Appellant B v Minister for Immigration and Multicultural Affairs

[1998] FCA 1237

FEDERAL COURT OF AUSTRALIA

MIGRATION  - well-founded fear of persecution – political opinion – membership of a particular social group – adverse findings as to credibility by Refugee Review Tribunal – whether Tribunal erred by confining consideration to persecution based on political opinion – whether persecution based on membership of particular group would have led to a wider inquiry – impact of adverse findings as to credibility – no error of law disclosed – no question of principle.

Migration Act 1958 (Cth)

APPELLANT B v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

WAG 64 of 1998

FRENCH, TAMBERLIN AND EMMETT JJ

PERTH
26 AUGUST 1998

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WG 64 OF 1998

BETWEEN: 

APPELLANT B

APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES:

FRENCH, TAMBERLIN AND EMMETT JJ

DATE OF ORDER:

26 AUGUST 1998

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1. The appeal is dismissed.

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	WG 64 of 1998

BETWEEN: 

APPELLANT B

APPELLANT

AND; 

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES:	FRENCH, TAMBERLIN AND EMMETT JJ
DATE:	26 AUGUST 1998
PLACE:	PERTH

EX TEMPORE REASONS FOR JUDGMENT

FRENCH J:

This is an appeal against the decision of Carr J delivered ex tempore on 14 May 1998 in which his Honour dismissed an application for a review of a decision of the Refugee Review Tribunal.  That decision was made on 25 July 1997 and by that decision the Tribunal held that it was not satisfied that the appellant was a refugee.  It affirmed the decision of the delegate of the Minister for Immigration and Multicultural Affairs made on 20 May 1997 not to grant a protection visa.

As his Honour said in his reasons, the appellant had asserted before the Tribunal, where he was represented by counsel, that he was entitled to the protection granted by the Convention relating to the Status of Refugees as amended by the Protocol relating to the Status of Refugees on the ground that he had a well-founded fear of persecution for reasons of his political opinions, that he was outside the country of his nationality and was unable, or owing to this fear, was unwilling, to avail himself of the protection of his country.

The appellant is a national of Iran who arrived in Australia on 6 March 1997.  He applied to the Department of Immigration and Multicultural Affairs for a protection visa on 9 April and the delegate’s decision, as I have mentioned, was made on 29 May.  The Tribunal identified the basis of the appellant’s case as a claim that he was in danger of persecution by the Iranian government because of his political opinions as expressed in his activities on behalf of the Mojahedin and other left-wing opposition groups and that he expected to be executed upon his return to Iran.

As set out in the Tribunal’s review of the evidence, the appellant told them he was a single man born in Teheran in 1964.  His father had been a judge under the regime of the late Shah.  In about 1982, while still at school, he had become interested in left-wing political groups including the Mojahedin, the People’s party and the Social Labor Communist Party.  He had attended meetings of these groups.  After a while he claimed he came to believe in the principles of the Mojahedin and the communists and although he never joined them he had decided to work for them as an informer.

As he was also in contact with members of pro-government Islamic groups, he had passed on information about their plans and policies and gave warning of impending raids on Mojahedin and communist houses.  He is said to have paid money to have members of Mojahedin released from prison.  He had made money by selling banned anti-government books on behalf of a clandestine publishing organisation.  According to his evidence as reviewed by the Tribunal, he had claimed to be the subject of apprehension and torture and indeed mock execution on more than one occasion by the Iranian authorities.

It is unnecessary, for the purposes of these reasons, to canvass in detail the evidentiary material before the Tribunal but rather to go straight to its findings, particularly in relation to the credibility of the appellant.  The Tribunal stated that the application raised many questions of credibility.  As a general proposition it agreed with the delegate’s observation that the appellant’s case as expressed in writing and as put at interview and the hearing was framed at a level of generality which was inconsistent with the knowledge that one would expect a person in his position to possess if his story were true.

He was unable to respond convincingly to requests to be specific, for example, in naming Islamic groups whose meetings he allegedly attended.  His answers to questions were said to have been generally vague and not to the point and he had great difficulty in explaining how he came, as a youth at school, to gain the trust of both pro and anti-government groups to the point that he was able to attend their meetings and become privy to highly secret information.  There was a comprehensive review by the Tribunal of the evidence and the difficulties in that evidence that led to its general conclusion as to his credibility.  The key paragraphs in its conclusions were as follows:

“The Tribunal considers that the applicant’s account is marred by many very serious flaws as to credibility, to the extent that it cannot be believed.  The Tribunal rejects the substance of the applicant’s account and finds that the applicant has not had any significant involvement with the Mojahedin or any other anti-government group; that he is not suspected by the authorities of any such involvement; that he has not experienced any difficulties with the Iranian government on account of real or imputed political opinion; and that the authorities are not currently seeking him for such a reason.”

Then further:

“The Tribunal agrees with the applicant and his advisor that the human rights record of the Iranian authorities is extremely poor, and that a person seriously suspected of having links to the Mojahedin would stand a very high chance of suffering persecution in Iran.  In a sense, however, it is this very fact that weakens the applicant’s case, since it makes it impossible to understand how he was able to remain at liberty in Iran for so long when his profile was allegedly well known.

On the facts as found by the Tribunal, the applicant has not had any significant connection to the Mojahedin or other anti-government groups and has not had any trouble from the authorities because of such a connection.  He has been a farmer and a bookseller and has been relatively prosperous in both occupations.  He has been able to leave the country on his own passport with no difficulty.  I can find no credible basis for inferring that he faces a real chance of persecution.”

Then in conclusion:

“The Tribunal finds that the applicant does not face a real chance of persecution in Iran at the present time or in the foreseeable future for any Convention reason or reasons.  Therefore he does not have a well-founded Convention-related fear of persecution.”

