Abarghan v Minister for Immigration and Multicultural Affairs

[2001] FCA 1246

FEDERAL COURT OF AUSTRALIA

Abarghan v Minister for Immigration & Multicultural Affairs [2001] FCA 1246

REZA B ABARGHAN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 56 OF 2001

EMMETT J
31 JULY 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 56 OF 2001

BETWEEN:	REZA G ABARGHAN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	31 JULY 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application be dismissed.

1. 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
WESTERN AUSTRALIA DISTRICT REGISTRY	W 56 OF 2001

BETWEEN:	REZA G ABARGHAN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	31 JULY 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant is a citizen of Iran who arrived in Australia in November 2000 with his wife and two children. On 12 November 2000, they applied for Protection (Class XA) visas.  On 7 December 2000, a delegate of the respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”) made a decision refusing the applications.  On 8 December 2000, the applicants lodged an application to the Refugee Review Tribunal (“the Tribunal”) for review of the delegate’s decision.  On 20 February 2001, the Tribunal affirmed the decision not to grant protection visas. 

2. Only the present applicant, Reza Ghanbary Aghdam Abarghan, made specific claims under the 1951 Convention Relating to the Status of Refugees as amended by the Refugees Protocol (“the Convention”). The applicant’s wife and children claimed to be members of his family unit and combined their applications with his application as is permitted by the Migration Regulations 1994.

3. On 27 February 2001, the applicant filed an application to this Court for an order of review of the decision of the Tribunal. In his application the applicant relied on the grounds contained in s 476(1)(e) and (g) of the Migration Act 1958 (Cth) (“the Act”). Those grounds are that the decision involved an error of law and that there was no evidence or other material to justify the making of the decision.

4. The applicant appeared in person, unrepresented by any legal counsel.  It appears that counsel was prepared to give assistance to the applicant but that he indicated to counsel that he no longer wished counsel to act for him.  Accordingly, very little has been said in support of the application.  The complaint is that the member of the Tribunal did not listen to the applicant.

5. The applicant was interviewed shortly after his arrival in Australia because he did not have a passport.  He said that he had left Iran about five months previously, using an Iranian passport in another name.  When asked why he had left Iran, he said that his sister had been a member of the Mujahideen-e Khalq, Iran’s largest opposition group.  He said that his sister had left Iran in 1996.  She now has refugee status in the United Kingdom.  He claimed that in 1990 he had been carrying parcels which he thought contained leaflets for the Mujahideen.  He said that his father had been arrested and beaten by government agents for criticising the government and that his car had been vandalised because of his association with his sister.

6. The applicant said that he had been arrested by the Sepah Pasdaran (the Revolutionary Guards) in September 1999 and was held for a week.  He said that he was asked questions about whom he worked for and whom he had been helping and that he had been beaten during the interrogation.  He said he had been released but subsequently received a letter ordering him to go to court.  He said that he had not gone to court and that if he were to return to Iran he believed he would be tortured or mistreated and imprisoned.  He said that, while he had assisted the Mujahideen, he had not been a member.

7. The Tribunal accepted that the applicant’s sister was a member of the Mujahideen-e Khalq and that she has been granted refugee status in the United Kingdom.  However, the Tribunal did not accept the applicant’s claim that his sister held a very high rank in the Mujahideen.  The applicant consistently said that he did not know the details of his sister’s activities and was unable to explain the basis for his claim that his sister held a very high rank.

8. The Tribunal accepted that the applicant himself had assisted his sister by delivering parcels of Mujahideen pamphlets or leaflets five or six times a year to different cities between 1983 and 1991.  The Tribunal also accepted that the applicant had assisted his sister by taking her to different places in his private car between 1991 and 1995.  The Tribunal also accepted that the applicant’s sister fled Iran because the Iranian authorities became aware of her activities as a member of the Mujahideen.  It also accepted that after his departure his car was vandalised when he went to visit his parents and that he was verbally abused by people in local shops.  The applicant claimed that the authorities were aware that he had taken his sister to places in his car and that because of that he had been singled out for attention by the authorities while his brothers had not faced the same problems.  The Tribunal accepted that the applicant had been arrested in September 1999 and detained for a week.  It accepted that he was slapped, punched and kicked, questioned about his sister’s activities as he claimed, was asked where his sister was and whether he had any involvement in anything.

