FEDERAL COURT OF AUSTRALIA

SZSWO v Minister for Immigration and Border Protection [2015] FCA 285

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the costs of the first respondent as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The appellant has appealed the decision of the Federal Circuit Court (“the FCC”) dismissing the appellant’s application for judicial review of a decision made by the second respondent (“the Tribunal”). The Tribunal affirmed the decision of a delegate of the first respondent (“the Minister”) to refuse to grant the appellant a Protection (Class XA) visa.

2    Before the Tribunal the appellant, who is a citizen of Iran, claimed to fear harm from persecution in Iran because of his political views, and for reasons of religion because of his conversion to Christianity. The appellant made a number of claims, including that he had been expelled from university in Iran in 2001 on account of his political activities and was required to serve an additional three months of national service as punishment. He also claimed to have developed an interest in Christianity in Iran. The Tribunal did not find the appellant to be a reliable, credible or truthful witness and rejected the appellant’s claims, finding that the appellant’s evidence regarding his claims to lack credibility and that he had fabricated his claims in order to be granted a protection visa.

3    Before the FCC, the appellant contended that the Tribunal had failed to consider an integer of the appellant’s claim to fear persecution for reasons of political opinion in dealing only with the appellant’s claim that he had been expelled from university in 2001 for his association with a particular political group (the Freedom Front) and failing to deal with the appellant’s claim that he had been expelled for two reasons, the other being an essay that he had written. The FCC rejected that contention, reasoning as follows at [82] –[88]:

Against the background of the entirety of the [appellant’s] claims and evidence, there was nothing expressly stated by the [appellant], or clearly arising from the circumstances he presented, to say that he specifically feared harm if he were to return to Iran because of the essay, or anything arising from his authorship of it. His fear was variously stated to be said to arise from his political views.

Noting again, in this context, that there is no mention of the evidence anywhere else in the body of evidence and claims put forward by the [appellant]. There is nothing to say that the essay had any consequence for him beyond the claimed expulsion from university. The claim was explicitly stated and clearly arose from his evidence and submissions as to his membership of the Freedom Front which was perceived to be an expression of his political views.

Nor did the [appellant] give any detail of the essay such as to say a claim arose that the Tribunal is obliged to consider. The only reference in the applicant’s evidence was the title of the essay [Three personalities who were influential in the past three hundred years of the history of Iran] … There is nothing in that title itself, to say that a claim to fear (future) harm arose from the essay such that the Tribunal was obliged to consider it. Noting that no other details were provided by him about “the essay” other than the brief, general description of its subject matter. It was not clear whether “the essay” contained some “political” content offensive to the university authorities or that his “difficulty” in relation to “the essay” was for some other reason.

To engage the Tribunal’s obligation, what is required is a substantial, clearly articulated claim relying on established facts … Before the Court the [appellant] did not show how the mere reference to “the essay” before the Tribunal was a substantial, clearly articulated basis on which the [appellant] claimed to fear either serious or significant harm on return to Iran.

There are two possible views of the [appellant’s] evidence about “the essay”. First, while it was linked to the expulsion to university there was nothing to say that it was a clear or expressed claim to fear harm on political grounds because of it.

In this light, no claim of relevant substance, as explained by the authorities (NABE (No 2), Dranichnikov, WAEE and Htun), was made such as to say that the Tribunal’s failure to expressly refer to “the essay” in its decision record was an indication that it fialed to deal with a claim made or clearly arising.

Second, even allowing at best for the [appellant], given his apparent linking of his affiliation of the Freedom Front and “the essay” to the expulsion, that “the essay” in some unexplained way (by the [appellant]) was an expression of his political opinion, which led, in part, to his expulsion from the university. The Tribunal’s rejection of his claim that he suffered harm through the expulsion from the university, and consequently for reason of his political activities subsumes and addresses, to the extent necessary, the [appellant’s] reference to “the essay”.

4    The FCC also went on to hold that even if the matter of the essay had been overlooked by the Tribunal, it could not be said that the essay was central to the appellant’s claims. Finally, the FCC reasoned that it was open on the evidence for the Tribunal to conclude that the appellant’s claim of expulsion from the university was not credible.

5    The appellant also contended that the Tribunal’s finding at [23] of its reasons was unreasonable because, in determining that expulsion from university would be inconsistent with appellant’s level of involvement in the Freedom Front, the Tribunal did not rely on any evidence for this conclusion or give any reason for it. At [23] the Tribunal had stated:

I do not accept that the applicant was a member of the Freedom Front at university and was expelled from university in his final year, made to serve an additional three months in the military and was barred from public sector employment because of his political activities. This is a significant punishment for someone who was simply a member, was never arrested by the authorities for any political activities and who resigned from the organisation after 12-18 months. He also claimed that his expulsion was based on verbal direction, but when asked to produce a copy of his university results that could have supported such a claim he claimed that he did have a copy of the results and his mother could not access them as she was ill. The inconsistency between the punishment he claimed to have received with his actions and level of involvement in the organisation as well as the absence of any documentary evidence such as a university transcript or results to support his claim strengthens the Tribunal’s finding.

