SCAR v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant, a citizen or Iran, arrived in Australia by boat via Malaysia and Indonesia on 6 June 2001. He is a bachelor, aged thirty-one. His application for a protection visa was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") and subsequently, after a review, that decision was affirmed by the Refugee Review Tribunal ("the Tribunal"). On 1 March 2002, the applicant filed an application in this Court pursuant to s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act") seeking that writs of certiorari and prohibition be directed to the Tribunal and the Minister so that the Tribunal's decision might be quashed and so that the Minister might be prohibited from acting upon or giving effect to the Tribunal's decision. The power of this court to intervene is now subject to the amendments to the Migration Act 1958 (Cth) ("the Act") that took effect on 2 October 2001. 2 In par 6 of his application, the applicant pleaded as follows: "The applicant seeks relief under s 39B of the Judiciary Act 1903 (Cth) on the grounds that the first respondent: (a) exceeded jurisdiction in making the decision to affirm the second respondent's decision not to grant the applicant a protection visa; and (b) erred in law in arriving at the decision to affirm the second respondent's decision not to grant the applicant a protection visa." 3 The first respondent was the Tribunal and the second respondent was the Minister. On the application of counsel for the Minister I made an order that the Tribunal cease to be a party to the proceedings. Section 479 of the Act provides that, in the circumstance of cases such as this, the only parties shall be the applicant and the Minister. 4 The applicant's claim for refugee status was based on his fear that he would be persecuted if he returned to Iran because of his involvement in a University political group. He said that he left Iran because he believed that he had come to the notice of the authorities as a political dissident. He was born in 1971 and in February 2001, when he was aged thirty or thereabouts, he engaged with other students in a silent procession. He said that some of the students were arrested; he was not one of them however. He also claimed that he authored student newsletters that were critical of the authorities. On another occasion, he participated in a demonstration at the University. He said that the Ettelaat agents (who I take to be people in authority) attacked the demonstrators and that he was assaulted. He claimed that he found out, a few days later, that five of the demonstrators had disappeared. He also found out that the people who attacked the students were members of Ansar-e Hezbollah. 5 Finding out later that more students had disappeared, the applicant said that he became frightened; he did not go to his home but stayed with a relative. He spoke to his father by telephone and was told that "some people" had come to the house, saying that they were friends of the applicant; he believed that they were government agents. The applicant finally left Iran in March 2001 when a relative, who worked for the government, passed on a message that the applicant was about to be arrested. Subsequent to his departure, he spoke to his father by telephone from Malaysia. He claimed that his father told him that people had forced their way into the family home and the applicant's room. His father was the only member of his immediate family who was still alive. His mother and his two siblings were killed in a motor vehicle accident in 1997. He said that the authorities took his father away and detained him for two days. 6 The Tribunal did not believe the applicant's story. It said of him "I do not consider that the applicant was a credible or reliable witness". Before arriving at that decision, the Tribunal reminded itself, appropriately, of its responsibilities. It said: "When determining whether an applicant is entitled to protection in Australia I must first make findings of fact on the claims he or she has made. This may involve an assessment of the credibility of the applicant. When assessing credibility, I must be sensitive to the difficulties often faced by asylum seekers and should give the benefit of the doubt to those who are generally credible but unable to substantiate all of their claims. However, I am not required to accept uncritically any and all allegations made by an applicant. In addition, I am not required to have rebutting evidence available to me before I can find that a particular factual assertion by an applicant has not been made out. Moreover, I am not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality. See Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547. If I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence, I must proceed to assess the claim on the basis that the claim might possibly be true. (See Minister for Immigration and Multicultural Affairs v Rajalingam (1999) FCR 220)." 7 In support of his application for review by the Tribunal, a handwritten submission dated 8 January 2002 and prepared on behalf of the applicant had been submitted to the Tribunal together with a written submission dated 25 January 2002 from his migration agents. However, the core issue to this application as it was presented in argument before this Court, was centred upon the applicant's state of health when the Tribunal heard his application on Tuesday 12 February 2002. On Friday 8 February 2002, that is, four days before the Tribunal hearing, the applicant received telephone advice that his father had died. The Tribunal hearing was conducted through a video transmission with the Tribunal member in Sydney and the applicant in the Woomera Immigration Reception and Processing Centre ("Woomera"). The hearing commenced at 2:01 pm central standard time and concluded at 4:20 pm. There was one recess during the hearing of about twenty minutes duration. The applicant was unrepresented; an interpreter was provided but he was in Sydney. 8 The submissions that were made on behalf of the applicant in the present proceedings were to the following effect: