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Federal Court of Australia |
Last Updated: 25 February 2008
FEDERAL COURT OF AUSTRALIA
SZCXF v Minister for Immigration and Citizenship [2008] FCA 123
Migration Act 1958
(Cth) ss 422B and 425
SZCXF v
Minister for Immigration and Citizenship [2007] FMCA 1229
affirmed
SZBEL v Minister for Immigration (2006) 228 CLR 152 referred
to
SZCXF
v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW
TRIBUNAL
NSD 1601 OF 2007
TAMBERLIN J
20
FEBRUARY 2008
SYDNEY
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AND:
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THE COURT ORDERS THAT:
The appeal be dismissed with
costs.
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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BETWEEN:
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SZCXF
Appellant |
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AND:
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MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent |
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JUDGE:
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TAMBERLIN J
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DATE:
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20 FEBRUARY 2008
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
BACKGROUND
1 This is an appeal from a decision of a Federal Magistrate dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal"), which in turn dismissed an application for review of a decision of a delegate of the first respondent ("the Minister") refusing to grant the appellant a protection visa under the Migration Act 1958 (Cth) ("the Act").
2 The background to this matter is set out in the reasons of the Federal Magistrate: see SZCXF v Minister for Immigration and Citizenship [2007] FMCA 1229 at [1]- [4]. In summary, I repeat those circumstances below.
3 The appellant is an Iranian citizen who first arrived in Australia in November 1998. Shortly after his arrival on a business trip he met and married a woman, who was an Australian citizen of Iranian background. She sponsored him for a Subclass 820 visa. The marriage foundered after the appellant allegedly discovered his wife had been unfaithful and, unknown to him, had been married three times previously. The appellant left the matrimonial home with only a few possessions and returned to Iran. Whilst in Iran he had the experiences which are the subject matter of his claim to be a person to whom Australia has protection obligations. On 13 August 2001, he returned to Australia and made an application for a protection visa on 21 September 2001. The application was refused by the delegate of the Minister, and the Tribunal affirmed that decision on 27 January 2004. On review, the Federal Magistrates Court set aside the decision and remitted the matter to the Tribunal to be determined according to law. On 12 September 2006, the Tribunal again affirmed the decision under review and handed that decision down on 5 October 2006.
4 The appellant says that his divorce from his former wife was handled appropriately and that she was given a sum of money which he understood was accepted as satisfactory. However, upon his return to Iran he was approached by her brothers, who indicated that the family was not happy with the arrangement and demanded further payment from him. When that was refused he was hit and they warned him that this was just the beginning. In relation to this period of time, the Tribunal stated:
‘One afternoon as he was returning home from work he was stopped on the street near his home. Two men who identified themselves as being from the disciplinary forces demanded that he follow them to the local disciplinary forces’ centre. [His former wife’s] brothers had told the disciplinary forces that he was a political dissident and a proselytizer. She also wrote to the Iranian Embassy in Canberra and the disciplinary forces in Tehran saying that he had been involved in evangelical Christian practice in Australia. He did have some contact with Christians while in Australia. Whilst he was married to [his former wife] he attended a few church services with his friends. However he was not a Christian and still followed the Muslim faith. He knew that the accusations were serious. While detained he was interrogated about his business trips. He was asked about his link with some anti-Islamic groups. His denials were not believed. He was hit and called a deviant. He was told he should be careful and would be monitored. He was warned he would be severely punished if he stepped out of line. He did not know how he could prove to the authorities that he was not a Christian when they were convinced that the opposite was true. His business trips were increasingly monitored by the disciplinary forces. He was under suspicion and was constantly harassed by telephone calls from the security forces throughout the night. He was disturbed and disorientated and it became almost impossible to sleep.’
