Bashtin v Minister for Immigration and Multicultural Affairs

[2001] FCA 1904

FEDERAL COURT OF AUSTRALIA

Bashtin v Minister for Immigration and Multicultural Affairs

AMIR BASHTIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 58 of 2001

WILCOX J
3 JULY 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA

DISTRICT REGISTRY

W 58 of 2001

BETWEEN:	AMIR BASHTIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	3 JULY 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The application be dismissed.

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

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 58 of 2001

BETWEEN:	AMIR BASHTIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	3 JULY 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

WILCOX J

1. This is an application by Amir Bashtin for review of a decision of the Refugee Review Tribunal.  The Tribunal upheld a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse Mr Bashtin a protection visa.

2. Mr Bashtin appeared today for himself, assisted by an interpreter.  However, he had the benefit of assistance, on a pro bono basis, from Mr R. O'Connor QC.  Mr O'Connor drafted an amended application, adapted to enable reference to be made to a number of matters Mr O’Connor set out in a submission.  By consent, I granted leave to the applicant to file and rely upon the amended application. 

3. The applicant asked me to consider Mr O’Connor’s submission in determining his application for review.  I will do so, and refer to each point raised by Mr O’Connor.  I will also deal with some observations made to me by Mr Bashtin himself.

4. The written submission contends the decision of the Tribunal should be set aside.  The primary position there taken is that the Court should itself determine that Mr Bashtin is a “refugee”, within the definition contained in the Convention on Refugees 1951.  Alternatively, it is contended, that issue should be remitted to the Tribunal for further consideration. 

5. It is clear the Court has no power to accede to the primary submission put by Mr O'Connor in regard to relief. The question for the Court is whether or not the applicant has established a ground of review falling within s 476 of the Migration Act 1958. If so, subject to any discretionary matters, the appropriate course would be for the Court to set aside the decision and order reconsideration by the Tribunal.

6. The first contention of Mr O’Connor is that the Tribunal failed to take into account certain relevant considerations.  Mr O’Connor particularised this contention by referring to certain reports put before the Tribunal by a solicitor acting on behalf of Mr Bashtin.  These reports were what the Tribunal usually calls “country information”.  They consisted of reports made by the United States State Department, by Human Rights Watch and Amnesty International.  Mr O’Connor’s submission quotes particular passages from these various documents. 

7. There is no doubt, on the basis of these quotations, that there were continuing human rights abuses in Iran in the period 1999-2000.  However, the question for the Tribunal was the relevance of this information to a case such as that of Mr Bashtin.  The Tribunal referred in its reasons to the reports and commented that they were said by Mr Bashtin’s solicitor “to illustrate ongoing serious human rights abuses in Iran, that people were convicted on the pretext of criminal offences when they were really being convicted for political offences, that the government was responsible for numerous extrajudicial killings, that trials were unfair, that torture and ill-treatment continued in custody, that arbitrary arrest and detention was common, and that violent vigilantes restricted freedom of association and limited political debate unchecked by the authorities.”

8. However, the Tribunal also noted other material, dealing with changes that had occurred in recent years.  The Tribunal member noted events since the election of President Khatami in 1997.  She noted a tendency towards liberalisation, but with set-backs. 

9. The Tribunal member dealt specifically with the situation in universities.  This was relevant to the claim made by Mr Bashtin that his problems started when he wrote a letter to the former President complaining of the policy in regard to university admissions.

10. I refer to all this material to indicate that, in my opinion, it is impossible to say that the Tribunal failed to take into consideration the various matters to which Mr O’Connor has referred.  The weight to be given to various statements in the documents was a matter for the Tribunal to decide.

11. The second matter raised by Mr O’Connor is a contention that the Tribunal committed an error of law.  The error is said to be an incorrect interpretation of the meaning of “persecution”, in the Convention on Refugees.  However, no argument is provided as to any misconstruction of the word “persecution”.  Mr O’Connor refers to the definition of “persecution” by Prof  J Hathaway in The Law of Refugee Status, Butterworths 1991 at pages 104 to 105.  That definition is not materially different from the description of persecution set out on page 2 of the Tribunal’s reasons for decision. 

12. Mr O’Connor submits the Tribunal has failed to have regard to various provisions in the Universal Declaration of Human Rights.  That document was not referred to in the Tribunal’s reasons for decision.  However, I cannot see that any reference to this instrument would have advanced the task of the Tribunal in considering whether Mr Bashtin falls within the definition of “refugee” in the Convention on Refugees.

