SBAE v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 479 (26 April 2002)

Last Updated: 26 April 2002

FEDERAL COURT OF AUSTRALIA

SBAE v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 479

SBAE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S.223 of 2001

MANSFIELD J

26 APRIL 2002

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.223 OF 2001

BETWEEN:	SBAE APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	26 APRIL 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.223 OF 2001

BETWEEN:	SBAE APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	26 APRIL 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 The applicant is a citizen of Iraq. It appears that the Tribunal accepted his personal background. The applicant is of Assyrian ethnicity and Christian religion. He is a single man aged 30. He has lived in Baghdad all his life. After completing his secondary education in 1988 he went to an industrial school for a time and then between 1988 and 1994 he was employed in a government run battery factory, work which he described as dangerous. Between 1994 and 1996 he served his national service in the Iraqi army. He then undertook private employment for a time as a driver and between 1997 and when he left Iraq in early 2001 as a labourer in a jeweller's shop. In 1999 he was called up as a military reservist for one month. He left Iraq in February 2001 into Jordan and subsequently travelled to Australia, arriving on 6 June 2001.

2 The applicant applied for a protection visa under the Migration Act 1958 (Cth) (the Act) on 4 July 2001. That application was refused by a delegate of the respondent on 18 September 2001. The applicant sought review of that decision by the Refugee Review Tribunal (the Tribunal). The Tribunal affirmed the decision of the delegate on 27 November 2001.

THE APPLICANT'S CLAIMS

3 To be eligible to be granted the visa, it was necessary for the delegate of the respondent, and on review the Tribunal, to be satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act (the Convention), that being one of the criteria for the grant of a protection visa: s 36(2) of the Act. In practical terms in the present matter, that meant that the delegate of the respondent, and on review the Tribunal, had to be satisfied that the applicant is a refugee as defined in Article 1A(2) of the Convention, namely a person who:

"Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable, or owing to such fear, is unwilling to return to it."

4 The applicant ultimately made several claims which, he contended, gave rise to a well-founded fear of persecution for a Convention reason on his part.

5 Firstly, he claimed that he wished to study fine arts at the Fine Arts Institute, specialising in music, after he left school but he was unable to do so because he was forced to participate in the People's Army at the time, and because he was not a member of the Ba'ath Party. As he explained to the Tribunal, the relatively short period of time in which he participated in the People's Army after leaving school meant that he missed the entrance exam for admission to that institute. He went to the industrial school instead. He claimed that he was not permitted to sit the entrance exam late because he was not a member of the Ba'ath Party.

6 More generally, he claimed that from that time he had persistently been pressured to join the Ba'ath Party. That pressure had been applied more or less constantly from 1988 onwards. He told the Tribunal that in 1993 his mother had been forced to retire as a school teacher because she had refused to join the Ba'ath Party. When tested about this claim in the hearing before the Tribunal, the applicant also said that he had been beaten and tortured in Iraq because he had persistently declined to join the Ba'ath Party. He was unable to identify or describe any occasion upon which he had been tortured, but he told the Tribunal that he had been beaten twice in 1998 and in 1999 by members of that party and for a time had gone into hiding in Kirkuk.

7 He also told the Tribunal of a particular incident in October or November 2000 when members of the Ba'ath party had come to his home to force him to join Saddam's Commandos. His mother said he was not at home at the time. They left a notice requiring him to report within three days. He did not report for that service. He learned that if he did not join a "bad report" would be issued about him and he might well "disappear". It was that incident which prompted the timing of his departure from Iraq, although he said he had been wishing to leave Iraq for many years.

8 The applicant claimed to have bribed an official to get clearance documents to enable him to apply for a passport to leave Iraq at that time. Using a false clearance document, he was able to procure a valid passport and he then claims to have left the country irregularly from Iran into Jordan without difficulties. The circumstances of his departure, and the fact that he has applied for a protection visa in Australia, are also matters upon which the applicant claimed to have a well-founded fear of persecution if he were to return to Iraq.