5 The appellant maintained that although he was not detained again until 2001 he was kept under constant surveillance, particularly in relation to his business trips. These trips were taken at the behest of a Bonyad (a powerful Iranian business organisation), one of whose employees he had paid off in order to obtain business from it. After the appellant returned from a business trip to Sweden in February 2001 he was arrested again. He claimed that he was beaten up during the course of his interrogation and was released because of the injuries that he suffered. The appellant stated that during his interrogation he saw a letter that had been written to the authorities in the handwriting of his former wife. He also claimed that he was being interrogated about certain photographs that had been taken by and of him in and around churches in Italy and Australia. He claimed that these had been provided to the authorities by his former wife. He claimed that those photographs were used to corroborate the statements made by his former wife and her brothers that he was a proselytizer. The appellant also claimed before the Tribunal that he was arrested on a third occasion, on which he was not asked about religious or political matters, but had been told to write his life story so that the authorities could verify it.
6 In its reasons, the Tribunal accepted that the appellant often travelled abroad for business purposes. It accepted that the appellant had been involved in corrupt activity with an employee of the Bonyad, which might lead him to face penalties if discovered. The Tribunal accepted that the appellant had been questioned by authorities after returning to Iran in 1999, that he was questioned again and possibly ill-treated in 2001. It stated that he may have subsequently faced charges, had the deeds to his home held as security and had access to his bank accounts denied.
7 The substance of the Tribunal’s reasons and findings are as follows:
‘[The appellant] has claimed that he faces persecution in Iran for two reasons set out in the Convention, being religion and political opinion. As to whether I am satisfied that these are the reasons he had these problems, and that they are the essential and significant reasons for any harm he may face, I have considered the following:
He claims that the source of the allegations about him is his first wife in Australia, a woman of Iranian background from whom he is divorced. In my view there are a number of reasons why, without more compelling evidence against him, it is highly unlikely that the Iranian authorities would have treated assertions made by [the appellant’s] ex-wife or her relatives as reliable.
The first is that Iran’s laws favour men. Among other examples of discrimination is evidenced [sic] that a woman’s testimony in court is worth half that of a man (2005, Iran: Human rights annual report 2005, U.K. Foreign and Commonwealth Office, July, CX147293). Further, [the appellant] told the first Tribunal that he separated from his wife because he discovered her in an act of adultery. I note evidence that in Iran the law allows a man to kill his wife under precisely these circumstances (DFAT 1996), evidence which reflects a very harsh view taken of women’s rights over those of men. For these reasons alone it seems extraordinary that, if he believed his ex-wife to be the source of allegations against him, he would not have emphasised to his interrogators her "poor character" as an obvious means of undermining her allegations. It is unclear, given that the evidence indicates that she would almost certainly have been regarded by those interrogators as a woman of poor character, why he did not expect to be believed.
However a second reason why the Iranian authorities would likely favour his denials over her assertions relates to his ex-wife’s history. [The appellant] has submitted evidence to this Tribunal that her previous husband was also the victim of unfounded allegations made by her to the Iranian authorities, and indeed that that man visited the Iranian Embassy in Canberra in order to clear his own name. [The appellant] does not claim to have brought this to the attention of his interrogators at any stage, despite ... having a copy of his ex-wife’s first husband’s letter, which contained the allegations, in his possession before he returned to Iran. In other words, he has failed to take an obvious opportunity to undermine her credibility.
Thirdly, although later in the hearing before the present Tribunal he claimed that his family had "always" had problems because of his brother’s link with the previous regime, he initially gave clear evidence, which I accept, that he himself had no interest in politics and, most relevantly, had not had any problems of a political nature with the Iranian authorities before 2001. As the former claim was made belatedly and without any detail, I am satisfied that the latter is accurate and that [the appellant] had an entirely clean and respectable political record until the problems he claims arose from his ex-wife’s allegations.
Taking all these factors into account, the fact that [the appellant] did not take the obvious steps to undermine his ex-wife’s credibility casts doubt on his claim that she made allegations against him. It is highly implausible that the authorities might have taken allegations made about [the appellant’s] activities abroad seriously.