The FCC rejected that contention, reasoning as follows at [106]-[113]:

The applicant’s contention that the Tribunal did not give reasons for this finding, nor have evidence on which to base this finding, must be rejected. The Tribunal’s relevant reasoning was revealed in a sequence of findings.

It found, based on its evaluation of the applicant’s own evidence, that his claim was that he was “simply a member” of the Freedom Front. That is, that the applicant made no claim to having any higher profile in the Freedom Front.

The Tribunal found that this was inconsistent with other claims and evidence before it. The Tribunal, therefore, found that the applicant was not a member of the Freedom Front, and therefore was not expelled from the university, nor suffered other consequences as he claimed, as a result of any claimed membership.

The inconsistency was said to arise because the punishment of expulsion was a significant punishment for someone who was “simply a member”, as the applicant himself claimed. In addition to this the Tribunal found, on the applicant’s evidence, that he had never been arrested by the authorities for any political activities and, in any event, he had said that he had resigned from the Freedom Front

after 12-18 months.

The Tribunal also found that its view of the applicant’s evidence was strengthened by the absence of documentary evidence from the applicant, as to his university results. Further, when asked to produce such evidence, he said he could not produce such evidence because his mother was ill.

I did not understand the Tribunal’s reasoning to be that it could not find in the applicant’s favour because of the lack of corroborative evidence. Such a finding, of course, may lead to jurisdictional error in the manner explained in Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041.

Rather, its finding, arising from the evaluation of the applicant’s own evidence, was that his claim to have been expelled for reason of his membership of the Freedom Front was inconsistent with his other evidence as to his claimed status, the claimed duration of his membership, and his evidence that he had never been arrested for any political activities.

The short answer to this part of ground one is that the Tribunal did base its finding on evidence before it. That is, the applicant’s own evidence. While minds may differ, its evaluation of this evidence, the view it took of it, was not unreasonable. In all, ground one is not made out.

6    Finally, before the FCC the appellant also contended that the Tribunal had wrongly disregarded evidence from a pastor in a church in Australia in relation to the genuineness of the appellant’s religious beliefs as a Christian. The FCC rejected that contention, holding that the evidence was not disregarded. Rather, the Tribunal gave “little weight” to that evidence in the context of its findings about the appellant’s lack of credibility and propensity to fabricate claims.

Decision

7    The same grounds of appeal have essentially been raised on appeal. For the following reasons none of the grounds has any merit.

Ground 1:

The primary judge erred by finding that the Tribunal did not fail to consider one of the appellant’s claims, or one of the integers thereof. The trial judge ought to have found that the Tribunal failed to consider his claim to have been expelled from university by reason of his membership of a political organisation, and also because of an essay that he had written.

8    As to ground one, the primary judge was correct to conclude that it was open to the Tribunal not to accept the matter about the essay as a separate integer of the appellant’s claim. The statement concerning the appellant’s authorship of an essay was made in the course of evidence in the Tribunal. At the Tribunal hearing, the appellant was asked whether he had run into any problems at the university because of his membership of the Freedom Front. He responded that he had faced difficulty “both for [his] co-operation affiliation with them as well as for the essay that [he] prepared for the university, the title of which was “Three personalities who were influential in the past three hundred years of the history of Iran”. In answer to question as to what happened as a result he answered “expulsion from university on [his] last year of studies”. The Tribunal was not required to consider the essay as a further claim for protection merely because the appellant gave that evidence. The issue is whether that evidence should have been understood or construed by the Tribunal as another basis upon which the applicant feared persecution: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; SZSWB v Minister for Immigration and Border Protection [2014] FCAFC 106. A claim must emerge clearly from the materials: Nabe at [68], and for the reasons given by the FCC at [82]–[88], a claim that the appellant feared harm if he were to return to Iran because of his essay, or anything arising from his authorship of it, was neither expressly made nor clearly emerged from the materials.

Ground 2:

The primary judge erred by failing to find that the Tribunal committed jurisdictional error by failing to consider the appellant’s evidence as to the essay. The primary judge should have found that the failure to consider the essay involved a constructive failure by the Tribunal to exercise its jurisdiction.

9    This ground must also fail because, for the reasons given above, the Tribunal was not required to consider the claim about the essay as an integer of the appellant’s claim for protection. It follows that there was no constructive failure to exercise jurisdiction.

Ground 3:

The primary judge erred by failing to find that the Tribunal’s finding at [23] of its reasons was made without evidence or was unreasonable.

10    It was again contended that the Tribunal’s finding of inconsistency between the punishment that the appellant had claimed to have received and with his actions and level of involvement in the Freedom Front proceeded upon an unstated assumption about what is appropriate punishment for the political activities engaged in by the appellant when there was no evidence to support that assumption. For the reasons given by the FCC, there is no substance in this ground. There was no unreasonableness in the process of reasoning by which the Tribunal rejected the appellant’s claims as credible as the Tribunal’s rejection of the appellant’s claims at [23] did not depend, or rest upon, a positive factual finding for which there was no evidence. Rather, the Tribunal, having weighed all the evidence, regarded the appellant’s claims as improbable and did not accept them. For the reasons that the Tribunal gave, it was open to the Tribunal to conclude that the appellant should not be believed: NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 124 at [32]-[34]; WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 at [11]-[12].

Ground 4:

The primary judge erred by finding that the Tribunal did not commit jurisdictional error in the way in which it dealt with Rev Merchant’s evidence. The primary judge ought to have held that the Tribunal committed jurisdictional error because it wrongly held that relevant evidence was irrelevant, alternatively it failed to take into account a relevant consideration.

11    Before the Tribunal, the appellant claimed to fear harm from persecution in Iran because of his conversion to Christianity. In support of his claim, a pastor from the Gordon Baptist Church in Sydney NSW provided two letters of support and spoke on the appellant’s behalf about the genuineness of the appellant’s faith and Christian commitment. The Tribunal accepted the genuineness of the pastor’s belief that the appellant’s conversion to Christianity was real, and that the pastor had baptised the appellant in good faith. However, the Tribunal gave “little weight” to that evidence, reasoning at [28] that whilst the pastor could attest to the appellant’s attendance and activities at the church “he cannot shed light on [the appellant’s] motivations for doing so”. The Tribunal found that the appellant had approached the church, become baptised and participated in church activities in a calculated and deliberate manner in order to establish a refugee profile. Having so found, the Tribunal, in accordance with s 91R(3) of the Migration Act 1958 (Cth), disregarded the appellant’s conduct in Australia in becoming baptised and attending church in finding that the appellant does not have a well-founded fear of persecution in Iran on the basis of his real or imputed religion.

12    Before the FCC, the appellant argued that the Tribunal fell into legal error in holding that the pastor could not give evidence about the appellant’s “motivations”. The FCC rejected that contention, in my view correctly. At [134]-[137], the FCC stated:

In my view, it cannot be said, on a fair reading, that the Tribunal approached this question from the starting point that Reverend Merchant, or anyone in his position, could never assist in the understanding of what was in this applicant’s, or even generally any applicant’s, mind in engaging in the impugned conduct.

Rather, the Tribunal’s analysis was that the applicant’s evidence, including his evidence relating to his religious activities and belief before coming to Australia, lacked credibility … It gave reasons and made findings reasonably open to it to explain this conclusion … It found that the applicant had had no interest in Christianity in Iran. The applicant does not now attack this finding, nor say it was not reasonably open for the Tribunal to make. Further, the Tribunal found that he had “fabricated his interaction with … various clergy” in other countries …

…

In essence, while the Tribunal accepted Reverend Merchant’s evidence that the applicant had attended the Gordon Church and participated in certain activities, it could not give more than “little weight” to all his evidence, in light of the applicant’s propensity to fabricate claims, and put forward claims and evidence lacking credibility. In this light, a fair reading of the Tribunal’s analysis is that, in all the circumstances, Reverend Merchant could not “shed light” on the [appellant’s] motivations in the totality of the conduct claimed. This was claimed conduct that the Tribunal otherwise rejected for other reasons.

I agree with the FCC. The appellant’s argument has misstated the Tribunal’s reasoning at [28]. This was not a case of the Tribunal ignoring relevant evidence, but of the Tribunal attributing little or no weight to such evidence in the context where the Tribunal had not accepted that the appellant was truthful in his claims. The onus was on the appellant to satisfy the Tribunal that he did not become baptised and attend church services in Australia solely to strengthen his claim to be a refugee. The Tribunal found that the appellant was not a reliable, credible or truthful witness and rejected the appellant’s evidence about his claimed earlier interest in Christianity whilst in Iran, which the Tribunal found was implausible. The task of determining how much weight to attribute to the pastor’s evidence was a matter for the Tribunal and no legal error is demonstrated.

conclusion

13    The appeal should be dismissed.

Associate:

Dated:    27 March 2015