Bahambari v Minister for Immigration and Multicultural Affairs

[2001] FCA 1338

FEDERAL COURT OF AUSTRALIA

Bahambari v Minister for Immigration & Multicultural Affairs [2001] FCA 1338

GHORBAN ALI BAKHSHI BAHAMBARI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 213 OF 2001

HILL J
22 AUGUST 2001

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	213 OF 2001

BETWEEN:	GHORBAN ALI BAKHSHI BAHAMBARI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	22 AUGUST 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the costs of the respondent Minister.

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	213 OF 2001

BETWEEN:	GHORBAN ALI BAKHSHI BAHAMBARI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	22 AUGUST 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant, Mr Bahambari, is a national of Iran.  He arrived in Australia on 10 October 2000 and applied for a protection visa on 1 November 2000.  His application for a protection visa was refused and he applied for a review of that decision by the Refugee Review Tribunal (the “Tribunal”).  It is a criterion, for the grant of a protection visa, that the applicant is a person to whom Australia has protection obligations under the United Nations 1951 Convention Relating to the Status of Refugees as affected by the subsequent 1967 Protocol Relating to the Status of Refugees, which are herein compendiously referred to as the “Convention”.

2. In general terms, Australia will have protection obligations under the Convention if the person applying is a refugee as defined in article 1A(2) of the Convention.  A refugee is defined to be a person who:

   “… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a political social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…”

3. The Tribunal was not satisfied that the applicant was, within the meaning of that definition, a refugee. 

4. Before the Tribunal, the applicant put his case on two bases.  The first was that he was at risk of persecution in Iran because of political opinion imputed to him.  He claimed that it was believed that he was a supporter of the Mojahedin (the “MEK”).  The second basis upon which he put his claim was that he had converted to Christianity and for that reason, if returned, would suffer persecution.

5. His case for persecution on the ground of imputed political opinion turned upon a number of matters to which he referred.  These included that he had worked in a shop owned by a man whose son Reza, a friend of Mr Bahambari, was a member of the MEK.  The man in fact was said to have been ultimately sentenced to imprisonment and the son arrested and later killed.  Another matter upon which he relied related to the making of what the Tribunal referred to as a “sign”.  This, he said, ultimately caused him to be placed in detention and tortured.

6. Ultimately, Mr Bahambari went to Korea where he remained from 1995 until 1998 and worked there as a carpenter.  He later returned to Iran because his mother was sick.  Although it seems his visa had long since expired while he was in Korea, he was given a travel document by the Iranian authorities in Korea, who it was said had refused to renew his passport, which caused him trouble in China when he passed through that country.  He said that when he returned to Iran he was arrested, detained and tortured.  He said that his father, as a result, committed suicide.  He was then released and later decided to leave Iran.  He said he had driven to Turkey where he acquired a false Italian passport on which he had travelled to Thailand and thence to Australia.

7. He claimed that he had first become interested in Christianity in Korea.  He said he had gone to church there.  When he came to Australia he said he had done a Word of Life Bible Correspondence Course through a school in Sydney, and had gone to church three times.  It seemed that by late February 2001, Mr Bahambari had commenced attending church services at the detention centre every Sunday.  Before the Tribunal gave its decision, he had completed the Word of Life Bible Correspondence Course and had received a Certificate of Baptism dated 15 April 2001 from the Port Hedland Uniting Church.

8. The Tribunal’s reasons point to numerous discrepancies between the account Mr Bahambari had given in his initial interview with an officer of the Department of Immigration and Multicultural Affairs on 17 October 2000, his application for a protection visa, the written submissions which supported that application and the evidence he gave before the Tribunal.  The Tribunal ultimately did not accept most of Mr Bahambari’s claims.  For example, it recorded that his evidence of involvement with the MEK, a matter not initially raised, was “presented in an unconvincing manner”.  Indeed, the Tribunal noted that it believed the claims about an association with the MEK were concocted.