[The appellant] has claimed that the reason the allegations about his converting Muslims to Christianity was given credence was that his ex-wife provided the authorities with photographs of him which linked him with Christianity. If credible evidence had been provided to them that he was involved in proselytising activities, or had converted to Christianity, I am satisfied that that might be sufficient to give his ex-wife’s allegations greater credibility than the otherwise would have been given. However for several reasons I consider the whole claim on this issue implausible. [The appellant] has not explained how he could have known that his ex-wife did give photographs to the Iranian authorities, or how he could have known which particular photographs she might have provided. It is also difficult to believe that he would not have found a way of retrieving his belongings, including photographs, from their shared home after their separation. In any case, I am not satisfied that photographs of Christian churches, whether he was in them or not, would be regarded as of such significance to the Iranian authorities that, having been provided with them by an ex-spouse with a history of making unfounded allegations, they would give credence to them. Apostates (converts from Islam) and evangelical Christians have been harassed and arrested in Iran (see 2005, Iran: Christians in Iran, Swiss Refugee Council, 18 October) – these are clearly individuals who would self-identify as Christian if questioned by the authorities. In contrast, [the appellant] gave evidence that he considers himself to be a Muslim and does not intend to convert to Christianity. I am satisfied that that is so, and that it is what he would have told the authorities if he had been questioned about religious matters. He also gave evidence that there are Christian churches in Iran, and I am satisfied that that is so and that Christians are one of the recognised minorities in Iran. They are not persecuted as a group. On the basis of his evidence I am satisfied that nothing about the photographs he described would have indicated to the Iranian authorities that he was an apostate or an evangelical Christian. Therefore his explanation as to why those authorities took his ex-wife’s allegations seriously is highly unconvincing.’
8 For these and other reasons, the Tribunal concluded that:
‘His willingness to re-enter Iran on four occasions is so inconsistent with the fear he initially claimed to have that, while he may have been questioned about some other matter, I do not believe that he considered himself to be of any adverse interest to the Iranian authorities for political or religious reasons before his return to Iran from Sweden in February 2001.’
DECISION BELOW
9 The Federal Magistrate dismissed the appellant’s application for review. In particular, the Federal Magistrate rejected the three grounds of review advanced by the appellant, concluding in relation to each ground that the Tribunal did not fall into jurisdictional error.
10 First, the Federal Magistrate considered whether the Tribunal failed to take into account certain information put before it by the appellant concerning the role which his former wife’s brothers played in the treatment and detention by Iranian authorities to which he says he was subjected. On this point the Federal Magistrate, after a comprehensive review of all the occasions on which the Tribunal’s reasons referred to or considered the brothers of the appellant’s former wife, concluded at [8] that the Tribunal did not overlook or ignore this matter.
11 Secondly, the Federal Magistrate rejected the appellant’s submission that some of the Tribunal’s findings were made without any evidentiary basis. In relation to the appellant’s submission that the Tribunal found, on the basis of no evidence, that the unreliability of the appellant’s former wife’s evidence would necessarily mean that her brother’s evidence would not be accepted by Iranian authorities, the Federal Magistrate found at [10] that the Tribunal did not in fact make that finding. Rather, the Tribunal found that it was not clear why the appellant did not disclose that the allegations against him were brought by his former wife. Accordingly, the Federal Magistrate did not accept that the Tribunal went beyond the evidence before it in order to make findings that were not open to it.
12 In relation to the final ground of review, the Federal Magistrate concluded at [12]-[13] that the Tribunal did not fail to inform the appellant of certain matters that would be relevant to its reasoning, namely, how he knew his former wife provided photographs to the Iranian authorities and why he did not retrieve his belongings from the marital home when he left it. The Federal Magistrate concluded that the latter matter was raised with the appellant by the Tribunal, and that there were no circumstances in this case which entitled the appellant to assume that the way in which photographs were allegedly provided to Iranian authorities "was not a matter in issue, particularly when the delegate had made such a firm finding about the [appellant’s] story".
REASONS ON APPEAL
13 On appeal to this Court, the appellant pleaded numerous grounds on which he says the Tribunal and the Federal Magistrate erred. The appellant presented pleadings in the form of written submissions filed 25 October 2007, oral submissions at the hearing on 8 November 2007 and additional materials posted to the Court and received on 13 November 2007.
