Bashtin v Minister for Immigration and Multicultural Affairs

[2001] FCA 1582

FEDERAL COURT OF AUSTRALIA

Bashtin v Minister for Immigration & Multicultural Affairs [2001] FCA 1582

Migration Act1958 (Cth) s 476

AMIR BASHTIN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 289 OF 2001

SACKVILLE, KIEFEL & HELY JJ
8 NOVEMBER 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 289 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	AMIR BASHTIN APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	SACKVILLE, KIEFEL & HELY JJ
DATE OF ORDER:	8 NOVEMBER 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The appeal 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
WESTERN AUSTRALIA DISTRICT REGISTRY	W 289 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	AMIR BASHTIN APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SACKVILLE, KIEFEL & HELY JJ
DATE:	8 NOVEMBER 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT:

1. The appellant is a national of Iran.  He left Iran on 6 September 2000 through Teheran Airport, using his own passport.  The appellant claims to have fled Iran because he feared for his life and safety.

2. In 1996 the appellant was unable to gain entry into a tertiary midshipman’s course despite passing the relevant examination.  The Refugee Review Tribunal (“RRT”) found that this failure was partly due to a quota system which was then in force, and because the appellant was one of those who lacked the “good connections” to obtain a place in a tertiary institution, when competition for such places was fierce.  The appellant did not claim, and there was no other evidence before RRT to suggest, that he was denied a place because of a political opinion imputed to him, or for any other Convention reason.  RRT found that the denial of a place at the university did not amount to persecution, and that the appellant was denied that place for a non-Convention-related reason.

3. RRT accepted that in 1996 the appellant wrote a letter of complaint to the office of the then President about this matter.

4. It was the appellant’s case that the writing of this letter resulted in his being arrested, detained and mistreated by the security services in 1999.  He claimed that he was expelled from his job, and kept under constant surveillance because he was regarded as a political activist by reason of the letter sent to the President three years earlier.  The appellant claimed to have left Iran because he feared persecution at the hands of the Iranian government.  He said that a smuggler aided his departure.

5. RRT made the following findings:

   -the actions claimed by the appellant to have been taken by the security forces in 1999 as a result of his having written the letter to President Rafsanjani three years earlier are so implausible that RRT was not satisfied that they occurred;

   -the appellant did not leave Iran illegally, and if he had been wanted for political reasons by the Iranian authorities, the airport’s computer check would have revealed his intended departure;

   -the appellant does not have a well-founded fear of being persecuted because of a political opinion arising from his “security profile”, his “breach of undertaking” and his “illegal departure” from Iran.

   The reference to “breach of undertaking” is to a guarantee allegedly given by the appellant to the security forces at the time of his detention in 1999 that he would not engage in anti-government activity.

6. An application for review of that decision was dismissed by a judge of this Court. The primary judge considered the various contentions which had been put by the appellant, and by senior counsel who prepared written submissions on the appellant’s behalf, and concluded that the reasons for decision of RRT do not disclose a defect falling within s 476 of the Migration Act1958 (Cth) (“the Act”). Nor was the primary judge satisfied that RRT failed to accord a proper hearing of the review.

7. The appellant was not represented on the hearing of this appeal.  The Notice of Appeal appears to have been prepared by the appellant without the benefit of legal assistance.  The grounds of appeal are:

   “1.Many of my problems and legal errors related to RRT were not considered in Federal Court siting hearing.  Please refer to my grounds submitted in previous application for Federal Court.

   2.According to my mistake in my speak the interpeater became nervous and wanted me to respond to the questions only with yes or no.

   3.I stated my evidence about my problems short – short and my RRT Member accepted.  But now she says that I (the applicant) had not too much problem.  In fact about my evidence such as I was under attention of the authority and not allowed to live in the community because of my political opinion and deviation of people.  She did not care.”

   None of the grounds identified in the Notice of Appeal discloses any error on the part of the primary judge or any reviewable error on the part of RRT.

8. The appellant addressed the Court orally.  Nothing which he put to the Court demonstrated any error on the part of the primary judge.  For the most part, his submissions invited the Court to embark upon a reconsideration of the merits of his claim, and to conclude that RRT had reached a wrong conclusion on the facts.

9. The assessment of the appellant’s claim is a matter within the provenance of RRT.  Neither the primary judge, nor this Court, is entitled to embark upon a “merits” review of RRT’s decision.  RRT identified the relevant principles, applied them to the facts as it found them to be, and concluded that the appellant did not have a well-founded fear of persecution if returned to Iran for a Convention reason.

10. The appellant complained that RRT did not ask to be told the contents of the letter which the appellant wrote to the President in 1996.  It is clear that the substance of that communication was conveyed to RRT.  If any further details were thought likely to advance the appellant’s case before RRT, his representatives could have included those details in their written submissions prepared on the appellant’s behalf.  Moreover, the appellant was legally represented in connection with the proceedings before the primary judge, but no complaint was made in this respect by the lawyers then assisting him.

11. The proposition that the RRT Member “did not care”, assuming that is intended to convey that the Member did not undertake the review for which the Act provides, is not made out. The appellant’s claims were considered by RRT and rejected for reasons which it gave. No reviewable error in that reasoning process has been exposed.

12. The primary judge gave full consideration to the appellant’s claim that he was unhappy about the manner in which RRT’s hearing was conducted.  In particular the primary judge considered the complaint which the appellant made about the interpreter, the complaint that the Tribunal Member appeared tired, and the complaint that the hearing before the Member only occupied a period of one hour.  The primary judge was not satisfied that RRT failed to accord a proper hearing of the review.  No error has been exposed in his Honour’s conclusion in that respect.

13. The appellant submitted that the RRT Member was biased against him.  It is apparent that the foundation for this claim lies in the matters referred to by the primary judge in pars [17] and [18] of his judgment.  The primary judge rejected the claim.  No error has been shown in that decision.

14. Both RRT and the primary judge were aware that there were continuing human rights abuses in Iran in the period 1999-2000 and that any liberalisation by President Khatami was only relative.  The appellant’s claim failed not because RRT misunderstood conditions in Iran, but because RRT found that the appellant was not a person who was of interest to the Iranian authorities.

15. There is one matter we should mention.  At AB 115 the primary judge records that the appellant wanted to explain that his letter of complaint to the former President was different from the general body of complaints made to the former President because security officers had come to his house three years later in response to that letter.  The primary judge then said:

    “There is no doubt that the Member understood this.  She accepted that security officers had come to Mr Bashtin’s house.  But the real point of the Member’s decision is that, notwithstanding this interest, no action was taken against Mr Bashtin from that time until he left Iran the following year.”

16. As we read the Tribunal’s decision, the Member did not accept that security officers had come to the appellant’s house, hence the quoted observation on the part of the primary judge involves a misconstruction of RRT’s decision.  The primary judge has assumed that RRT’s decision was more favourable to the appellant than was in fact the case.  However, this error on the part of the primary judge does not assist the appellant, as his Honour correctly records that RRT found that the appellant was not perceived by the authorities to be within the categories of “political” persons who might have been of interest to those authorities.  His Honour correctly observed that that was the critical question, and it was a question of fact for RRT to determine.

17. For these reasons the appeal should be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:             8 November 2001

The appellant appeared in person
Counsel for the Respondent:	Mr L A Tsaknis
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 November 2001
Date of Judgment:	8 November 2001