“A” v Minister for Immigration and Multicultural Affairs

[2000] FCA 298

FEDERAL COURT OF AUSTRALIA

“A” v Minister for Immigration & Multicultural Affairs [2000] FCA 298

MIGRATION – decision of Refugee Review Tribunal refusing protection visa – applicant citizen of Iran – applicant claimed to actively support Mojahedin-e-Khalq in Australia – whether Tribunal erred in considering applicant’s claim to be a refugee sur place

Mohammed v Minister for Immigration and Multicultural Affairs [1999] FCA 868, referred to

“A” v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 836 OF 1999

MOORE J
17 MARCH 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 836 OF 1999

BETWEEN:	“A” Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	MOORE J
DATE OF ORDER:	17 MARCH 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant pay the 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	N 836 of 1999

BETWEEN:	“A” Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	MOORE J
DATE:	17 MARCH 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. This is an application by “A” (“the applicant”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 29 July 1999.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) refusing to grant the applicant a protection visa.  The criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (“the Convention”).

   Background

2. The applicant is a citizen of Iran who arrived in Australia on 22 June 1998.  On 1 September 1998 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (“the Department”).  On 6 November 1998 the application was refused by a delegate of the Minister, and on 19 November 1998 the applicant sought review of that decision.  Both the delegate and the Tribunal considered the circumstances of the applicant and whether the applicant was a refugee.

   Proceedings before the Tribunal

3. The essence of the applicant’s case before the Tribunal was that he will be subjected to persecution if forced to return to Iran because of his activities in support of the Mojahedin-e-Khalq (abbreviated, variously, as MKO, MEK and PMOI – hereinafter referred to the “PMOI”).  The reasons for decision of the Tribunal commenced with a discussion of the relevant legislation and what is comprehended by the definition of “refugee” and by the notion of “persecution”.  Reference was made to the judgments of the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 and to the judgment of the Full Court of this Court in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565.

4. The Tribunal considered the circumstances of the applicant in a section headed “Claims and Evidence”.  The Tribunal first noted that the applicant’s claims were set out in written submissions to the Department, written submissions to the Tribunal and oral evidence given to the Tribunal.  The Tribunal then set out what emerged from that material which is now briefly summarised in so far as it is relevant to the Tribunal’s findings.

5. The applicant claimed that he has been blacklisted in Iran because of his activities in support of the PMOI.  He claimed that support from the PMOI runs “deeply” in his family and that his brother-in-law had been executed and some other relatives imprisoned.  The applicant claimed he was imprisoned in 1982 for co-operating with the PMOI, and produced a certified translation of a letter dated 6 March 1983 from the Central Public Prosecutors of Iran (“the 1983 letter”) stating:

   “The above named prisoner [“A”] was sentenced to fifteen years imprisonment in the Court of Islamic Revolution on 18 February 1982.  His term of imprisonment will be finalised on 1 September 1996.”

6. The applicant claimed he was released after one year following the intervention of a Mullah named Meshkini, who had holidayed at the applicant’s family’s home.  The applicant stated that from 1984, after the execution of his brother-in-law, he ceased all contact with the PMOI and was not subsequently detained.  The applicant said he was contacted periodically by the authorities and asked to attend for questioning and, in particular, was sent a letter in 1995.  A certified translation of a letter dated 10 August 1995 from the Public Prosecutors Office (“the 1995 summons”) was produced by the applicant stating:

   “ [“A”] please present yourself to the Public Prosecutors of the revolution with regard to further explanations, upon receipt of this letter.  It is evident that an appropriate approach will be undertaken upon your non-compliance.  …  This is the second warning, as you have not complied with the previous summons ...”

7. At the hearing the applicant stated that if he attended for questioning he would be asked if he knew a particular person and then permitted to leave.  The applicant claimed he was contacted several such times in 1995 and, it appears, claimed he attended for fifteen minutes each time.

8. On 23 September 1996 the applicant was issued with an Iranian passport, which he used to leave the country in 1998.  The Tribunal asked the applicant why he waited almost two years to leave the country if he was truly afraid of the authorities, to which the applicant replied that he was “looking into his options” and “looking into leaving” and that his immediate departure would look suspicious.

9. The applicant claimed that since arriving in Australia, he had contacted the leader of the PMOI here, attended a meeting in 1999 commemorating the twentieth anniversary of the the Iranian Revolution, and had been open about his support for the PMOI.  He claimed that the authorities would know about this and that he would face execution were he to be returned to Iran.

10. The Tribunal considered the applicant’s evidence and claims in a section in its reasons titled “Findings and Reasons”. The Tribunal indicated it was not satisfied that the applicant had a well-founded fear of persecution based his claimed political activity in Iran.  It did not believe much of the applicant’s account of his experiences in Iran.  