9 The applicant also claimed to have a well-founded fear of persecution by reason of his Assyrian Christianity. He told the Tribunal that when he was working as a goldsmith, with a group of Christian goldsmiths, nearby Muslim goldsmiths would frequently taunt and threaten him and other Christian goldsmiths. He said they were able to do so with impunity because, as Christians, the applicant and others could not go to the authorities to seek redress. There was some correspondence put before the Tribunal on behalf of the applicant from an Assyrian Christian group suggesting that Assyrian Christians are subject to persecution in Iraq.

THE TRIBUNAL'S REASONS

10 The Tribunal dealt separately with each of those claims. It did not accept that the applicant has a well-founded fear of persecution by reason of any political opinion or imputed political opinion, arising from his refusal to join the Ba'ath Party. In part that was because it rejected some of his specific claims, and in part because of independent country information. It found that nothing adverse had happened to the applicant from 1988 by reason of any attempts to have him join the Ba'ath Party. It accepted that if he had been a member of the Ba'ath Party, that would possibly have disadvantaged him in regard to entering university, but it did not accept that he was barred from study as a result of not being a member of that party. It had independent country information, which it accepted, that there is no general requirement that those enrolling in university studies that might lead to employment in government instrumentalities be Ba'ath Party members. It noted that he was in fact able to enrol in another course of study, and was then accepted to work in the public service.

11 The Tribunal did not accept that the applicant had been beaten and tortured in 1998 or in 1999 because he had not joined the Ba'ath Party. That claim had not been made at any point until the Tribunal asked the applicant, at the hearing before the Tribunal, why he felt at risk from the Ba'ath Party although he had alleged pressure since 1988 without any adverse consequences. It was only then that the applicant presented those claims. The Tribunal noted that, when pressed as to details of the torture, the applicant was unable to provide any details other than to say that he had been beaten. The manner and circumstances in which that claim was made lead the Tribunal to conclude that it was fabricated at the hearing. It also rejected the claim that he had fled to Kirkuk, a claim also only made belatedly and apparently prompted by questioning of the Tribunal, to fortify the applicant's claim. The Tribunal concluded that that claim also "has been added at the eleventh hour to strengthen an otherwise weak case".

12 The Tribunal also rejected the claim that the applicant had been approached in late 2000 to join Saddam's Commandos. The applicant had not mentioned that claim in his initial interview following his arrival in Australia, or until a month or so later when he lodged his application for the protection visa. The Tribunal was concerned about that delay. It gave to the applicant a notice under s 424A of the Act pointing out its concern and inviting his comments. The response was that he had not mentioned that claim because he was too afraid to do so, and that during the arrival interview he had not had a sufficient time to do so because the interpreter had jumped to a different question and distracted his attention. The Tribunal found the particular claim to be implausible. Based upon the independent country information, it did not accept that such a fundamentalist group as Saddam's Commandos would seek to conscript somebody who had refused to be a member of the Ba'ath Party. It concluded that the applicant had not been called to serve in Saddam's Commandos, and that that claim had been made belatedly in an attempt to strengthen an otherwise weak set of claims. It was not able to accept the applicant's explanation for why he had not mentioned that claim at his arrival interview, as it was at the forefront of the reasons why he had been forced to leave Iraq as and when he did, and because in other respects the applicant had not demonstrated any reluctance to tell officers of the respondent or the Tribunal about other experiences in military service. It also rejected his explanation that he had not had sufficient time to mention that matter because he had been given "every opportunity" to put his claims at the arrival interview. It is not clear how the Tribunal reached that latter conclusion, but in my view it has not been shown that that particular conclusion on the part of the Tribunal was erroneous.

13 The Tribunal also rejected the claim on behalf of the applicant that he has a well-founded fear of persecution by reason of being an Assyrian Christian. When questioned by the Tribunal, the principal disadvantages which the applicant claimed were the inability to take holidays for Christian festivals and periodic taunting from Muslims. The Tribunal noted from independent country information that Christianity is a recognised religion in Iraq and that Christians are free to worship their religion in Iraq. It pointed out that a Minister in the Iraqi government is a practising and declared Christian. It also was not satisfied that the degree of adverse attention of which the applicant complained was of such a serious nature as to amount to persecution, as that term is used in the Convention. It found further that, because the applicant had continued in the business working for a jeweller until his departure from Iraq, notwithstanding the taunts from his Muslim goldsmith neighbours, he did not face a real chance of persecution from them because of his Christianity.

