SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 59 (9 February 2006)

Last Updated: 9 February 2006

FEDERAL COURT OF AUSTRALIA

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 59

MIGRATION - whether implausibility reasoning perverse – whether procedural fairness requires disclosure by Tribunal of provisional views on matters of assumption



Migration Act 1958 (Cth) ss 36(2), 91R(3)

Attorney-General for the State of New South Wales v Quin [1990] HCA 21; (1990) 170 CLR 1
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576





















SZBEL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR

NSD 379/2005

GRAHAM J

9 FEBRUARY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY		NSD 379 OF 2005
BETWEEN:	SZBEL APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	GRAHAM J
DATE OF ORDER:	9 FEBRUARY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The Appellant pay the First Respondent’s costs.










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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY		NSD 379 OF 2005
BETWEEN:	SZBEL APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	GRAHAM J
DATE:	9 FEBRUARY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This matter concerns an Iranian seaman who "jumped ship" on 7 April 2001 when the vessel on which he was serving was in Port Kembla. Since leaving his ship he has become baptized as a Christian whilst living in Australia. He contends that his Christian journey commenced before that and that his interest in Christianity which preceded his conversion from the Islamic faith provided a basis for his claim, since his arrival here, of refugee status.

2 His application for a Protection (Class XA) Visa was rejected by the Minister’s Delegate. His subsequent application for review of that decision was rejected by the Refugee Review Tribunal ("the Tribunal") and his application for review of the Tribunal’s decision was dismissed in the Federal Magistrates Court of Australia on 23 February 2005.

3 The current appeal from the decision of the Federal Magistrate raises the question of whether the Tribunal committed reviewable error. The Respondent Minister submits that the Appellant is in truth seeking no more than a merits review and that no ground has been made out warranting the issue of constitutional writs.

4 The Appellant does not seek to rely on his conversion and baptism to justify his claimed refugee status, nor does he rely upon the reasons for his departure from Iran to justify that status. The Appellant simply relies on his reasons for jumping ship at Port Kembla.

5 He contends that his interest in Christianity, which predated his departure from Iran, had become known to some fellow seamen on his ship, that the Captain had become aware of that interest and that the Captain had threatened to turn him in to the authorities upon the ship’s return to Iran, it being suggested that he would then be interrogated and dealt with for committing apostasy.

6 The Tribunal had before it, and referred in its reasons for its decision, to country information concerning Iran. This information suggested that if Iranians of Islamic faith abandoned that faith in favour of Christianity they would be put to death. That information, derived from the UK Home Office, Country Assessment – Iran, Country Information and Policy Unit, October 2002 ("UK Home Office Country Assessment for Iran"), included the following:-

"Christians
5.49 According to the Iranian government, in 1997 there were between 117,000 and 200,000 Christians in Iran, although the UN Special Representative (UNSR) used the figure of 300,000 in a 2001 report ... They are concentrated mainly in urban areas, and are legally permitted to practice their religion and instruct their children, but may not proselytise Muslims. ... The authorities have become particularly vigilant in recent years in curbing what is perceived as increasing proselytising activities by evangelical Christians, whose services are conducted in Persian. Conversion of a Muslim to a non-Muslim religion can be considered apostasy.

5.50 Government officials have reacted to this perceived activity by closing evangelical churches and arresting converts. Members of evangelical congregations are required to carry membership cards, photocopies of which must be provided to the authorities. Worshippers are subject to identity checks by authorities posted outside congregation centres. Meetings for evangelical services have been restricted by the authorities to Sundays, and church officials have been ordered to inform the Ministry for Information and Islamic Guidance before admitting new members to their congregations ...

5.51 There were reports of eight deaths of evangelical Christians at the hands of the authorities in the past 10 years ...

5.52 ... Christian groups have reported instances of government harassment of church goers in Tehran, in particular against worshippers at the Assembly of God congregation in the capital. Instances of harassment cited included conspicuous monitoring outside Christian premises by Revolutionary Guards to discourage Muslims or converts from entering church premises and demands for presentation of identity papers.

...

Apostasy
5.54 As stated above, proselytising Christian churches, especially Evangelicals, are likely to be regarded more suspiciously by the Iranian authorities. ... Apostasy, or conversion from Islam to another religion, is not acceptable in Islamic law. ... An innate-apostate (one whose parents were Muslims and who embraced Islam but later left Islam), if a man, is to be executed. ... The most prominent cases of apostasy appear to occur from Islam to Christianity. Proselytising apostates (converts who have begun preaching Christianity) are likely to face execution. 17 clerics are known to have been in detention in 1995 ..."

7 In addition to the UK Home Office Country Assessment for Iran, the Tribunal had before it the Department of Foreign Affairs and Trade ("DFAT"), Country Profile for Use in Refugee Determination: Islamic Republic of Iran, Refugees, Immigration and Asylum Section, March 1996 ("DFAT Country Profile") which included the following:

"1.7.7.8

... Apostasy is widely reported as carrying a nominal death sentence. However, there are only one or two cases (high profile Christian clergy) where this sentence has ever been imposed. Moreover, some senior and influential clerics have recently publicly questioned such an interpretation of Koranic law. The evidence is that those converts who go about their devotions quietly are generally not disturbed ..."

8 The Tribunal also had before it the DFAT Country Profile, to which it referred in its reasons for decision, which suggested that seamen serving on Iranian ships with an adverse political profile, who may have slipped through the vetting process undertaken by the Iranian security authorities, would be placed in custody on board if considered to be a political or security threat because of their "... persistent statements, declarations and subversive activities, ...". The country information included the following:-

"1.7.10.4 Anyone working on shipboard would have been well vetted and cleared by the security authorities in advance and by definition would not have any sort of adverse political profile. But, if a seaman were to manage to establish himself on shipboard such an adverse political profile, through persistent statements, declarations, and subversive activities, as would be considered a potential political or security threat, he would inevitably be arrested and confined on board pending return to Iran. It would be very difficult for anyone to jump ship while in detention. An individual not so detained would by definition be deemed not to be a serious political or security threat and on return to Iran, at most would suffer a bout of questioning, possibly a short period in detention or a fine, and more than likely, nothing beyond dismissal or confinement to shore duties. A person taken into detention on board would face, on return to Iran, more intense interrogation, a longer period of detention and almost certain dismissal. While there is no Soviet-style cadre system in operation on board, there are informal networks and cooperation among security personnel and active supporters of the government, who would take a lead in public prayers and various activities associated with good Islamic revolutionary practice."

9 The Tribunal was not prepared to accept that if the captain of an Iranian vessel was minded to turn an Iranian seaman over to the authorities to be dealt with for apostasy upon the ship’s return to Iran, he would refrain from placing the seaman in custody when in port in a foreign country such as Australia. The Appellant submits that such a view was not available to the Tribunal in the face of the country information to which reference has been made.

10 This of course would depend upon whether the country information concerning the likely behaviour of Iranian ship captains comprehensively recorded how they would be expected to behave in every circumstance and whether it was open to the Tribunal to find that a seaman who was flirting with Christianity could be said to be engaged in subversive activity and to be a political or security threat.

11 The ultimate question for the Tribunal under s 36(2) of the Migration Act 1958 (Cth) ("the Act") was whether the Appellant, owing to a well-founded fear of being persecuted for reasons of religion, was outside Iran and was unwilling to avail himself of the protection of Iran. He says that in the circumstances of this case the critical time was when he chose to jump ship in Port Kembla.

12 The Tribunal was not prepared to decide the question in the Appellant’s favour.

13 At the hearing before the Tribunal on 25 February 2003 the Tribunal made it abundantly clear to the Appellant that a criterion for the grant of a protection visa was that the Tribunal had to be satisfied that he was outside Iran because he had a well-founded fear of being persecuted and was unwilling to avail himself of the protection of Iran. The Member constituting the Tribunal said to the Appellant:-

"Persecution is things such as a threat to your life and a threat to your liberty. Such things as minor discrimination or minor harassment don’t qualify as persecution. The tribunal needs to be satisfied that you have a well-founded fear, it’s persecution you fear and it’s for a convention reason. The convention reason is ... for reasons of either your race, your religion, your nationality, your membership of a particular social group or your political opinion. In addition to being satisfied that [you] have this well-founded fear, this persecution to fear and it’s for a convention reason, the tribunal also needs to be satisfied that you can’t avail yourself of protection in your own country. ..."

14 The Appellant was born in Masouleh, Iran on 25 August 1966 and was brought up as a member of a Muslim family. In 1989, he secured employment with a shipping company based in Bandar Anzali (the port of Anzali), Iran. From that date, the Appellant’s employment was with various shipping lines. Relevantly, his ship in 2001 was one flying the Iranian flag.

