FEDERAL COURT OF AUSTRALIA

SBAJ v Minister for Immigration & Multicultural Affairs [2002] FCA 697

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

Migration Act 1958 (Cth) s474

Alam v Minister for Immigration & Multicultural Affairs and Indigenous Affairs [2002] FCA 630, followed

SBAJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

S226 OF 2001

MARSHALL J

ADELAIDE

31 MAY 2002

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs of the proceeding.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant has applied to the Court for judicial review of a decision of the Refugee Review Tribunal (“the RRT”). The RRT, in a decision made on 21 November 2001, affirmed a decision of a delegate of the respondent not to grant a protection visa to the applicant.

2                     The applicant is a citizen of Iran. He is currently being held in detention at the Woomera Detention Centre. He entered Australia on 20 April 2001 and applied for a protection visa on 22 June 2001. He is a single man of the Shi’ite Muslim faith who has converted to Catholicism whilst in detention.

3                     The applicant made the following claims before the RRT in written material provided to it:

·        two of his cousins had been imprisoned in Iran due to involvement with a political group known as the Mujahedin-E-Khalq (“the MKO”);

·        because his cousins were known to the authorities he was under scrutiny by the authorities in his employment with an oil company which was owned and run by the State;

·        he was dismissed for criticising the government at work;

·        whilst he was campaigning to be reinstated a warrant for his arrest was presented to his family; and

·        he decided to leave Iran two months prior to the date of his departure.

4                     The RRT noted at p15 of its decision, in respect of the above claims that:

“It must be clearly noted up to this point, the Applicant claimed fear of persecution in the form of unjust prosecution and torture in captivity, simply for imparting verbally some informal but unfavourable (though largely unexplained) political opinions to some colleagues in his workplace. This was the only ground for his application.”

5                     The RRT advised the applicant that it was unable to make a decision favourable to him on the written material he had provided. The RRT invited the applicant to attend at a hearing before it.

6                     At the oral hearing before the RRT the applicant expanded upon some of his claims. He described the circumstances in which he would speak out against the Government at work and said that he was motivated to do so by President Khatami’s desire that “the people” should “express themselves”.

7                     The RRT accepted that the applicant is an Iranian national who is opposed to the ruling regime, which is an oppressive one. It also accepted that two of his cousins had been mistreated by the authorities because of their involvement in the MKO. It further accepted that “the applicant had sufficient motivation to be both wary of the government and antipathetic towards it.”

8                     The RRT was critical of the applicant’s evidence in several respects. It found that he was not a reliable witness and that parts of his evidence were not credible, including his claim that he spent two to three months denouncing the government publicly when working for a state-owned company. The RRT also highlighted several inconsistencies in the applicant’s evidence. It would serve no useful purpose to repeat them for present purposes.

9                     The RRT also considered that the so-called “warrant” for the appellant’s arrest did not exist. It did so having regard to “unsatisfactorily-explained mutations, in the applicant’s evidence, regarding the document’s nature, provenance and purpose.”

10                  Additionally, the RRT was not satisfied that the applicant faced a risk of persecution in Iran on account of his conversion to Catholicism, primarily on the basis that it considered such conversion not to be genuine.

11                  The RRT concluded that:

“On the evidence before it, the Tribunal is not satisfied that the Applicant faces a real chance of Convention-related persecution in Iran. He is not a refugee."

12                  On 8 February 2002, Mansfield J gave the applicant leave to file and serve an outline of argument by 20 March 2002. On 28 March 2002, the applicant’s former solicitors then filed a document entitled “Notice of Acting”. On 3 April 2002, the Court ordered, inter alia, by consent, that “the applicant file and serve any notice of facts, issues and contentions on or before 17 May 2002”. By the commencement of the hearing of the application no outline or notice had been filed. On 19 April 2002, the applicant’s former solicitors filed a notice of ceasing to act.

13                  On 27 March 2002, the respondent’s solicitors filed a document entitled “respondent’s submissions”. In those submissions the respondent observed that the decision of the RRT was made after 2 October 2001 and was consequently subject to the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (“the 2001 Act”). It was contended that the RRT’s decision is a “privative clause decision” within the meaning of s474 of the Migration Act 1958 (Cth) (“the Act”).

14                  It is unnecessary for present purposes to consider whether the current application is rendered nugatory by s474 of the Act. The reason for that is that no submissions have been advanced on behalf of the applicant which disclose any judicially reviewable ground upon which the decision of the RRT might be overturned.

15                  In his affidavit filed with his application the applicant raised arguments concerning why certain of the RRT’s findings of fact should not have been made. He also raised a concern about the quality of the translation service made available to him at the hearing before the RRT. As is pointed out in the respondent’s written outline of argument, however,  those concerns have not been raised beyond a mere assertion. In oral submissions today, the applicant repeated matters which had been put to the RRT. The Court is not in a position to review the RRT’s decision on the merits, as was explained to the applicant at the hearing.

16                  I have considered the RRT’s reasons for decision with care and I am unable to discern that any legal error has been committed by the RRT which this Court may have been able to remedy, putting to one side the effect of the 2001 Act.

17                  In a case such as the present it is appropriate for the Court to consider the merits of an application for review of the decision of the RRT in advance of a consideration, if necessary, of the effect of s474 of the Act; see Alam v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2002] FCA 630 at [3] to [12], where Merkel J convincingly outlines why a contrary approach is unwarranted.

18                  The application must be dismissed, with costs.

Associate:

Dated:              31 May 2002