Applicant C v Minister for Immigration and Multicultural Affairs

[2001] FCA 1657

FEDERAL COURT OF AUSTRALIA

Applicant C v Minister for Immigration and Multicultural Affairs [2001] FCA 1657

APPLICANT C v MINISTER FOR IMMIGRATION AND MULTICULTURAL
AFFAIRS

W188 OF 2001

CARR J
22 NOVEMBER 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W188 OF 2001

BETWEEN:	APPLICANT C Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	CARR J
DATE OF ORDER:	22 NOVEMBER 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application be 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
WESTERN AUSTRALIA DISTRICT REGISTRY	W188 OF 2001

BETWEEN:	APPLICANT C Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	CARR J
DATE:	22 NOVEMBER 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 30 April 2001, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant.  The applicant, who is a citizen of Iran, arrived in Australia on 23 December 2000.  On 21 January 2001 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) (“the Act”). On 12 February 2001 a delegate of the respondent refused to grant a protection visa and on 14 February 2001 the applicant applied for review of that decision.

   THE APPLICANT’S CLAIMS AND THE TRIBUNAL’S DECISION

2. The applicant’s claims, in summary, were as follows:

   ·     He was of Persian ethnicity, a Shi’a and was 36 year of age.  He was married with one child.  His parents were deceased and he has five sisters and three brothers;

   ·     He had seven years of education and finished school in 1978.  He did military service between 1984 and 1986, then worked as a chauffeur for five years, following which he worked as a clothing salesman for six years;

   ·     He lived at the same address in Ahwaz from 1990 until September 2000;

   ·     Between November 1997 until August 2000 the applicant worked as a driver for the Komiteh Jostejodyeh Mafghoodin, a group which recovered bodies of people killed during the Iran-Iraq war.

   ·     He discovered that some of that group were digging up old graves of civilians and political prisoners who had been executed, to satisfy the quota of missing soldiers which they had to recover.  They would then make up false identification tags for the bodies sent to Teheran;

   ·     The applicant states that around the time that he made this discovery he also discovered that the authorities were constructing or had constructed some concrete buildings over the Iraqi border and he saw people being taken to them in covered cars;

   ·     He was working with a maternal cousin.  He and his cousin became concerned about these matters and the applicant mentioned them to some Basiji officials;

   ·     The next day his cousin vanished and the applicant was told by a work colleague that the cousin had been killed because of what he knew and that he (the applicant) should escape from Iran because he was going to be killed as well;

   ·     He waited at his place of employment from about midday to 7.30 pm when it was dark and then went to Isfahan where he stayed with one his sisters for 3 to 3½ months.

   ·     With the assistance of a people smuggler he was smuggled out of Iran to Pakistan where he obtained a Pakistani passport.

   THE TRIBUNAL’S DECISION

3. Rather than attempt to summarise the Tribunal’s findings and reasons, I set them out below.  I have added numbers to the paragraphs to facilitate the references which I make later in these reasons.

   “FINDINGS AND REASONS 

   1.  The applicant claims that if he returns to Iran he will be persecuted because he found out that the remains of civilians were being passed off as those of martyrs and that there was a particular building at the Iran/Iraq border. In assessing the applicant's Convention claims I am required to determine whether he has a well-founded fear and if so whether what he fears amounts to persecution for a Convention reason.

   2.  When determining whether an applicant is entitled to protection in Australia the Tribunal 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, the Tribunal 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, the Tribunal is not required to accept uncritically any and all allegations made by an applicant. In addition, it is not necessary for the Tribunal to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. Moreover, the Tribunal is 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 MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J. See also Shu Min Pan v MIMA, (unreported, Federal Court 23 January 1997 RD Nicholson J at p 10), Chan per McHugh J at 428 and Kopalapillai v MlMA (1998) 86 FCR 547. If the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true. (See MlMA v Rajalingam (1999) FCR 220).

