Ahmady, Akbar B v Minister for Immigration and Multicultural Affairs

[1998] FCA 780

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1131  of  1997

BETWEEN:	AKBAR B. AHMADY Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:		EMMETT J
DATE OF ORDER:		22 JUNE 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed with 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	NG 1131  of  1997

BETWEEN:	AKBAR AHMADY Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	EMMETT J
DATE:	22 JUNE 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:   I have before me an application for an order of review of a decision of the Refugee Review Tribunal given on 28 November 1997.  Akbar Ahmady (“the Applicant”) is a citizen of Iran who arrived in Australia in November 1994.  On 18 April 1995 he lodged an application for a Protection Visa.  On 31 December 1996 a delegate of the Minister refused to grant the Protection Visa and on 28 January 1997 the Applicant sought review of that decision via the Refugee Review Tribunal.  The decision given on 28 November 1997 was to affirm the decision not to grant a Protection Visa. 

The grounds specified in the application are as follows:

1. the procedures that were required by the Migration Act 1958 to be observed in connection with the making of the decision were not observed;

1. the decision involved an error of law involving an incorrect interpretation of the applicable law or an incorrect application of the law to the factors found by the person who made the decision;

1. there is no evidence or other material to justify the making of the decision. 

Those grounds correspond with paragraphs 476(1)(a), (e) and (g) of the Migration Act 1958 (Cth) (“the Act”). The essence of the reasoning of the Tribunal was that the Tribunal did not accept that the evidence of the Applicant was credible. It was contended on behalf of the Applicant that the Tribunal erred in concentrating its findings on the Applicant's lack of credibility and that the result of such concentration has been a failure to take the first necessary step for a finder of fact in such a matter, namely an examination of the Applicant's subjective belief in an open-minded way.

Reference was made to the decision of the Full Court in Eshetu v  Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 (at 313):

I do not suggest that attention may not be given by a Tribunal to the objective facts or that an applicant's claim may not be rejected as being inconsistent with objectively known facts.  Of course, that may occur.  There have been many decisions of Refugee Review Tribunals which have come before the Court where a Tribunal has rejected an applicant's story as implausible in the light of known facts.  In numerous cases, the Court has declined to interfere, taking the view that the facts are for the decision maker of fact. 

The present, however, is a different type of case.  Mr Eshetu gave to the Tribunal a detailed individual story which, at least insofar as it affected him, was not inconsistent with known facts at the relevant time.  The Tribunal ought not to have rejected Mr Eshetu's claim without coming to a view, if it could, as to whether Mr Eshetu had been a member of the student Council as he alleged, whether he had suffered injury to his leg as he had said, whether he had left the University in December 1991 as he said, whether he had hidden in his elder brother's house thereafter and whether he had left Ethiopia because of persecution by the government's forces.  The failure to do so discloses an error of approach to a misunderstanding of the meaning and operation of the term “well founded fear”. 

It follows that the Tribunal's decision involved an error of law, being an error involving an incorrect interpretation of the applicable law.

However, in the present case such criticism cannot be levelled at the approach taken by the Tribunal.  The Applicant's case before the Tribunal was that his life would be in danger if he returned to Iran.  It was said that the danger was either from the Mojahedeen or from the Pasdaran (or revolutionary guards).  The Applicant's evidence was that, as a member of the Pasdaran, he collected information about individuals and organisations opposed to the Islamic regime in Iran.  He monitored members of the Mojahedeen.  He said that he continued his activities with the Pasdaran until the time he left Iran and that he left Iran because he received a telephone call from members of the Mojahedeen stating that they knew he was a member of the Pasdaran and they would kill him if he did not co-operate with them.  His contention was that his life would be in danger upon return because he would be killed by the Mojahedeen or the Pasdaran.  He would be killed by the Mojahedeen because he had been working with the Pasdaran or would be killed by the Pasdaran because he had stopped working for them and left the country.  The Tribunal rejected both contentions. 

So far as the fear of the Mojahedeen is concerned, the Tribunal found that the Applicant does not now seriously rely on those aspects of his claims because his fear of the Mojahedeen has "almost vanished."  Further, the Tribunal rejected as implausible an incident said by the Applicant to have occurred before he left Iran.  He said that in 1994 he was contacted by telephone by the Mojahedeen.  The Mojahedeen stated that they wanted the Applicant to give them the names of the Applicant's colleagues, his commander, and a rough plan of the Pasdaran Headquarters.  The Applicant immediately told his commander about the telephone call.  The commander told the Applicant not to worry too much about it and that he should try and get information when the Mojahedeen called next.

