SAAV v Minister for Immigration & Multicultural Affairs [2002] FCA 160 (21 February 2002)

Last Updated: 4 March 2002

FEDERAL COURT OF AUSTRALIA

SAAV v Minister for Immigration & Multicultural Affairs

[2002] FCA 160

SAAV v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

S.210 of 2001

MANSFIELD J

21 FEBRUARY 2002

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.210 OF 2001

BETWEEN:	SAAV APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	21 FEBRUARY 2002
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant pay to the respondent costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.210 OF 2001

BETWEEN:	SAAV APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	21 FEBRUARY 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 The applicant is a citizen of Iraq aged about 24. He is of Chaldean ethnicity and is of the Christian religion. He is a single man with family still in Iraq. He arrived in Australia on 4 May 2001 and on 31 July 2001 applied for a protection visa under the Migration Act 1958 (Cth) (the Act). That application was refused by a delegate of the respondent on 24 August 2001 and subsequently by the Refugee Review Tribunal (the Tribunal) upon review of that decision on 31 October 2001.

2 The present application seeks judicial review of the Tribunal's decision. In a substantive sense, it can only invoke the Court's jurisdiction under s 39B of the Judiciary Act 1903 (Cth). To consider whether the Court should exercise its powers under that section, particularly in the light of s 474 of the Act, it is necessary to identify the grounds upon which the applicant claims to be a refugee in Australia and the reasons of the Tribunal for rejecting those claims.

3 It is only if the delegate of the respondent or, on review, the Tribunal were satisfied that the applicant is a refugee as defined in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act (the Convention) that he would have been eligible for the grant of the visa. That is because s 36(2) of the Act imposes as a criterion on the grant of the visa that the delegate of the respondent and, on review, the Tribunal be satisfied that the applicant is a person to whom Australia owes protection obligations under the Convention, and in practical terms the present matter that invites attention to the definition of "refugee" in the Convention.

4 The applicant gave an interview to an officer of the respondent on 18 May 2001 in which he is recorded as having said that he left Iraq "officially" on a genuine passport or "an original passport" which was subsequently destroyed en route to Australia. He complained of general disaffection with Iraq because of a lack of freedom but said "I have no reasons why I can't return to Iraq" and he said that he would have no problems returning to Iraq because he left Iraq officially, but there was not a future there for him.

5 He subsequently resiled from that position when applying for his protection visa and before the Tribunal. He also has maintained in what he has told me today that he did not leave Iraq on a validly issued passport but on one which was a forgery procured through bribery. He explained to the Tribunal that he had given that version of events on 18 May 2001 because he feared reprisals to his family if his true claims were disclosed and then passed somehow to the Iraqi authorities. He also said that after a long and dangerous journey to Australia he was not inclined to be forthcoming at the time, and without legal advice he did not know what was relevant tell that officer. At the hearing today he also said that he had been asked at the time of that interview to make it short and so he had not disclosed most of his problems. It appears that today is the first time that that latter comment has been made, so the Tribunal cannot be criticised for not having taken such a matter into account in its decision.

6 In his application for a protection visa, and subsequently, he has made three claims which are said to give rise to him having the status of refugee. He said that in 1998 he had been imprisoned and only released after payment of a very substantial fine following an allegation of rape made against him by a Muslim family who were displeased that he, as a Christian, was friendly with their daughter. He said his file was then marked that he was a "dirty unbeliever Christian". The second claim was that in September 2000 he and his cousin had been arrested, imprisoned and tortured because, it was alleged, his cousin had been accused of swearing at the President. He claimed that that false accusation was made by a shopkeeper because his cousin had failed to pay a debt, but that the shopkeeper would not have made such a complaint if he and his cousin were not Christians. In that case he had managed to escape and then hid until he fled from Iraq some time later. Each of those complaints attributed that conduct of the authorities towards him as being by reason of, or partly by reason of, his religion as a Christian. It is possible that the second complaint also concerned an allegation of persecution by reason of an imputed political opinion. In the present matter, the precise cause for that conduct does not need to be further explored, for reasons which I will give. The third claim to be a refugee was based upon the fact that the applicant had left Iraq illegally having procured a false passport and having bribed an official and that the authorities would persecute him on his return for that reason.