14 The Tribunal was also not satisfied that the applicant has a well-founded fear of persecution by reason of the circumstances in which he left Iraq, or by reason of having applied for a protection visa in Australia. It found that the money he paid for clearance documents was solely for the purpose of expediting his application for a passport, as a consequence of corruption and was not for any more sinister reason. There was no impediment to the applicant obtaining a passport in his own name. Those findings were based upon independent country information, but reflected the evidence of the applicant that, although he left the country irregularly, the passport he travelled on was a genuine passport and he crossed from Iraq to Jordan at a normal check point. It therefore concluded that the applicant has no adverse record by reason of his method of departure from Iraq. It also concluded, in view of the fact that it had found that the applicant had lead an unexceptional life as an ordinary citizen of Iraq, that he was of no particular interest to the authorities in Iraq. On the basis of that categorisation, it was not satisfied that his attempt to seek asylum in Australia would be regarded as an act of treason or as a political act on his part, and it was satisfied on the basis of independent country information that he would not suffer harm amounting to persecution if he were to return to Iraq.

15 Accordingly, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention, and as he did not satisfy the criterion set out in s 36(2) of the Act for a protection visa, it affirmed the decision not to grant him a protection visa.

CONSIDERATION OF GROUNDS OF REVIEW

16 The application for review did not identify any matters which would give rise to relief under s39B of the Judiciary Act 1903 (Cth). The applicant re-asserted his concern that, if he were to return to Iraq, he would be executed by the authorities in Iraq, and that he had been truthful in all that he had told officers of the respondent and the Tribunal. He asserted that he had "not been believed unreasonably". In the statement supporting that application, he pointed out that he found it difficult to express himself, and that that limitation should not unfairly affect his consideration of his entitlement to a protection visa.

17 The assessment of the merits of the applicant's claims is fundamentally the function of the Tribunal. The Court is not empowered to revisit findings made by the Tribunal, and to substitute its view of appropriate findings for those made by the Tribunal. That is not to indicate that, in this instance, I have formed different views about matters of fact upon which the Tribunal has made findings. I have not done so. That is not the Court's function. It is to indicate that, without error of the kind which would enliven the Court's powers under s 39B of the Judiciary Act, the sort of matters to which the applicant has referred as noted above do not entitle the Court simply to revisit the determination of the Tribunal or to set it aside.

18 In the statement of the applicant accompanying his application, he did put matters concerning particular findings of the Tribunal. One of the reasons that the Tribunal rejected the applicant's claim to have been required to join Saddam's Commandos in late 2000 was expressed in the following terms:

"It is implausible, given the nature of the Fedayeen [Saddam's Commandos], required to serve even to the point of suicide, that the applicant would be approached to serve with his limited involvement in the military and his failure to ever apply to be a member of the Ba'ath Party."

The applicant contends that he claimed to the Tribunal that the Fedayeen do force people to join them, but that the Tribunal had relied on personal and unrealistic speculations rather than investigating that claim. The Tribunal, in its recital of the information before it, had noted information that the Fedayeen is a para-military force, with many members in their team recruited in areas noted for their loyalty to Saddam. The Tribunal had specifically put to the applicant that it was difficult to accept that he would be asked to join such a group when his profile was that of someone who had resisted joining the Ba'ath Party. The applicant at that point said that he understood the Tribunal's concern but insisted that he had been sought to be so conscripted. In my view, the Tribunal has not, as the applicant has claimed, relied on "personal and unrealistic speculations" in reaching its conclusion about that matter. It has had regard to independent country information, indeed information provided by the applicant's adviser, and has put to the applicant its concern about that matter. I consider that the finding which it made was open to it.