9. The Tribunal was of the view that Mr Bahambari’s evidence regarding the arrest of his friend Reza was lacking in credibility.  The Tribunal noted that even if Reza was in the MEK, which it did not believe, it did not accept that Mr Bahambari was ever seriously suspected of being associated with the MEK.  The Tribunal also largely did not accept Mr Bahambari’s evidence concerning the sign.  For these, among other reasons, the Tribunal rejected the first ground of Mr Bahambari’s claim.

10. The Tribunal appears also not to have believed that Mr Bahambari had really converted to Christianity.  In part it reached this conclusion because Mr Bahambari had been unable to name the church he had attended in Korea; in part because he had overstated the number of times he had been to church prior to the hearing before the Tribunal. Also, the Tribunal rejected the claim because it did not find Mr Bahambari to be a credible witness.

11. The Tribunal discussed in its reasons whether Mr Bahambari’s return to Iran might, nevertheless, give rise to persecution even though the conversion was not genuine.  Because the Tribunal did not believe Mr Bahambari would go to church or participate in any Christian activities in Iran, it did not believe there was a real chance he would face persecution there on religious grounds.

12. Mr Bahambari applied to this Court for judicial review of the Tribunal’s decision.  The application was apparently framed with the assistance of a friend.  There are two substantial grounds of the application.  The first was that the decision was said to involve an error of law involving the incorrect interpretation of the relevant law or an incorrect application of that law to the facts as found, or both.  The second ground was that the decision involved an error of law in that the Tribunal made findings of fact upon which its decision was based that were not rationally supported by probative evidence and failed to rationally consider the probative evidence before it.

13. Mr Bahambari was not legally represented before me.  At some stage he had obtained legal advice, presumably through the Court scheme.  For whatever reason, however, he had been unable to have a lawyer appear for him.  Although Mr Bahambari had originally foreshadowed that he would seek an adjournment, to obtain legal assistance, he ultimately withdrew that application and requested that the Court proceed with the hearing of his application for review.

14. Not surprisingly, Mr Bahambari, not being a lawyer, wished to concentrate upon factual matters rather than legal matters.  He referred to the suffering that he, and those who were close to him, had experienced.  He made reference to how he had been gaoled and how his girlfriend had been arrested, raped and had suffered emotional and mental problems.  He referred to how he had escaped to Korea, but had come back to Iran to care for his mother.  He referred also to the problems he had had in China and to his subsequent gaoling in Iran.  In essence he complained that the Tribunal had not believed him.  Substantially he wished me to reconsider the merits of his case.

15. The grounds upon which this Court can intervene by way of judicial review are limited to those set out in s 476(1) of the Migration Act 1958 (Cth). They are very limited and preclude the Court from engaging in merits review. Despite Mr Bahambari’s emphasis on Australia deciding his case adversely because he was from Iran, I can assure him that the Court, at least, takes no account of his nationality as such, but is restricted by the Commonwealth Parliament from doing more than considering the limited grounds of review contained in s 476.

16. I have carefully read the decision of the Tribunal.  Essentially the Tribunal reached its decision having regard to its assessment of Mr Bahambari’s credibility.  That is pre-eminently a matter for the Tribunal and not a matter for the Court.  There is nothing in the Tribunal’s reasons that suggest that it incorrectly interpreted the law or incorrectly applied the law to the facts as found by it.

17. So far as the second ground of review in the application is concerned, there is a considerable body of case law in this Court that suggests that rationality is not a ground of review.  Perhaps, the ground, as framed, was intended to suggest an argument of no evidence.  Whether the ground is interpreted that way or not, there is nothing in the Tribunal’s reasons which can be said to be irrational or not based on the evidence before it.

18. Put simply, there is nothing in my reading of the Tribunal’s reasons which suggests that the Tribunal made any reviewable error.  In these circumstances, I would dismiss the application for review and order the applicant to pay the Minister’s costs of it.

I certify that the preceding eighteen  (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             18 September 2001

Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	L A Tsaknis
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 August 2001
Date of Judgment:	22 August 2001