paying a bribe. He asserted that he had the names and details of other Iranian people who had been detained in the Woomera Detention Centre who had made the same assertions and whose assertions had been accepted by the Tribunal. He asserted that all of those people had been able to leave Iran on their own passports despite being on a black list and that they had been granted protection visas.

20. The applicant complained that the Tribunal had found that he had fabricated his story to support his application rather than giving him the benefit of the doubt.

21. The applicant asserted that the reasoning of the Tribunal was unsound in making a finding that just because he was not arrested in Iran it did not prove that he was not politically active.

22. The applicant mentioned numerous other instances where he complained of the unreasonableness of the Tribunal member rejecting his arguments and coming to the wrong conclusions.

23. The Court must concern itself with the question of whether or not when the Tribunal came to its decision it properly exercised the jurisdiction given to it.

24. It is clear since the decision of NAAV & MIMIA [2002] FCAFC 229 that the powers of the Tribunal have been widened such that only a failure to exercise its decision making powers in a bona fide manner now provides grounds for review. That case concerned the operation of Section 474 of the Migration Act 1958 (Cth). It places into the Migration Act a privative clause, which has been interpreted by the High Court in the case of R v Hickman; ex parte Fox & Clinton [1945] 70 CLR 598 at 616. Dickson J stated the three pre-conditions to the valid exercise of decision making powers to which such a clause applies as:-

a) the decision maker is required to have made a "bona fide attempt to exercise its power;

b) the decision "relates to the subject matter of the legislation";

c) the decision "is reasonable capable of reference to the power given to" the decision maker.

25. A decision maker's decision therefore is protected by the privative clause for only so long as the decision does not exceed his or her jurisdiction and breach one of the "Hickman" conditions.

26. I have read the decision of the Tribunal.

27. I have listened to the submissions of the applicant and read his additional submissions.

28. I have listed to the submissions of counsel for the Minister.

29. I am unable to find anything either in the papers or in the oral submissions of the applicant that would support his argument that the Tribunal prejudged any issues or entered upon its decision with a closed mind.

30. I have set out herein the matters on which the applicant relied and the relevant parts of the decision that related to each of those grounds.

31. There is no evidence that the Tribunal did not give all of the applicant's submissions appropriate consideration.

32. The applicant's claim that he had a well founded fear of persecution on account of an imputed political opinion failed on credibility grounds.

33. In all of the circumstances I am unable to find that any grounds for review as currently permitted by the legislation and the decision of the Full Bench of the Federal Court exist.

34. I find that there is no error of the kind necessary to attract relief under Section 39B of the Judiciary Act as affected by part 8 of the Act is apparent.

35. I dismiss the application and order that the applicant pay the respondent's costs which I assess in the sum of $3,500 pursuant to

Part 21, Rule 21.02 (2) (a) of the Federal Magistrates Court's Rules.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Mead FM

Associate:

Date:
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