   3.  I accept that the applicant is an Iranian national. I further accept that he worked for an organisation called the Komiteh Jostejodyeh Mafghoodin (Committee for Searching for Missing Persons). I accept that the Committee's role was to find the remains of "martyrs" - that is, soldiers who were killed in the Iran-Iraq war. I accept that the applicant operated heavy machinery and that sometimes drove an ambulance. However, in my view, significant aspects of the applicant's evidence were inherently implausible and internally inconsistent. I do not consider that the applicant gave credible and reliable evidence in relation to those matters on which he has based his claims for refugee status.  

   4.   Firstly, the applicant claimed that a group of ten Committee employees were involved in digging up the remains of civilians and passing them off as the remains of martyrs. He claimed that this was a secret operation that was only carried out by the ten people involved, who he characterised as "from the leadership". The applicant claimed that he knew there were ten people involved in this operation because he lived with them and because he and his cousin did not know what they were up to in relation to their change of shifts. In my view, this explanation is not comprehensible. It does not explain how the applicant knew that there were ten people involved in the alleged secret operation. 

   5.  Secondly, the applicant's explanation for how he came to find out about the so-called operation lacks credibility. The applicant stated that he and his cousin were in the ambulance, were told to drive to a particular town and were asked to wait. During the hours in which they were waiting, two or three people went to a cemetery to dig up graves. The applicant claimed that he drove the ambulance back to the site and saw the sacks being placed in the tent where dug up remains are kept. In my view, if there were a secret operation as claimed by the applicant, it is implausible that he and his cousin would have been put in a situation where they could even guess what was going on. The applicant gave two explanations for why he and his cousin were exposed to the operation in this way. He stated that the people doing the digging needed him to drive for them and that he was a better driver than other people were. The applicant also claimed that the people concerned trusted his cousin. In my view neither of these explanations adequately explain why the applicant and his cousin would be exposed to a secret operation that no one else was supposed to know about. 

   6.  Thirdly, the applicant's account of his cousin's alleged disappearance and his own escape from the work site also lacks credibility. According to the applicant, against his cousin's advice he told some Basiji what was happening in relation to civilian remains being mixed with those of martyrs and these Basiji then went to tell the boss. The applicant claims that he found out that this had occurred, went back to his cousin who told him to do nothing and then went to work. The applicant claims that he went to work, came back at midday to be told that his cousin had been taken away and would be killed. He states that he then remained at the work site until it was dark - a period of more than seven hours before he escaped. The applicant claimed that the people who took his cousin were the people who had dug up the remains of civilians. He claimed that they took his cousin because of the information his cousin had about their activities. 

   7.  In my view, it is inherently implausible that the applicant's cousin would have been detained, but that the people who detained him would not also have detained the applicant. In relation to this, I note that according to the applicant, he was at work during the morning on which his cousin was allegedly taken. He was then back at the living quarters for over seven hours before he left. In my view, if anyone had wanted to detain him, they had ample opportunity to do so at the same time or shortly after they detained his cousin. The applicant claimed that the people concerned were not aware that he had the same information as his cousin. This explanation lacks credibility, particularly in view of the applicant's evidence that he was the one who passed on the information to the Basiji. The applicant also claimed that his cousin might have been interrogated for a long time. In my view, this explanation also lacks credibility. If the people who wished to detain the applicant knew that he had information about their activities, there would be no need for them to interrogate his cousin at length before detaining the applicant.  

   8.  Fourthly, the applicant's evidence concerning his cousin's alleged disappearance is internally inconsistent. In his application for a protection visa, the applicant claimed that he was told that his cousin had been killed. However, the applicant changed his evidence during his departmental interview and has since claimed that he was told that his cousin had disappeared and would be killed. The applicant has provided no satisfactory explanation for the change in his evidence in this regard.  