15 According to the Appellant, he was introduced to Christianity in Dubai in 1996 by a friend from the Philippines with whom he worked. The friend took him to a Christian church service, which he says began his interest in the Christian faith.

16 The Appellant claims that over the next four years his interest in Christianity grew, although he still considered himself to be a Muslim. He says that he was aware that if he converted to Christianity he could be tried by the Iranian authorities as an apostate, but this did not stop him from attending Christian churches in the countries where the ship on which he was serving docked. He says that he endeavoured to keep his interest to himself.

17 In December 2000, whilst the Appellant’s ship was docked in Argentina he says that he attended a local Christian church service. Upon leaving this church, the Appellant claims that he was seen by three Iranian crew members off the ship on which he was working. Those crew members confronted him and demanded to know why he had been at the church. They did not accept his explanation and demanded that he walk back to the ship with them, whereupon he says that he was ordered to go to the senior Iranian officer’s cabin. According to the Appellant, three officers were present and the senior officer was very angry with him but nevertheless allowed him off with a warning.

18 When the Appellant returned to Iran in February 2001 he was given time off work for medical reasons, after which he went back to his home town for a brief period of time. During this visit, he met four of his Muslim friends, who were neither devout nor fanatical, and told them what he had learned about the Christian faith. They indicated that they were disturbed by what the Appellant had to say. Shortly after that meeting, the Appellant claims that he received a threatening phone call where the caller accused him of being "... a dirty Christian." and said "You’re not worth it to live in this country-city. You make this city dirty, unclean. You are an apostate". Other like phone calls are said to have followed.

19 The Appellant returned to his ship and was "keen to leave Iran" because he did not feel safe, but hoped that matters would settle down in the ensuing months.

20 A couple of weeks after the departure of his ship from Bandar Abbas (the port of Abbas) on about 11 March 2001 the Appellant claims that the Captain was informed of the ostracism he experienced in his home town whereupon the Captain demanded to know whether rumours about the Appellant were true and whether the Appellant was a Christian. Although the Appellant denied that he was a Christian, the Appellant says that the Captain did not believe him and apparently told him that as soon as the ship returned to Iran he would be " dealt with accordingly". The Appellant says that this made him very scared and caused him to fear that he would face persecution upon his return to Iran and that he would be turned over to the Kharoset (Iranian Security Officers). He was also greatly concerned by the attitude towards him of the other crew members and feared that he would "be dead" by the time the ship returned to Iran. In these circumstances the Appellant says that he decided to "jump ship" as soon as possible.

21 When his ship was in port at Port Kembla the Appellant says that he made his escape at about 2 – 3 a.m. on 7 April 2001. He says that he did so with the help of a friend who distracted the patrolling officer while he escaped.

22 The Appellant proceeded to apply for a Protection (Class XA) Visa on 17 April 2001. This application for a protection visa was refused by a delegate of the Minister on 29 May 2001.

23 The Appellant then applied for review of the Minister’s delegate’s decision in an application to the Tribunal, which was filed on 5 June 2001. When invited to do so, the Appellant indicated that he would like to attend the hearing before the Tribunal and also that he would be providing witnesses to give evidence on his behalf, as he later did. On 24 February 2003, the day before the Tribunal hearing, the Appellant’s representatives, Farnam Immigration and Language Services, caused to be faxed to the Tribunal various documents to support the Appellant’s case, including a further (unsworn) statutory declaration of the Appellant and a certificate of Baptism dated 21 October 2001. On 24 July 2003, the Tribunal handed down its reasons affirming the decision of the Minister’s delegate not to grant the Appellant a protection visa. The Appellant then applied, unsuccessfully, for a review of the Tribunal’s decision to the Federal Magistrates Court of Australia and on 14 March 2005 appealed to this Court from that decision.

24 After dealing with the background to the Appellant’s application for a protection visa and referring to the relevant legislation and evidence in the matter, the Tribunal set out its Findings and Reasons and concluded that :-

"Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the Applicant does not satisfy the criterion set out in s 36(2) of the Act for a protection visa."

25 In the section headed "FINDINGS AND REASONS", the Tribunal accepted that the Appellant had deserted his ship when it docked at Port Kembla. However, the Tribunal did not accept that:-

"the Applicant jumped ship because he faced harm from the authorities of Iran because of his claimed interest and involvement in Christianity."

It did not consider the claim to be "credible".

26 The Tribunal considered that key aspects of the Appellant’s claim lacked credibility in the following ways:-

"The Tribunal considers the Applicant’s account of the basis upon which the Captain came to believe that the Applicant was involved in Christianity to be so tenuous as to be implausible. The Applicant makes no claims as to having been accused of any Christian activities while on board ship such as reading the Bible but states ... that ‘I had kept to myself, and hadn’t said a word about Christianity’. Rather the Applicant claims that while visiting his home town he meet up (sic) with some friends and spoke to them with enthusiasm about Christianity. The Applicant claims that on the strength of this personal conversation among his friends when at home for ten days his interest in Christianity became public knowledge such that a fellow crew member on the ship knew of the Applicant’s Christian leanings and informed the Captain.

The Tribunal considers it implausible that a personal conversation while the Applicant is in port for ten days would attract the attention or interest of the Hezbollah and would become public knowledge such that a crew member from the same town had knowledge of it.

Further the Tribunal considers it implausible that the Captain of the ship would accuse the Applicant of apostasy or even involvement in Christianity on the strength of comments from a crew member based on the Applicant’s personal conversations when in port, particularly given that the Applicant on his own evidence had not spoken of or engaged in Christian activities on board the ship.

The Tribunal considers that the Applicant’s freedom of movement when the ship was in dock belies the Applicant’s claim that the crew ‘considered me a criminal’ ... and the claim as stated in the hearing that the Captain was intending to hand him to the authorities when the ship returned to Iran.

The Tribunal notes that the Applicant was granted permission to leave the ship in Port Kembla for the purpose of gaining medical attention and that the Applicant reboarded the ship and then deserted the ship at night with the aid of a crew member. The Tribunal considers that if the Captain was intending to hand the Applicant over to the authorities in Iran and had informed the Applicant of his intention then more stringent measures would have been set in place in respect to the Applicant’s movement when the ship was in dock.

Considered collectively, these points outlined above lead the Tribunal to reject the Applicant’s claim that the Captain of the ship was intending to hand the Applicant over to the authorities of Iran on the ships’ (sic) return to Iran because of the Applicant’s religious inclinations."

27 The Tribunal then went on to conclude that, as it found the Appellant to be not credible in regard to the circumstances that led him to jump ship and enter Australia illegally, it was not satisfied under s 91R(3) of the Act that the Appellant’s baptism and involvement in Christian activities since arriving in Australia had been for any purpose other than the strengthening of his claim for refugee status.

28 Furthermore, the Tribunal was not satisfied that the Appellant faced a real chance of persecution for a Convention reason on his return to Iran.

29 The Appellant’s Notice of Appeal sets out four grounds of appeal. Ground one contends that the Federal Magistrate erred when he failed to hold that the Tribunal had committed jurisdictional error in making findings based on implausibility considerations which it was said were not open on the material before it. Ground two is expressed in the alternative, that the Tribunal made findings for which there was no evidence. The third ground contends that the Tribunal committed jurisdictional error by failing to have regard to certain evidence relevant to the Appellant’s credit. The fourth ground relied upon is that the Tribunal denied the Appellant natural justice by failing to put to him critical factors on which its decision was likely to turn.

30 The Respondents submitted that regardless of the manner in which the Appellant dressed up his argument, he was in effect seeking a merits review of the Tribunal’s decision, which of course was not open on an application for judicial review.

31 The duty and jurisdiction of the Court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the Court avoids administrative injustice or error, so be it; but the Court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power, and, subject to political control, for the repository alone. The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. (per Brennan J, as he then was, in Attorney-General for the State of New South Wales v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35-6.)

GROUNDS ONE AND TWO

32 The Appellant argues that the consideration by the Tribunal that certain of his claims were implausible was not a view open to it in light of the available country information. Counsel for the Appellant submitted that the country information set out above, provided clear evidence that ship captains act in exactly the manner in which the Captain of the Appellant’s vessel did when faced with someone who behaved as the Captain believed the Appellant had. In the light of this evidence, it was submitted that the implausibility reasoning was perverse.

33 The Appellant does not cavil with the notion that the Tribunal is perfectly entitled to say that it thinks someone is lying or is not worthy of credit. Rather, issue is taken with the conclusion that certain aspects of the Appellant’s claims were implausible when it was said that there was independent evidence to support his story.