14 Although the appellant did not have leave to file the additional material of 13 November 2007, I have considered all his submissions and material and, for the reasons below, am not satisfied that the reasons of either the Tribunal or the Federal Magistrate disclose any error.
15 Several of the appellant’s grounds of appeal (grounds 1, 2, 4, 5, 6, 14 and 15 in the Notice of Appeal) assert that the Tribunal and Federal Magistrate erred when considering photographs of Christian churches or cathedrals which the appellant took, or in which he was pictured. The appellant submits that the Tribunal reached incorrect conclusions as to his former wife’s involvement in the supply of these photographs to Iranian authorities; the adverse perception those authorities would form about him upon receipt of the photographs; the religious persecution from which he would suffer as a result; and his ability to ascertain which (if any) photographs might have been supplied to the Iranian authorities. Although the appellant demonstrated that the Tribunal consistently found against him on this issue, I am not satisfied that the Tribunal did not have regard to his evidence. Rather, the Tribunal simply did not accept it, and consequently the appellant’s submissions constitute an impermissible request for merits review.
16 This conclusion is unsurprising, given that the Tribunal addressed both the evidence put forward by the appellant and other independent country information, before concluding that it was:
‘... not satisfied that photographs of Christian churches, whether [the appellant] was in them or not, would be regarded as of such significance to the Iranian authorities that, having been provided with them by an ex-spouse with a history of making unfounded allegations, they would give credence to them.’
In my view, the Tribunal did not fail to inform the appellant of the importance it accorded to the photographs, nor did it prevent him from making submissions on the issue, and the conclusions it formed were open to it on the evidence. Accordingly, I am not satisfied that the appellant’s submissions identify any error of law in the Tribunal’s reasons on this point.
17 A further three grounds of appeal (grounds 7, 9 and 10) assert that the Tribunal and Federal Magistrate erred when considering the ways in which the appellant’s former wife might bring him to the attention of Iranian authorities and thereby increase the likelihood of his persecution. The appellant submits that the Federal Magistrate erred in deciding that the Tribunal had properly concluded that the evidence of the appellant’s former wife would not be treated as reliable in Iran because it was the evidence of a woman, and that any attempt by the former wife to convey this evidence to the authorities via her brothers would be unsuccessful. The appellant also challenged the Tribunal’s finding that he did not know the names of his former wife’s brothers, whom he alleges would convey her evidence to the Iranian authorities. Again, the appellant’s submissions on these points do not seek to establish an error in the Tribunal’s reasons. The submissions challenge the ultimate findings of fact of the Tribunal, which cannot be the subject of review by this Court.
18 Accordingly, in my view, the Federal Magistrate was correct to find that the Tribunal had not erred in law when makings its findings on this point. Having reviewed both the submissions of the appellant, and having referred to the independent country information about the role of women in Iranian law, the Tribunal concluded that:
‘...there are a number of reasons why, without more compelling evidence against him, it is highly unlikely that the Iranian authorities would have treated assertions made by [the appellant’s] ex-wife or her relatives as reliable.’
19 These grounds of appeal must therefore be rejected.
20 Two grounds of appeal for the appellant (grounds 8 and 12) assert that the Tribunal erred in concluding that his failure to bring his former wife’s lack of credibility to the attention of Iranian interrogators indicated that his fear of persecution was not well-founded. On this point, the Tribunal found that it was "extraordinary" that the appellant would not emphasise his former wife’s "poor character" and take other "obvious" opportunities to undermine her credibility and therefore protect himself from persecution for religious or political dissidence alleged against him by her. I am of the view that this finding was open to the Tribunal on the evidence before it, and that it reached its conclusions according to law. The appellant was aware before the Tribunal of the importance of his former wife’s allegations, and was able to and in fact did make submissions on the point. There is consequently no basis for judicial review of these findings.