   9.  Fifthly, the applicant claims that for three and a half months after this incident he stayed with his sister in Isfahan. In my view, if anybody had had any interest in detaining the applicant, they had ample opportunity to do during that period. I do not consider that living with one's sister for three and a half months constitutes being in hiding. The applicant claimed that no one knew his sister's address. In my view, some basic investigative work would have revealed the names and addresses of the applicant's close relatives. If the authorities had been looking for the applicant it would have been obvious for them to search for him in the homes of his nearest relatives, including his sister.  

   10.  Overall, I find the applicant's evidence concerning the alleged secret operation, his discovery of it and the claimed disappearance of his cousin to lack credibility. Whilst I accept that the applicant worked for the Committee, I am not satisfied that any secret operation to pass off the remains of civilians for those of soldiers killed during the war actually existed. I am therefore not satisfied that the applicant discovered that it was happening, that his cousin disappeared and has since been killed because he knew about this operation, or that the authorities went to the applicant's home looking for him. I am of the view that the applicant has fabricated his claims in an attempt to create for himself the profile of a refugee. I am not satisfied that the applicant was of any adverse interest to the Iranian authorities or anyone else at the time he left Iran, or that he is of any interest to them currently. As I have rejected the applicant's claims on the facts, there is no basis on which I could be satisfied that his claims could give rise to a well-founded fear of persecution in the reasonably foreseeable future.  

   11.  The applicant also claimed that he was aware that high-ranking Iranian officials were going to buildings built on the Iran-Iraq border in "covered cars". He claimed that this meant that Iranian officials were going over the border into Iraq on secret operations. The applicant also claimed that he was told he would be killed if the authorities knew that he had this information. In my view, the applicant's evidence on this point was confused and fanciful. The applicant did not adequately explain how he knew that high-ranking officials were going into these buildings, or how he knew what these high-ranking officials were involved in secret operations in Iraq, or what these secret operations were. I cannot be satisfied that the applicant's claims in relation to these matters give rise to a well-founded fear of persecution. 

   12.  The applicant has not claimed to fear persecution on the basis that he left Iran illegally or that he has applied for refugee status in Australia. For the sake of completeness, I have nevertheless considered whether he has a well-founded fear of persecution for these reasons. As I do not accept that the applicant was of any adverse interest to the authorities at the time he left Iran, I am of the view that there was no reason for him to leave Iran illegally. I consider it likely that the applicant in fact left Iran legally, using a passport in his own name. However, even if the applicant did leave Iran illegally, the independent evidence suggests that the harshest penalty he would be likely to face would be a fine. The evidence before me does not suggest that any harsher penalty than a fine would be imposed on the applicant, or if one were imposed that this would be for a Convention reason. I therefore do not consider that the applicant's illegal departure gives rise a well-founded fear of persecution for a Convention reason. 

   13.  In relation to applying for refugee status, the independent evidence before me, which I accept, does not suggest that the applicant would face any serious problems on this basis. I cannot be satisfied that the fact that the applicant has applied for refugee status in Australia gives rise to a well-founded fear of persecution for a Convention reason.

   CONCLUSION

   Having considered the evidence as a whole, I am not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. He therefore does not satisfy the criterion set out in s 36(2) of the Act for a protection visa.”

   GROUNDS OF THE APPLICATION AND MY REASONING

4. The applicant does not appear to have had legal assistance in drafting his application.  I set out below the grounds of review exactly as they appear in that document:

   “1.Procedures that were required by the Migration Act to be observed in connection with the making of the decision were not observed.

   2.That the decision involved an error of law being an error of law involving and incorrect interpretation of the applicable law or an incorrect applic of the law to the facts as found by the person who made the decision.

   3.There was no evidence or other material to justify the making of the decision.”

5. The applicant was not legally represented when the application first came on for hearing before me on 16 October 2001.  In oral address he raised three matters.  They were as follows: 

   1.That he had “pieces of paper” which showed that he was working “in those areas” (which was clearly a reference to his work with the Committee for Searching for Missing Persons) which he wanted to show to the Tribunal, but which he had been prevented from taking to the hearing before the Tribunal.