In considering the grounds upon which it was sought to review the Tribunal’s decision, his Honour made the point, as he had explained to the appellant at the outset of the hearing, that the hearing before him was a review of what the Tribunal had done which was to ensure that it had acted in accordance with the law and that included examining whether it had acted fairly according to substantial justice and the merits of the case.

His Honour then turned to the formal grounds of review, of which there were at that time seven, and considered each of those grounds and concluded that the Tribunal had acted according to substantial justice and the merits of the case.  In addressing the seventh ground, which was that the Tribunal member had incorrectly interpreted or applied the terms of the Migration Act 1958 (Cth) when determining whether the appellant had a well-founded fear of persecution within the meaning of that term as used in the Refugees Convention, his Honour said that in his view the Tribunal had correctly identified the legal principles applicable to the decision and correctly applied them. The key to the matter was that it disbelieved the appellant and having made that decision against him on the matter of credibility, dismissed his claims upon which the application for the protection visa was based.

It is that issue, the issue of the Tribunal’s determination as to the credibility of the appellant and the facts of the matter in relation to his claims, that lies at the heart of this case.

The Court at the outset of the hearing of the appeal allowed the appellant to substitute, by counsel, a notice of appeal in lieu of that which had been handwritten by the appellant himself.  As was said by the Court earlier, that was a substitution of a notice of appeal which tried to focus the legal issue raised on behalf of the appellant in a way that fell within the fairly broadly expressed grounds of the original amended application before his Honour.   It certainly was of considerably greater assistance to the Court than that which had been lodged by the appellant in person.  The grounds of the substituted notice of appeal are briefly expressed:

“The learned Judge erred in law in that he failed to address the correct legal question or incorrectly applied the law to the facts in that:

1.The Refugee Review Tribunal (RRT) failed to take into account and give any or proper consideration to the question of whether the applicant had a well founded fear of being persecuted by reason of membership in a particular social group.

2.The learned Judge adopted the decision of the RRT and failed to address the correct legal question of the membership of the applicant in a particular social group.”

In the submissions put on behalf of the appellant, the grounds were elaborated thus:

.The real question to be determined by the RRT and the learned Judge was whether the appellant had a well founded fear of persecution because of political opinions or membership in a particular social group.

.The decision of the RRT and the learned Judge did not consider whether the applicant was a refugee because of a well founded fear of being persecuted by reason of membership of a particular social group.

.Being a supporter of the Mojahedin and other groups opposed to the government is membership in a particular social group.

.The appellant fears persecution not because of what he has done but because he was a member of a particular social group.

.Supporters of the Mojahedin are subject to persecution by reason of membership of a particular social group.

.The RRT had a duty to raise, consider and determine whether, having regard to the applicant’s claim and the evidence before it, he was a member of a particular social group.

.The RRT must concentrate on an applicant’s story to see why his fear of persecution developed.

.If the evidence raised facts, which if true, would mean that the applicant was a member of a particular social group, there was a duty on the RRT to consider all the matters required by the legislation.

Notwithstanding the strong findings adverse to the credibility of the appellant which were made by the Tribunal, counsel for the appellant contended that they were made in the context of an inquiry limited by the basis of the case for the appellant as identified in the Tribunal’s reasons; namely, a well-founded fear of persecution because of his political opinions.  Confined to that basis as it was, the Tribunal’s inquiry, it was said, did not consider matters and perhaps even additional evidence that might have been available on the question of whether the appellant was a member of a particular social group and had or could be said to have had a well-founded fear of persecution by reason of that fact.

The Court, however, is of the view that the findings of credibility made by the Tribunal in the passages referred to earlier undercut the point sought to be made by counsel for the appellant, for those findings do not go only to the question whether the appellant held any particular political opinion and could be said to have had by reason of that opinion a well-founded fear of persecution.  They go also to the question of his connection with the Mojahedin or any other anti-government group.  For the Tribunal found that he has not had any significant involvement with the Mojahedin or any anti-government group and that he is not suspected by the authorities of any such involvement.

In addition, the Tribunal found that the appellant had not experienced any difficulties with the Iranian government on account of real or imputed political opinion and that they are not currently seeking him for such a reason but, more widely than that:

“…the applicant has not had any significant connection to the Mojahedin or other anti-government groups and has not had any trouble from the authorities because of such a connection.  He has been a farmer and a bookseller and has been relatively prosperous in both occupations…”

The Tribunal found no credible basis for inferring that he faced a real chance of persecution.  On the basis of the Tribunal’s findings, further inquiry into the existence of a well-founded fear of persecution by reason of links to the Mojahedin or anti-government groups and whether or not such links might constitute membership of a wider social group comprising the Mojahedin or other anti-government groups and their supporters, would be futile because the findings themselves negate the existence of the kind of association for which the appellant contended.  They also negate the existence of any basis for a well-founded fear of persecution.

The appeal should therefore be dismissed.  The Tribunal did not err in law in its approach to the disposition of this matter, nor did his Honour err in law in his review of the Tribunal’s decision.  In so saying the Court takes the opportunity to express its thanks to Mr Stein who provided representation for the appellant at the request of the Court.  The best case that could be put for the appellant was put and Mr Stein has said everything that could be said in support of it.

TAMBERLIN J:

I agree with the reasons and the orders proposed by his Honour, the presiding judge.  I do not think this is an appropriate case in which to make any award as to costs and I join in his Honour’s statements in relation to the assistance which the Court gained from Mr Stein and counsel for the respondent.

EMMETT J:

I agree and do not wish to add anything.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:            26 August 1998

Counsel for the Appellant	Mr L.A. Stein
Counsel for the Respondent:	Mr P.R. Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 August 1998
Date of Judgment:	26 August 1998