21 Another ground of appeal (ground 11) for the appellant objects to a rhetorical question posed by the Federal Magistrate, namely, "What evidence could the brothers have given of this activity when they were not with the [appellant], either in Australia or in Italy where the allegedly damning photographs were taken?" The appellant submits that this discloses an error because he led evidence before the Tribunal addressing this point, and that it wasn’t accepted. This much is true. However, there is no indication that the Tribunal refused to accept the evidence due to some oversight on its part as distinct from simply not being persuaded by it. In my view, the Tribunal adequately took into account the evidence relating to the likely impact which the relevant photographs might have upon the Iranian authorities’ treatment of the appellant. It found that such impact would not lead to the appellant’s persecution. The fact that the Federal Magistrate expressed the same point, albeit in a different way by means of a rhetorical question, does not alter my conclusion that the Tribunal’s reasoning is free from error on this point, and its findings therefore cannot be subject to challenge in this Court.
22 The appellant also asserts on appeal (ground 3) that the Federal Magistrate erroneously stated that his claim of being detained for a third time by the Iranian authorities was only raised before the Tribunal, and not before the delegate. Irrespective of whether the appellant did raise this point before the delegate or before the Tribunal of 27 January 2004, it cannot be said that the decision of the Tribunal of 12 September 2006, which is presently under review, overlooked or disregarded this point. The Tribunal of 12 September 2006 acknowledged that this discrepancy occurred:
‘[The appellant] told the first Tribunal in oral evidence that he was detained on a third occasion, and that he had not mentioned it to the Department because it was not related to religious or political reasons. I asked him about this detention. In response he claimed that [the delegate] had failed to include this claim in the written statement ... [provided] to the Department. He claimed that he had written down his story for [the delegate] and that it had included a mention of the third interrogation. [The delegate] had recorded his statement on tape and had given it to him for his own records but there was no mention on that tape of the third interrogation. [The appellant] produced this tape at the hearing.’
23 Having explicitly acknowledged the discrepancy before completing the task of considering evidence and making findings, the Tribunal cannot be said to have departed from its obligations under the Act. That the appellant was detained by Iranian authorities on a third occasion was clearly taken into consideration by the Tribunal, and an adverse finding on this point does not constitute a basis on which the appellant can seek review.
24 Another ground of the appellant’s appeal (ground 16) seeks to challenge a finding by the delegate that "he would do anything to gain permanent residence in Australia". In challenging this finding, the appellant relies on evidence which he says indicates that the opposite finding should have been made. This ground of appeal must be rejected because it does not assert any error of law in the Tribunal’s reasons, and this Court is not able to assess the evidence before the delegate or the Tribunal in order to make different findings of fact.
25 A further ground of appeal arising out of the appellant’s Notice of Appeal (ground 13) asserts that the Tribunal failed to ask a particular question of the appellant, namely, how he could have known that his former wife gave the photographs to the Iranian authorities. On this point, the reasons of the Federal Magistrate correctly address and dispose of this ground of appeal. At [12]-[13], the Federal Magistrate states:
‘Whilst I am quite satisfied that the Tribunal did raise with the [appellant] the question of his not retrieving his belongings [when he left his former wife] and that it could be readily ascertained from the manner of the questioning that this was a matter in issue ..., it does not appear that the Tribunal asked the [appellant] to explain how he could have known that his ex-wife gave the photos to the authorities. The question is whether it was necessary for it to have done this. The phraseology used by the Tribunal could be considered to be a mere observation. It is also to be remembered that the [appellant] never actually identified the particular photographs that he claimed the wife did send. He does not say in any of his statements that he was shown photographs and appears to be making an assumption that the investigators had photographs from the questions that they were asking him. But that information could equally have come from the ex-wife’s letter, a copy of which he claims to have seen but not read.
I am in no way satisfied that this case is similar to SZBEL. There are no grounds for holding that the [appellant] was entitled to assume that the existence of the photographs was not a matter in issue, particularly when the delegate had made such a firm finding about the [appellant’s] story.’
26 The reference to SZBEL v Minister for Immigration (2006) 228 CLR 152 is a reference to the principle that an applicant before the Tribunal must be given the opportunity to ascertain the determinative issues in relation to the Tribunal’s decision, and must be given sufficient opportunity to give evidence and make submissions in relation to them. I agree with the conclusion of the Federal Magistrate that this case is not analogous to SZBEL 228 CLR 152. The line of questioning pursued by the Tribunal in relation to the photographs adequately notified the appellant of the fact that this issue was relevant and determinative of some aspects of his claim. I am not persuaded that there has been any failure by the Tribunal to put this matter to the appellant. There is no denial of procedural fairness, as that right arises under ss 422B and 425 of the Act.
27 The final ground of appeal arising out of the appellant’s Notice of Appeal claims that the Tribunal erred in not considering whether the appellant would suffer persecution as a result of his current wife not converting to Islam and joining him in Iran upon his repatriation.
28 This ground of appeal must also be rejected. After accepting the appellant’s evidence that his wife would not join him in Iran if he was repatriated, the Tribunal found that the appellant’s claim that he would suffer persecution due to being married to a Christian "must fail" because:
‘... the Iranian authorities would remain unaware that he has married a Christian, and therefore no adverse inferences about him might be drawn as a result of such a marriage.’
29 In my view, there is no error in the Tribunal’s reasons on this point. It considered all the evidence put before it by the appellant and drew its conclusions, which are not now reviewable. It is worth noting, as the respondent submitted, that the actual decision of the appellant’s wife not to join him in Iran is not in itself indicative of persecutory conduct falling within the scope of the Refugees Convention.
30 Subsequent to the filing of the Notice of Appeal, the appellant filed two more documents dealing with what he said were errors in the Tribunal’s and Federal Magistrate’s decisions. One was entitled "Statement" and was received before the hearing, and the other was correspondence sent to the Court and received on 13 November 2007. Most of the submissions advanced in these documents reiterate those grounds advanced in the Notice of Appeal, and I need not deal with them again. Rather, I will address only the additional submissions, most of which are little more than variations on the arguments addressed above.
31 None of the additional arguments identify any basis on which it can be said that the Tribunal erred in law. Almost every argument seeks to challenge either findings of fact made by the Tribunal or comments made by the first Tribunal which were properly addressed or not relevant to the latter Tribunal’s decision which is under review. Some of these arguments also challenge observations of the Tribunal which were not significant to its ultimate decision. Although I reject each of these arguments, I will briefly comment on some of them.
32 The appellant made several submissions contesting observations and findings made by the first Tribunal, the decision of which is not the subject of the current review application. The points contested included that Tribunal’s treatment of issues such as the transfer in Iran of the charges against him (relating to corrupt dealings with Bonyad) to the Revolutionary Court, his intention not to convert to Christianity and the procedures by which an Iranian national who has charges pending against him or her is able to leave the country. Each of these are matters which the appellant says were erroneously disposed of by the first Tribunal. However, each of them was addressed in the Tribunal’s reasons under review, and was properly taken into consideration. Although the appellant relied on certain questions put to him by the Tribunal to support his arguments, it remains clear that, where the issue required the Tribunal to make a finding of fact, it did so. Any error into which the earlier Tribunal may have fallen when considering these points is not manifest in the present Tribunal’s reasons. Accordingly, I reject each of these submissions.
33 The appellant also advanced several new arguments which challenged the merits of findings made by the Tribunal. In particular, the appellant submitted that the Tribunal considered neither a letter provided by his former wife’s first husband nor his candour in explaining that the scars on his lower torso were from a kidney transplant operation (instead of, for instance, torture by Iranian authorities for political dissidence). Both of these matters were discussed in the Tribunal’s reasons, and were matters which it took into consideration when making its findings.
CONCLUSION
34 For the above reasons, I am of the view that the appellant has not
demonstrated any error of law in the reasons of the Tribunal
or the Federal
Magistrate. The appeal is dismissed with costs.
Associate:
Dated: 20 February
2008
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Mr T Reilly
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Solicitor for the Respondent:
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Australian Government Solicitor
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Date of Hearing:
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Date of Judgment:
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