   2.The Tribunal did not pay any attention to the fact that the applicant had photographs which he wanted to show to the Tribunal.  The applicant said that those photographs showed the difference between a corpse “… that belonged to a normal person and another one that belonged to a martyr.”

   3.That he had told the Tribunal that he had telephoned Iran to find out about his cousin and had been told that his cousin was dead, and the Tribunal had not paid any attention to that evidence.

6. After some discussion with counsel for the respondent, I made orders giving leave to the respondent to file and serve affidavit evidence about the photographs to which the applicant had referred and annexing a transcript of the proceedings before the Tribunal.  I also gave leave to the applicant to file and serve any document responding to such affidavit within seven days of service upon him.  I adjourned the hearing of the application to a date to be fixed. 

7. The respondent has filed an affidavit annexing a transcript of the hearing before the Tribunal on 11 April 2001. 

8. I have read that transcript and I set out below the relevant passages:

   Page 20:

   [Applicant]:  “And I want to explain that the paperwork in regards to my mission, to my job in the area have been faxed to my solicitor and he has said that he can translate them and send them to the Immigration.  And the photographs that I have taken of the remains, the corpses, have been in the area I was working, they have sent them to me but I haven’t received them as yet.”

   Pages 29-30:

   [Applicant]: “I wanted to say that my documents and photographs, I haven’t received them as yet.  My brother has sent them to me but I haven’t received them.  And in regards to the paperwork of my past, my brother has faxed them to my solicitor.  And I would like to ask you to make a serious decision and a correct decision in regards to me because I truly cannot return.” 

   [Tribunal Member]:  “So there is documents and photographs – I just want to see if I have got this right.  These documents are documents confirming that you worked for the committee.”

   [Applicant]:  “The documents are actually … in regards to my task working for this committee.  And the photographs are both from the corpses, from the remains, as well as the place of my employment, place that I work.”

   [Tribunal Member]:  “Right.  So these are photographs that you took during the course of your employment with the committee?”

   [Applicant]:  “Yes”.

   [Tribunal Member]: “Okay.  Well, as I said to you, I accept that you worked for the committee.  That is not the problem that I have with your case.  Okay?  Is there anything else that you need to tell me?”

   [Applicant]:  “No”.

   Page 26:

   [Applicant]:  “I didn’t ring at all until after I met the case officer …”.

   Page 28: 

   [Applicant]:  “After I met my case officer I rang my brother.  I rang my brother’s mobile.  And my cousin has been declared as a martyr and he was given back to his family.”

9. In my opinion, so far as this application is concerned, nothing turns upon the documents which, on the applicant’s case, showed that he was working for the Committee Searching for Missing Persons.  The Tribunal accepted that he was so employed – see paragraph 3 of its findings.

10. The next matter relates to the photographs.  The applicant’s evidence before the Tribunal, which I have set out above, was that his brother had sent him photographs which the applicant had taken, during the course of his employment, of human remains and corpses, but that he had not received those photographs. 

1. At the hearing before me on 16 October 2001 the applicant claimed that those photographs would make the distinction to which I referred at paragraph 5 above.  However, he made no such claim before the Tribunal.

2. In my view, the Tribunal was entitled, in those circumstances, to proceed to make its decision in the absence of those photographs i.e. it was not obliged to adjourn and provide a reasonable opportunity for the photographs to arrive from Iran. 

3. The situation might have been different if the applicant had explained to the Tribunal that the photographs showed the distinction between civilian and military remains and perhaps explained how they could do this.  That might have had some possible bearing on the applicant’s credibility. 

4. However, that was not how the evidence emerged before the Tribunal and, in my opinion, no reviewable error has been disclosed in relation to the matter of the photographs.  In any event, at the resumed hearing today the applicant stated that he had still not received the photographs.  By recent enquiries, he had found out that they had been posted but he did not know where the postal authorities delivered them. 