11. Further, it noted that the applicant, on his own account, was not involved in any political activities between 1984 and 1998, that he left Iran without difficulty on a legal passport in his own name, and that he gave explicit evidence that at the time he left Iran the authorities were “not concerned” with him and were “satisfied” that he had no political involvement.

12. The Tribunal next considered the applicant’s contention that he was a refugee sur place.  The first basis on which the applicant relied was that he would be persecuted in Iran for his involvement with the PMOI in Australia.  The Tribunal referred to the decisions of the Full Federal Court in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 (“Somaghi”) and Heshmati v Minister for Immigration, Local Government and Ethnic Affairs (“Heshmati”) and also the decisions of Lockhart J at first instance: Somaghi [1990] FCA 664; Heshmati (1990) 22 ALD 225. The Tribunal stated it could not be satisfied that the applicant’s claim to be a PMOI supporter was credible. The applicant had agreed at the hearing to the Tribunal contacting the person mentioned in the applicant’s application as the “person acting as the leader of the MKO in Australia”. The Tribunal did so, and that spokesperson’s reply included the following statements:

    “As I mentioned above, the only “activity” he has been involved in since he has arrived (as far as I know) was his participation in the commemoration meeting.  I cannot affirm that he is a PMOI supporter … I do not believe that he is a supporter of PMOI.”

13. The Tribunal stated it could not be satisfied with the applicant’s explanation that this adverse information was accounted for by a “personality difference” between himself and the spokesperson.  The Tribunal noted that the applicant himself had nominated the spokesperson, that the Tribunal had contacted the spokesperson with the agreement of the applicant, and the applicant had not mentioned the “personality difference” prior to the adverse information despite having ample opportunity to do so.

14. The second basis on which the applicant said he was a refugee sur place was that he feared persecution because he had made an application for refugee status in Australia.  The Tribunal found, on the basis of independent evidence, that such an action was not per se an offence in Iran.  Furthermore, the Tribunal stated:

    “If an asylum seeker departed Iran illegally, or was a fugitive from justice, it is not uncommon for close family members to be questioned by the authorities and in some cases for harassment to occur.  At worst, knowledge that an individual has sought political asylum abroad would not result in much more than verbal harassment, unless the asylum-seeker concerned had a high opposition political profile.  The applicant departed Iran legally, and has not claimed to be a “fugitive from justice”.  [The] Tribunal cannot, therefore, be satisfied that the applicant has a well fear of persecution arising from his having made an application for Refugee Status in Australia and is supported in this finding by the independent evidence above.”

The Application for Judicial Review

1. At the hearing, the applicant was unrepresented and required the services of an interpreter.  He explained that his application for judicial review had been prepared with the assistance of a migration agent.  The applicant was, understandably, unable to advance any submissions in support of the application.  The application itself does not identify with any precision grounds for judicial review.  However it does appear to raise a contention that the approach of the Tribunal to the question of whether the applicant was a refugee sur place manifests an error of law.  Reference is made in the application to the judgment of Lee J in Mohammed v Minister for Immigration and Multicultural Affairs [1999] FCA 868. The facts in Mohammed and their consideration by the Tribunal were materially different to those arising in the present proceedings.  Lee J was concerned with a case where the applicant had given evidence of having written to his brother in Sudan and the letter having been intercepted by the Sudanese authorities.  The Tribunal treated the writing of this letter as a self serving act of the applicant to bolster his claim to be a refugee.  What the Tribunal appears to have done was overlook entirely as a relevant fact, the fact that the letter had been intercepted and the implications of that fact on whether the applicant had a well founded fear of persecution.  In the course of considering that application, Lee J traversed a number of authorities and legal texts concerning the way in which a claim to being a refugee sur place should be approached.

2. In the present case the Tribunal rejected the applicant’s contention that when in Australia the applicant had been involved, in any substantial way, with the PMOI/NCR.   That finding was open to the Tribunal on the material before it.  That finding coupled with the concession by the applicant made to the Tribunal that he had not been politically active in Iran between 1984 and 1996 appears to have led the Tribunal to the conclusion that the applicant was not a refugee sur place.  While the Tribunal additionally based its conclusion on the bare opinion of the spokesperson (referred to in paragraph 12 above) that the applicant was “after information having to do with applying for refugee status” when the spokesperson and the applicant met, that does not, in my opinion, affect the central factual findings of the Tribunal and the conclusion it reached based on them.

3. I do not discern in the decision of the Tribunal an error of law of the type that is apparently raised by the applicant in his application.  Accordingly I dismiss the application and order that the applicant pay the respondent’s costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore .

Associate:

Dated:             17 March 2000

The Applicant appeared in person.
Solicitor/Advocate for the Respondent:	Mr A Markus, Australian Government Solicitor
Date of Hearing:	7 March 2000
Date of Judgment:	17 March 2000