34 Findings on credibility are the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence (per McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at 423).

35 As in Durairajasingham the reason for the Tribunal’s disbelief of the Appellant in this case was apparent from the Tribunal’s use of the word "implausible". The disbelief arose from the Tribunal’s view that it was inherently unlikely that the Captain had expressed a concern which might have led to the Appellant having a well-founded fear of persecution for reasons of religion if he were to stay on the ship.

36 This begs the question, as indicated earlier, as to whether the country information concerning the likely behaviour of Iranian ship captains comprehensively recorded how they would be expected to behave in every circumstance and whether it was open to the Tribunal to construe the possibility that a seaman flirting with Christianity might be considered to be a political or security threat by engaging in subversive activities.

37 It seems to me that it was open to the Tribunal to construe a captain’s perceived concern over a crew member’s apparent interest in Christianity as providing a justification for the crew member being placed in custody when the ship was in a foreign port; either on the basis that pursuit of that interest constituted participation in a subversive activity which rendered him a political or security threat, or that his conduct was so offensive to the State as to warrant his delivery up to the authorities in Iran upon the ship’s return to Iran to be "dealt with accordingly", even if he was not considered to be a political or security threat.

38 The country information did not, in my opinion, preclude the Tribunal from rejecting the Appellant’s case that his Captain had such a concern and, accordingly, that he had a well founded fear of persecution, in circumstances where his movements were not relevantly restricted whilst in port in Port Kembla.

39 It was open to the Tribunal to find that the freedom of movement afforded to the Appellant when his ship was in Port Kembla was inconsistent with a well-founded fear of being persecuted for reasons of religion.

GROUND THREE

40 The Appellant argues under this ground of appeal that the Tribunal failed to have regard to relevant evidence in determining his credit. The evidence was said to be constituted by the DFAT Country Profile and the evidence of three independent witnesses who gave evidence on the Appellant’s behalf at the Tribunal hearing.

41 It is plain from a reading of the Tribunal’s reasons that it had regard to both the DFAT Country Profile and also the evidence of the witnesses who spoke of the Appellant’s conversion to Christianity in Australia and of his awareness of Christianity when they first had contact with him in Australia.

42 The Tribunal did not find that the Appellant had no interest and involvement in Christianity prior to his arrival in Australia. What it did not accept was that the Appellant was considered by the Iranian authorities to be an apostate or actively involved in Christianity prior to his arrival in Australia. This finding was not challenged by the Appellant.

43 The Tribunal did not accept that the Appellant jumped ship because he faced harm from the authorities of Iran because of his claimed interest and involvement in Christianity at that time. This view was open to the Tribunal.

GROUND FOUR

44 The Appellant alleges that he was denied natural justice in so far as the Tribunal failed to put to him the critical factors upon which its decision was likely to turn. It is suggested that the Tribunal was obliged to put the assumptions on which it was to make its decision to the Appellant in order for him to be able to comment on those assumptions and perhaps provide additional evidence in light of those assumptions. Counsel for the Appellant submitted that he was entitled to respond to any adverse conclusion drawn by the decision-maker which was not a natural and obvious evaluation of the evidence and that failure to do so would result in a lack of procedural fairness.

45 The proceeding before the Tribunal was inquisitorial, not adversarial. A decision-maker such as the Tribunal was obliged to advise a person such as the Appellant of any adverse conclusion which would not obviously be open on the known material. However, such a decision-maker would not be otherwise obliged to expose his or her mental processes or provisional views to comment before making the decision in question (per Northrop, Miles and French JJ in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576 at 592).

46 The Tribunal did not have to articulate the reasoning processes by which it came to the conclusion that it reached about the Appellant’s claimed reasons for jumping ship in this case. Its rejection of the Appellant’s claim was obviously open on the known material.

CONCLUSION

47 I am unable to discern any jurisdictional error on the part of the Tribunal along the lines advanced by the Appellant or at all. Accordingly, the appeal should be dismissed with costs.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated: 9 February 2006

Counsel for the Applicant:	R Francois
Solicitor for the Applicant:	S O’Connor, Legal Aid Commission of New South Wales
Counsel for the Respondent:	S B Lloyd
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	29 September 2005
Date of Judgment:	9 February 2006