5. The applicant’s next point was that the Tribunal had not paid any attention to his evidence that at a time between meeting his case officer and the hearing before the Tribunal he had rung his brother and been told that his cousin had been killed. 

6. The Tribunal dealt with this matter at para 8 of its reasons where it described the applicant’s evidence concerning his cousin’s alleged disappearance as being internally inconsistent.  This was because, so the Tribunal reasoned, in the applicant’s application for a protection visa he claimed that he was told that his cousin had been killed.  However, the applicant changed that evidence during his departmental interview to a claim that he was told that his cousin had disappeared and “would be killed”. 

7. It is true that the Tribunal made no reference to the applicant’s evidence of a subsequent telephone call to his brother in Iran during which, on the applicant’s case, he was told that his cousin had been “… declared as a martyr and … given back to his family.”

8. In my view, the Tribunal’s failure to refer to the applicant’s evidence about this telephone call does not amount to reviewable error either of law or relating to its jurisdiction. 

9. At the resumed hearing today the applicant raised four further matters.  Two of these matters were, respectively, a complaint that there was an inconsistency in the Tribunal’s reasons, and a misunderstanding on the Tribunal’s part about his claims in relation to the substitution of bodies.  I am satisfied that these two complaints are based on a misunderstanding by the applicant of the content of the Tribunal’s reasons.  A third matter raised by the applicant (but not the third in the sequence), was a complaint that he had mentioned to the Tribunal that political prisoners had been taken into the area where he worked and had been executed, but that there was no mention of this in the Tribunal’s reasons.  This claim appears in the written submissions made to the Tribunal by the applicant’s solicitors.  Its relevance was as a further source of grave sites from which non-military bodies were said to have been taken for substitution purposes.  The fact that these political prisoners had been executed in the area previously was not a basis of the applicant’s claims of persecution for a Convention reason.  In my view, the Tribunal was not obliged to make any reference to this additional source of non-military bodies for substitution purposes. 

10. The fourth point related to the comment made in paragraph 9 of the Tribunal’s reasons about how easily the Iranian authorities could have obtained the addresses of the applicant’s close relatives including that of his sister in Ifsahan with whom he claimed to have taken refuge for three and a half months.  The applicant sought to raise a factual issue based on what he claimed was a misapprehension by the Tribunal of his evidence to it.  That point, in my opinion, does not raise any reviewable error on the Tribunal’s part and, in my view, was based again on a misunderstanding by the applicant of the Tribunal’s reasoning process.

11. I have examined the Tribunal’s reasons to see whether anything in them otherwise discloses reviewable error on its part. 

12. In the introductory part of its reasons the Tribunal set out the relevant law correctly and there is nothing later in its reasons to suggest that it did not apply the law as earlier recited.

13. The basis for the Tribunal’s decision was simply that it did not believe the applicant’s claims in respect of the alleged secret operation to pass off the remains of civilians as those of soldiers killed in the Iran-Iraq war.  This can be seen in the third to tenth paragraphs of its findings and reasons.  In relation to the claim concerning high-ranking Iranian officials going to buildings on the Iran-Iraq border in “covered cars”, the Tribunal found that the applicant’s evidence was “confused and fanciful” (see paragraph 11).  In my view, this also amounts to a rejection of that claim on credibility grounds.

14. In my opinion, the Tribunal’s conclusion that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention was open to it on the material before it. 

15. In my view, the Tribunal made no reviewable error whether error of law or jurisdictional error.

    CONCLUSION

16. As no jurisdictional error, error of law or any other reviewable error has been disclosed, the application will be dismissed with costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

A/g Associate:

Dated:             22 November 2001

The Applicant appeared in person:
Counsel for the Respondent:	Mr A A Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 October, 22 November 2001
Date of Judgment:	22 November 2001