13. Essentially, Mr O’Connor argues the Tribunal should have found, as a fact, that Mr Bashtin has suffered persecution in the past and, therefore, had a well-founded fear of future persecution, if he was returned to Iran.  Mr O’Connor gave a section of his submissions the headings “Comments on Tribunal’s Findings”.  As the heading suggests, these are comments about the factual correctness of various findings made by the Tribunal.  However, the correctness of the Tribunal’s findings of fact is not a matter which this Court has power to consider.

14. I am grateful to Mr O’Connor for having taken the trouble to read and consider the Tribunal’s reasons for decision. Consideration of his submission has reinforced my impression that the reasons for decision do not disclose a defect falling within s 476 of the Migration Act. 

15. I should also refer to complaints that Mr Bashtin raised with me himself at the hearing today.  He was unhappy about the manner in which the Tribunal’s hearing was conducted.  Apparently the hearing was conducted by a member visiting the detention centre at Port Hedland where Mr Bashtin is detained.  There was a need for an interpreter interpreting between the English language and the Farsi language.  This was provided by a telephone conference link-up. 

16. Mr Bashtin told me the interpreter would get angry with him, on occasions, and tell him to answer “yes” or “no”.  Mr Bashtin made a similar complaint in a letter that he wrote to Mr O’Connor on 17 June.  He said in that letter that the interpreter got angry and impatient, “As the interpreter was very serious, I lost my way and was unable to understand him.”  However, Mr Bashtin was unable to identify any particular matter which was misunderstood because of poor interpretation. 

17. Mr Bashtin also said the member appeared tired.  Apparently, two review hearings per day were listed before her.  Mr Bashtin’s case was listed for an afternoon.  The hearing occupied about an hour.  Mr Bashtin said the member was biased “because she already knew what she wanted to ask”.  Mr Bashtin also thought the questions that she asked were not relevant.

18. I can understand Mr Bashtin feeling his case might have occupied more than one hour.  However, it must be remembered that he had given an oral account of his claims on two previous occasions.  He had also provided a statutory declaration prepared, apparently, with the assistance of a solicitor.  The events that he recounted at those interviews, and in that declaration, were within a relatively short compass.  So it is understandable the member did not require a lengthy hearing, in order to go through the important matters with Mr Bashtin.  I do not regard her focus on those matters as being indicative of bias. 

19. I asked Mr Bashtin if he could identify any matters that he felt unable to explain fully to the Tribunal.  He referred to a comment which he said the member had made during the hearing, to the effect that President Khatami had brought freedom to Iran.  He said he would have liked to respond to this and point out the limitations on the freedom.  However, I think it is clear from the member’s decision that she appreciates that President Khatami’s liberalisation is only relative.  Although President Khatami had been able to free up Iran to some extent, it was still repressive by the standards of most countries. 

20. The other matter, to which Mr Bashtin referred, was that he would have wished to explain that his letter of complaint to the former President, President Rafsanjani, was different from complaints by other people about the university admission rules.  I asked him in what way it was different.  He told me it was different because security officers had come to his house three years later in response to the letter.

21. 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.  I think it is worth quoting a paragraph, at page 20 of the Tribunal’s reasons, which set out the gist of her finding.  She said this:

    “Mr Bashtin stated at the Tribunal hearing that people who have a ‘political stand’, who are ‘against the Supreme Leader and the government’, or who ‘appear to be involved in political activities’ are kept under observation so they do not get involved in political matters.  I accept that this is true, and indeed accept the evidence submitted by Mr Bashtin’s solicitor that such people are often subjected to very serious human rights abuses in Iran.  However I am not satisfied that Mr Bashtin fell into any of these categories, nor that he might have been perceived to do so.”

    That is the critical finding.  It is entirely a finding of fact. 

22. I am not satisfied that the Tribunal failed to accord a proper hearing of the review. I am not satisfied that there is any ground, provided by s 476, available in this case. It follows that the application must be dismissed. The Minister seeks an order for costs and I think I should make that order.

23. The order of the Court will be that the application be dismissed with costs.

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

Associate:
Dated:             3 July 2001

The Applicant appeared via video on his own behalf.
Counsel for the Respondent:	L A Tsaknis
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 July 2001