7 The Tribunal was sceptical of the claims of arrest and beatings which took place in 1998 and 2001. It did not think that the applicant presented at the hearing on 2 October 2001 as a credible and reliable witness. It did not accept his claim of having been arrested or detained in 1998 arising out of a relationship with a Muslim woman. It described the applicant's claim as "implausible" and noted that his oral evidence attributed that arrest to slightly different circumstances than an allegation of rape, namely the non-fulfilment of an arrangement with the girl and her family. It described the "minor shift" in his story as showing a "willingness to tailor his evidence in a manner which suits his own purposes".

8 The Tribunal also did not accept that the applicant had been arrested and detained in September 2000. At its hearing, it explored with the applicant details of the circumstances of that arrest and of his detention and escape. It described his claims as "far fetched and implausible". The Tribunal apparently was prepared to accept that the applicant had physical scars consistent with having been beaten by the authorities, but it said that if he had been beaten by the authorities it was not for the reason which he gave. It was not satisfied that the applicant has had any past difficulties with the Iraqi authorities arising out of actual or imputed political opinion.

9 As to the third claim, the Tribunal accepted that the applicant may have paid a bribe to facilitate the issue of his passport. Because it had rejected his claim that he was of interest to the authorities by reason of his arrest and subsequent escape in 2000, it concluded that any bribe paid by him was simply to speed up the process of getting his passport. It found that he departed Iraq legally on a passport issued in his own name and that at the time he was of no interest to the authorities. It also found that he did not leave Iraq out of a fear of persecution but in search of improved living conditions. Having regard to its finding as to how the applicant left Iraq, it also concluded on the basis of independent information, that there is no real chance of the applicant experiencing any adverse reprisals upon his return to Iraq by virtue of having applied for a protection visa in Australia. There was some conflicting information before the Tribunal on that question, but it preferred that which was "the most comprehensive and recent analysis" of the issue.

10 Consequently, the Tribunal was not satisfied that the applicant had a well-founded fear of being persecuted for a Convention reason if he were returned to Iraq. Notwithstanding the destruction of his passport it also was satisfied on the basis of information available to it that he could get a replacement passport to return to Iraq. The Tribunal was not therefore satisfied that the applicant met the criterion specified in s 36(2) of the Act for the grant of the visa, and affirmed the decision of the delegate of the respondent.

11 The application to the Court does not contain any claim which, if established, might indicate a ground upon which the Court might grant relief under s 39B of the Judiciary Act. As the applicant is appearing for himself and did so before the Tribunal, he is not to be criticised for that deficiency in the application. Similarly, he is not to be criticised for his submissions made to the Court today also failing to focus on that question. In each instance, his complaints reflect his disagreement with findings of fact made by the Tribunal and his assertions that, contrary to those findings, he did leave Iraq illegally on a forged passport. It is not the Court's function on an application such as the present to re-hear the decision of the Tribunal on the merits. As the applicant did appear for himself, I have also separately reviewed the Tribunal's reasons for its decision to ascertain whether any errors in its decision or in the process of making its decision are disclosed which might enliven the Court's power to make an order under s 39B of the Judiciary Act.

12 In my view the Tribunal has correctly identified the applicable law and has correctly applied it to the facts as it found them to be. There is nothing to indicate that it has exceeded its jurisdiction, or that it has failed to address the question which it was obliged to address to consider the applicant's claims, or that it has taken into account matters which it was not entitled to take into account, or that it has not taken into account matters which it was obliged to take into account, so as to give rise to any doubt about its jurisdiction to have made the decision it did. There is nothing to suggest that it has failed to comply with procedures prescribed in the Act for the making of its decision, or that it has failed to accord the applicant procedural fairness in such a way as to impair its jurisdiction to have made the decision.

13 In my view, nothing has been shown upon which the Tribunal's decision might attract any order under s39B of the Judiciary Act, even without consideration of s 474 of the Act. The Tribunal does not expose itself to such an order by making findings of fact with which the applicant disagrees, and it has not been shown that any of the critical findings of fact were not open to it.

14 I consider that the application should be dismissed. I see no reason why the ordinary rule as to costs should not apply. I also order the applicant to pay the respondent costs of the application.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated: 27 February 2002

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr M Roder
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	21 February 2002
Date of Judgment:	21 February 2002