Ten days later the Mojahedeen called the Applicant's home and made the same request. Arrangements were made to meet at an appointed time and place.  On the order of his commander, the Applicant went to the appointed place at the appointed time.  He waited for some time but no-one showed up.  The Applicant and his colleagues, who had been placed in discreet places at the location, made their way back to their barracks.  When they were crossing the road near the barracks, a car sped up and hit the Applicant then sped away.  The Applicant was injured and remained in hospital for about four days.  The Applicant claimed that the driver of the car was from the Mojahedeen and that he was being targeted.

The Tribunal rejected that story on two grounds.   The first was that it had never been mentioned by the Applicant before the Tribunal hearing.   In written claims made to the department and at an oral interview no mention had been made of the incident.   In the written application to the Tribunal for review, again, no mention was made.   The Tribunal found it unlikely that a matter of such significance would not have been mentioned on the earlier occasions, had it occurred.  

Secondly, the Tribunal noted that the Mojahedeen, which is referred to in the Tribunal's reasoning as MKO, is Iran's largest opposition group which supports clandestine resistance in Iran.  The Tribunal found that the MKO is still regarded as a major threat to security and stability by Iran and that the government has a tendency to blame the MKO for just about every security incident that occurs.  However, the Tribunal's finding was that, by and large, the MKO is not currently very active in Iran, and that it had declined in importance in recent years.

Given the lack of activity by the MKO in Iran, coupled with the very effective operation of the Iranian security apparatus in crushing the MKO as the Tribunal found, the Tribunal considered that it was implausible that a member of the MKO would make contact on two occasions by telephone with a member of the Pasdaran such as the Applicant, as claimed by the Applicant.

The alternative fear which the Applicant asserted was that he would be taken to task by the Pasdaran for having left Iran illegally.   However, the Tribunal noted that the Applicant's behaviour in the past has given no indication whatsoever of an inclination to support the Mojahedeen.   On the contrary, the Tribunal found that the Applicant appeared to have worked diligently for the Pasdaran for four years.  According to his claims, he was well treated by the Pasdaran and valued by them.   The Tribunal found it implausible, therefore, that the Pasdaran would suspect a valued member of their ranks of having suddenly developed MKO sympathies simply because of a failure to return to Iran after having been abroad.

The Tribunal accepted that the Applicant had left Iran illegally.   The Tribunal found, however, that the evidence available to it suggested that it is virtually impossible to leave Iran through the airport in Teheran, if one is wanted by the authorities.   With so many different checks, it would be impossible, so the Tribunal, found for anyone to bribe their way through an airport to effect departure.   On the other hand, the Tribunal did accept that the Applicant was able to use bribery to obtain his passport and exit Iran illegally.   Iranian law imposes a fine or prison sentence of up to 12 months for illegal departure.

It was contended on behalf of the Applicant that those findings were inconsistent.   I do not accept that  contention.   As I read the Tribunal's reasoning, it was saying that, while it may be possible to obtain a passport and depart Iran illegally by means of bribery, it was not possible to do so if one was wanted by the authorities.   The Tribunal found, therefore, that it was implausible that if the Applicant was, in fact, wanted by the Pasdaran, he would have been able to leave Iran illegally.  It may well be, of course, that that is not the finding which the Tribunal made.  

The fear which the Applicant has is that, because he stayed away, he would be taken to task by the Pasdaran.  However, as the Tribunal says, there is no reason to think that the Pasdaran would think badly of him simply because he remained abroad in circumstances where he has done nothing since his departure from Iran to suggest any opposition to the current regime.   The Tribunal found that the Applicant may well be punished upon his return to Iran, but only because of his contravention of the municipal law of Iran, not for any reason associated with the matters which are referred to in the Convention.

Those findings and conclusions by the Tribunal appear to me to be well within the bounds of the conclusions of primary fact which have been made by it.   I do not consider that the approach taken by the Tribunal falls within the passage from Eshetu to which I have referred.   Indeed, the Tribunal has done precisely what Davies J in that passage suggested should have been done.  That is to say, it considered each of the specific allegations made by the Applicant and dealt with them accordingly.

I do not consider that there was any failure to comply with the procedures required by the Act to be observed. In particular, I do not consider that there has been a failure to comply with section 420. Nor do I consider that the reasons display any error of law. I do not understand that the ground that there was no evidence to justify the making of the decision has been seriously pressed.

In the circumstances, I do not consider that any ground of review has been established, and accordingly the application should be dismissed with costs.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett

Associate:

Dated:            22 June 1998

Counsel for the Applicant:	S.C. Churches
Counsel for the Respondent:	P.S. Braham
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15, 17, 22 June 1998
Date of Judgment:	22 June 1998