19 The applicant also raised the Tribunal's consideration of his claim to persecution as a Christian Assyrian in Iraq. He claimed that the Minister in the Iraqi government to which the Tribunal refers had in fact converted to Islam some years before. He also asserted that it is well known that Assyrian Christians in Iraq are subject to persecution. In my view the Tribunal has not fallen into reviewable error in its consideration of the applicant's claim in this regard. It had regard to independent country information, including advice provided by the Department of Foreign Affairs and Trade to the effect:

"... that the broad spectrum of Christian communities in Iraq are not discriminated or persecuted by Saddam's regime. Iraqi [sic] is essentially a secular society where Christians have been established for 2000 years".

On the basis of the material to which the Tribunal referred, the finding was open to it. Its reference to the Minister in the Iraqi government was but an example, and does not diminish the foundation for its conclusion, even if that Minister has converted to Islam. Moreover, as noted above, that was but one of the Tribunal's reasons for rejecting the applicant's claim to be a refugee by reason of his Assyrian Christianity. The other reason was that, on the applicant's own account, the degree of adverse attention which he feared, and which he had experienced, was not of sufficient significance to amount to persecution as that term is used in the Convention. No attack has been made on that latter conclusion. Of itself, that would be sufficient to lead to this complaint of the applicant's being unsuccessful.

20 Finally, the applicant referred to the Tribunal's consideration of the circumstances of his departure from Iraq. He complains that the Tribunal "unreasonably and unfairly refused to accept my account". He claims that he had made the claim to the Tribunal that, because of having been a former public servant, his name still existed on the list of individuals forbidden to leave Iraq and that he had to bribe a local military official to obtain a passport and then to be permitted to leave Iraq. In that sense, he claims to have left Iraq illegally. The Tribunal understood that claim. It noted it specifically in its recital of the applicant's claims and the evidence he relied upon. It noted that the applicant claims to have paid separate amounts to obtain a military clearance to permit him to leave the country, to procure his clearance papers, and then upon exit. It noted that the exit payment approximated that which was recorded as the normal exit visa fee for those leaving Iraq. It noted, on the basis of independent information, that no person in conflict with the authorities of Iraq would be able to have a passport issued, and that it was a condition of having a passport issued that a person demonstrate that that person had completed military service. It noted that bribery was common, mainly in relation to expediting the issue of documents. The Tribunal specifically raised with the applicant, relevant to this issue, that he had ended his employment with the public service in 1994, so that he was not in the position of a public servant at the time when he got his passport. Independent information indicated that only senior government officials and employees were prevented from departing Iraq, and the Tribunal found it difficult to understand why the applicant would in the circumstances be refused a passport. It concluded:

"... I find the applicant had completed his military service, had ceased working for the public service since 1994 and had not committed any acts of opposition to the Iraqi regime. This being the case, there was no impediment to him obtaining a passport other than that which confronts other Iraqi travellers [namely] corrupt bureaucratic officials. ... In the applicant's case, I find that if he paid money for clearance documents or any other document related to his passport it was solely for the purpose of expediting or as a consequence of corruption and nothing more sinister. As I have found above, there was no impediment to the applicant obtaining a passport."

21 In my view, it is apparent that the Tribunal did understand the applicant's claim and did address it. The applicant's contention in that document really amounts to no more than an attempt to dispute on the merits the conclusions which the Tribunal reached in relation to that claim. It does not demonstrate error on the part of the Tribunal as would enliven the entitlement to any order under s 39B of the Judiciary Act.

22 The applicant appeared in person at the hearing, but his submissions did not extend beyond asserting factual error on the part of the Tribunal. I have also independently reviewed the Tribunal's reasons, having regard to the applicant's circumstances, to discern whether they disclose error on its part such as would warrant the Court's intervention under s 39B of the Judiciary Act. In my judgment no such error on the part of the Tribunal is apparent.

23 Accordingly, I consider that the application must be dismissed. I so order. I see no reason why the ordinary rule as to costs should not apply. I order that the applicant pay to the respondent costs of the application.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated: 17 April 2002

Counsel for the Applicant:	Applicant appeared in person.
Counsel for the Respondent:	Mr M Roder
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	10 April 2002
Date of Judgment:	26 April 2002