9. However, the Tribunal did not accept the applicant’s claims that in October-November 1999, January-February 2000 and March-April 2000 he had received three successive letters asking him to present himself at the Revolutionary Court.  The Tribunal considered that it was implausible that the authorities would have issued him with summonses if they had suspected him of serious offences.  The Tribunal relied on advice from the Australian Department of Foreign Affairs and Trade that an individual charged with serious offences in Iran would not be summoned to appear in Court but would be arrested.  The Tribunal relied on the fact that that is what the applicant claimed occurred when he was arrested in September 1999. 

10. The Tribunal considered that the applicant was of no interest to the Iranian authorities at the time that he left Iran, notwithstanding their knowledge of his own and his sister’s activities in support of the Mujahideen.  The Tribunal did not consider that the authorities had any continuing interest in him after they released him in September 1999.  The Tribunal considered that having regard to the peripheral nature of the applicant’s activities, his release after seven days was an accurate reflection of the Iranian authorities’ assessment of his importance.  The Tribunal did not accept that the applicant was placed under surveillance following his release as he claimed.  Nor did the Tribunal accept that there was a real chance that the authorities would want to arrest him if he returned to Iran now or in the reasonably foreseeable future on the basis of their knowledge of his own or his sister’s activities in support of the Mujahideen.  The Tribunal did not accept that the hostility of the people in the neighbourhood where the applicant’s parents lived amounted to persecution for the purposes of the Convention.  In any event, the Tribunal was of the view that that was a local problem: the applicant and his family did not suffer problems in the area where they themselves lived.

11. Since the Tribunal did not accept that the applicant was of any interest to the authorities at the time of his departure, it did not accept that he departed Iran illegally as he claimed to have done.  In any event, the Tribunal accepted that if the applicant had left Iran illegally as he claimed, the most likely penalty for someone who had departed Iran illegally was a fine.  While the Tribunal accepted that the Iranian authorities would become aware that the applicant had applied for asylum in Australia, it concluded that the act of applying for asylum abroad is not of itself an offence in Iran.  It considered that knowledge that an individual had sought political asylum abroad will not normally result in much more than verbal harassment in Iran, unless the asylum seeker had a high opposition political profile.  The Tribunal did not accept that the applicant had such a profile.  The Tribunal did not consider that the fact that applicant’s sister was active in the Mujahideen and had been granted refugee status would lead to the applicant having imputed to him a more active involvement in the Mujahideen. 

12. Even taking into account the cumulative effect of the applicant’s own involvement in the Mujahideen, his sister’s involvement, his departure from Iran and his having applied for refugee status in Australia, the Tribunal did not consider that there was a real chance if he returned to Iran now or in the reasonably foreseeable future, that he would be persecuted by reason of any political opinion, real or imputed.

13. The Tribunal was therefore not satisfied that the applicant has a well-founded fear of being persecuted for a Convention reason if he returns to Iran.  Accordingly, the Tribunal concluded that the applicant and his family were not persons to whom Australia has protection obligations under the Convention.  As I have already said, no basis was advanced on behalf of the applicant in support of the grounds set out in his application to the Court.  I am unable to perceive any error of law in the reasons of the Tribunal.

14. Further, there does appear to have been material before the Tribunal that would justify the conclusions that it reached. It follows that the grounds relied on in the application are not made out. There is nothing before me to suggest that any of the other grounds in s 476(1) of the Act are applicable. It follows, in my opinion, that the application should be dismissed.

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

Associate:

Dated:            4 September 2001

Counsel for the Applicant:	Mr H Christie appeared pro bono
Counsel for the Respondent:	Mr P R Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	31 July 2001
Date of Judgment:	31 July 2001