Dehgany v Minister for Immigration and Multicultural Affairs

[2001] FCA 948

FEDERAL COURT OF AUSTRALIA
Dehgany v Minister for Immigration & Multicultural Affairs [2001] FCA 948

MIGRATION – refugees – Tribunal disbelieved applicant’s claim to have been arrested and tortured after demonstration and generally disbelieved applicant’s other claims – applicant claimed three categories of injuries had been sustained during such torture – applicant a champion boxer – Tribunal accepted medical evidence that applicant had those injuries but specifically found that they had not been sustained in the manner claimed by applicant – whether Tribunal obliged to make finding about how in fact those injuries were sustained – whether failure to do so amounted to jurisdictional error or other error of law – application dismissed.

Migration Act 1958 (Cth), s 476(1)(a), (e)

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HVA 30 applied
Abebe v The Commonwealth (1999) 197 CLR 510 applied

AMIR HOSHANG DEHGANY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 158 of 2000

CARR J
19 JULY 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 158 OF 2000

BETWEEN:	AMIR HOSHANG  DEHGANY Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	CARR J
DATE OF ORDER:	19 JULY 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	W 158 OF 2000

BETWEEN:	AMIR HOSHANG  DEHGANY Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	CARR J
DATE:	19 JULY 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 5 September 2000, 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 national of Iran, arrived in Australia illegally in March 2000.  His evidence was that he departed from Iran via Teheran airport on a false Iranian passport which he had returned to the people smuggler who arranged his travel to this country, eventually from Indonesia.  On 15 April 2000 the applicant applied for a protection visa.  On 21 June 2000 a delegate of the respondent refused to grant him a protection visa.  On 22 June 2000 the applicant sought review of the delegate’s decision by the Refugee Review Tribunal.

   THE APPLICANT’S CLAIMS AND THE TRIBUNAL’S DECISION

2. The applicant’s claims were as referred to in the following paragraphs of the Tribunal’s findings and reasons for decision.

   FINDINGS AND REASONS FOR DECISION

   As I indicated to the Applicant in the course of the hearing before me, I consider that there are good reasons to doubt that he is telling the truth about his past experiences in Iran.  At the hearing before me he made what I can only construe as a deliberate attempt to portray himself as a more significant political activist than he had in his previous evidence.  Whereas, for example, he had said previously that he had been arrested in 1991 because he had not had a beard and had been wearing a short-sleeved shirt, at the hearing before me he said that this had been a pretext to take him away for interrogation and that the real reason had been that he had been opposing the regime in whatever way he could.  He said that he had been telling people about the crimes committed by the regime.  Likewise, the Applicant had previously said that he had been expelled from university in 1992 because he did not go to the mosque or pray and because he drank alcohol and listened to loud music.  At the hearing before me, however, the Applicant said that this had been one of the factors but they had labelled him as somebody worthless because he had been quite active in outside protests, active in politics and actively challenging the authorities.

   Similarly, in his original application and when he was interviewed by a Departmental officer in connection with his application the Applicant did not suggest that he had had a history of involvement in student demonstrations in Iran.  He suggested that the authorities had perceived him as a threat because he taught young people swimming and boxing and in Iran people looked up to their trainers and teachers.  In their submission dated 28 July 2000, however, the Applicant's representatives suggested that the Applicant had ‘a history of involvement in student rallies’ and at the hearing before me the Applicant said that he had participated in all the mass meetings against the Government although he said that he had not been arrested before the particular demonstration he had mentioned previously.

   As I indicated to the Applicant in the course of the hearing before me the account he has given of the demonstration at which he was arrested does not accord with historical events.  The Applicant has consistently said that the demonstration took place in 1998, after people associated with Ayatollah Khamenei raided a student dormitory.  At the hearing before me the Applicant said that the demonstration had been on the 2nd day of the month of Khordad in the year 1377 in the Iranian calendar (that is, 23 May 1998).  He agreed when I put to him that this meant, according to his account, that he had remained in Iran for a further year and a half after he had been released from detention.  (The Applicant has consistently said that he left Iran in around January 2000.)  As I put to the Applicant, the problem I have is that the demonstrations following the raid on the student dormitories in Tehran took place in July 1999, six months before he left Iran, not in May 1998 (see ‘Protesting in Tehran’, The Economist, 17 July 1999, CX36950).

   The Applicant said by way of response that he had terrible problems, he was under stress and that even on his arrival in Australia he had had problems.  He said that he had forgotten many things because of the torture and trauma he had suffered.  He said that he was on 12 types of medication, that he had a headache and that he had head problems.  (The Applicant was examined by a doctor in connection with his application for a protection visa on 4 June 2000 and the doctor noted that three weeks previously the Applicant had had an episode of hypomania (manifested in agitation and bizarre behaviour).  He had seen a psychiatrist and had been prescribed risperidone, an anti-psychotic medication.)  As set out above, the Applicant said at the Departmental interview that he could show the marks of torture on his body.  On 11 August 2000 the Applicant's representatives produced a handwritten facsimile transmission from the Applicant indicating that there was a matter which he had not previously mentioned, either to his representatives or to the delegate of the Minister, namely the fact that as a result of the torture to which he had been subjected in Iran he had suffered some injury to his sexual organs.  At the hearing before me the Applicant referred for the first time to the fact that he had had a tattoo which he said had been burned off while he had been detained because the people who had detained him had said that this belonged to the communists.  He also said that he had scars around his genitalia.

   On 30 August 2000 the Applicant's representatives provided the Tribunal with the results of a medical examination undertaken by a general practitioner with the assistance of a telephone interpreter.  The Applicant told the general practitioner that ‘due to his sympathies with the communists he had tattooed the communist symbol on his left arm but when he was in jail the Muslim jailers used cigarettes to burn his tattoo to try and get rid of the tattoo’.  He also stated that the fingers of both his hands had been held down on a hard surface and bashed with a bottle causing fractures to the fingers. Finally he said that his jailers had used a piece of nylon twine or rope wrapped several times around the base of his penis to lift him off the ground.  The doctor reported that on examination the Applicant had burn scars to a tattoo that was no longer recognisable on his left arm, mild deformities to all the fingers of his right hand and two fingers on his left hand consistent with old fractures, and a circumferential scar at the base of the penis on the left side.  He said that these injuries were ‘consistent with the history of torture to these areas of the body’.

   I accept the observations recorded by the general practitioner as a result of his examination of the Applicant in August 2000.  However, as I indicated to the Applicant in the course of the hearing before me, whether I accept that any injuries he may have were inflicted upon him in the manner he has suggested depends on my assessment of his credibility.  With regard to the mild deformities of his hands noted by the general practitioner, for example, it does not appear from the general practitioner's record of his interview with the Applicant that the Applicant mentioned to him that he was a boxer.  While the injuries to his hands may, as the general practitioner observed, be consistent with the history of torture which the Applicant gave, the general practitioner was deprived of the opportunity of considering the alternative explanation that those injuries might be consistent with the Applicant’s past career as a boxer.

   I note also that the Applicant's claims in relation to the tattoo appear to have undergone a process of embellishment, as with the remainder of his evidence, as referred to above.  At the hearing before me the Applicant said that the people who had detained him had said that his tattoo belonged to the communists and they had burned it off.  He apparently told the general practitioner who examined him, however, that due to his sympathies with the communists he had tattooed the communist symbol on his left arm.  The Applicant had not previously claimed to have had sympathies with the communists.  At the hearing before me he defined his politics in terms of opposition to the clerical regime in Iran rather than in terms of support or sympathy for any alternative.  Indeed he said that there were no political groups in Iran so the only chance was to act by yourself.

   I accept that, as Gummow and Hayne JJ remarked in Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 52, ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’.  I accept that it is natural for the Applicant, following the initial rejection of his application, to try to portray himself as more actively involved in opposing the regime in Iran than he had previously suggested.  However the fact that it is natural for the Applicant to do so does not make his claims in that regard any more credible.  Moreover, as I put to the Applicant, his account of the timing of the demonstration which he claims led to his detention for two months in 1998 does not accord with historical events.  The Applicant has clearly indicated that the demonstration was provoked by the raid on the student dormitories, yet these events took place in July 1999, not in May 1998 as the Applicant has suggested.  As I put to the Applicant, I do not accept that he would forget whether these events took place 18 months before he left Iran or only six months before he left Iran.  While, therefore, as stated above, I accept the observations recorded by the general practitioner as a result of his examination of the Applicant in August 2000, I do not accept the Applicant's evidence with regard to his detention following a demonstration nor do I accept that the injuries observed by the general practitioner were inflicted upon the Applicant by reason of his real or imputed political opinion.  I do not accept that the Applicant is a witness of truth.

   I accept that in 1987 the Applicant's brother, who was a teacher, was dismissed from his job after he spoke to students about social problems.  However there is nothing in the evidence before me to suggest, nor was it submitted, that this had any adverse consequences for the Applicant.  Indeed the Applicant was subsequently admitted to university which, as I put to him, suggests that he was not regarded as ideologically suspect by the regime (see National Office of Overseas Skills Recognition, Country Education Profiles - Iran, May 1992, CX7049).  I accept that the Applicant was arrested in 1991 because he was clean-shaven and was wearing short sleeves.  I accept that he was detained for two days and received 99 lashes for this offence against Iran’s Islamic dress code.  I do not accept that, as the Applicant suggested at the hearing before me, this was an excuse to take him away for interrogation because he had been opposing the regime in whatever way he could and telling people about the crimes committed by the regime.  I consider that this represents an embellishment of the Applicant’s original evidence.

   I do not accept that the Applicant was detained and punished by reason of his political opinion rather than for a breach of a criminal law of general application.  It is well established that the enforcement of a law of general application is not, without more, persecution for a Convention reason: see Applicant A, referred to above, per Dawson J at 244-5, approving what was said by Beaumont, Hill and Heerey JJ in the Full Court of the Federal Court in that case, and per McHugh J at 258-9.  In order to come within the terms of the Convention the prosecution would have to be selective on one of the Convention grounds or, for example, a person would have to be punished more harshly for a Convention reason than others convicted of the same offence: see Z v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Katz J, 11 December 1998).  I do not accept that the Applicant was singled out for punishment, or treated differently from other persons charged with the same offence, by reason of his political opinion, real or imputed.  I do not accept that the Applicant was imputed with a political opinion opposed to the regime by reason of his breach of the Islamic dress code (see DFAT Country Profile - Islamic Republic of Iran, March 1996, paragraph 3.3.4).  I note once again, that, as I put to the Applicant in the course of the hearing before me, he was admitted to university after these events and I consider that this suggests that he was not considered ideologically suspect in the eyes of the regime (see National Office of Overseas Skills Recognition, Country Education Profiles - Iran, May 1992, CX7049).

   I accept that the Applicant was expelled from university in 1992 because he had not been going to the mosque or praying, because he had been drinking alcohol and because he had been listening to loud or Western music.  Once again I do not accept that, as the Applicant claimed at the hearing before me, this was only one of the factors and he was expelled from university because he had been active in politics and actively challenging the authorities. I consider that this likewise constitutes an embellishment of the Applicant’s original evidence.  I do not accept that the Applicant was expelled because of his real or imputed political opinion nor do I accept that he was imputed with a political opinion as a result of his failure to go the mosque or to pray, his drinking and his listening to loud or Western music.  Once again I note the advice of the Australian Department of Foreign Affairs and Trade that even repeated infringements of such ‘morals’ laws will not give rise to an imputed political opinion in Iran (see DFAT Country Profile - Islamic Republic of Iran, March 1996, paragraph 3.3.4).

   I do not accept that, as the Applicant’s representatives suggested in their submission dated 28 July 2000 and as the Applicant suggested at the hearing before me, the Applicant has a history of involvement in student rallies nor that after he was expelled from university he participated in all the mass meetings against the Government.  I consider that this represents yet another embellishment of the Applicant's original evidence.  I do not accept the Applicant's account of his participation in a demonstration in May 1998 following an incident in which people associated with Ayatollah Khamenei raided a student dormitory and attacked students, some of whom were the Applicant's friends.  As set out above, the Applicant's account does not accord with historical events.  There was a meeting at Tehran University on 23 May 1998 to celebrate the first anniversary of the election of President Khatami (Firouz Sedarat, ‘Iran: Street Clashes Spotlight Factional Struggle’, Reuters News Service, 26 May 1998, CX30013; Scott Macleod, ‘Old Iran vs New’, Time, 6 July 1998, CX31525).  The attack on the student dormitory which the Applicant said prompted the demonstration at which he was arrested did not take place until 8 July 1999 (see ‘Protesting in Tehran’, The Economist, 17 July 1999, CX36950).  As I have said, I do not accept that the Applicant could be confused as to whether the events which led to his arrest took place six months or eighteen months before he left Iran if he were indeed telling the truth about those events.  I do not accept that the Applicant was arrested at a demonstration in May 1998 as he has described.  I do not accept that he was detained thereafter for two months, tortured and subjected to mock executions as he has described.

   Having regard to the view I have formed of the Applicant's credibility, I do not accept that after his release he continued to be active politically, discussing politics at the club where he worked as he claimed at the hearing before me, nor do I accept that two months before he left Iran the club was raided by the Ansar-e-Hezbollah who tore the punching bags and threatened him with death.  I do not accept that the Applicant subsequently received a letter or letters, at the club or at his house, saying (in an allusion to the three mock executions) that there would not be a fourth time and that if they found him they would kill him.  Furthermore, while it is true that, as the Applicant noted in the course of the hearing before me, some prominent writers were murdered in Iran in late 1998, I do not accept that it is plausible that a person like the Applicant would have been threatened with death by the Ansar-e-Hezbollah even if he had been involved in discussing politics at the club where he worked.

   The Applicant referred in this context to the fact that he was a trainer and teacher of young people and that in Iran people looked up to their trainers and teachers.  However I do not consider that this fact makes it any more plausible that the Applicant would have been threatened by the Ansar-e-Hezbollah or any other group by reason of having been involved in discussing politics at the club where he worked.  To the extent of any inconsistency I give greater weight to the advice of the Australian Department of Foreign Affairs and Trade that, while the Iranian Government ruthlessly suppresses organised opposition activities, people are relatively free to grumble about the Government to friends and strangers alike and most do so without adverse consequences (DFAT Country Profile - Islamic Republic of Iran, March 1996, paragraph 2.6.2). I do not accept that there is a real chance that the Applicant will be threatened with death or otherwise persecuted by reason of his political opinion, real or imputed, if he returns to Iran and resumes his former employment as a coach of boxing, swimming and lifesaving.

   I consider that the Applicant's account of the events which led to his departure from Iran is a fabrication.  As I have said, I accept the observations recorded by the general practitioner as a result of his examination of the Applicant in August 2000 but I do not accept the Applicant's account of how he came to suffer the injuries observed by the general practitioner nor do I accept that they were inflicted upon the Applicant by reason of his political opinion, real or imputed.  Furthermore, as I put to the Applicant in the course of the hearing before me, even if I were to accept that he had participated in a demonstration in Tehran in July 1999, and that he had been arrested and tortured as he has described as a result of his participation in that demonstration, I would not accept that there was a real chance that he would be persecuted for this reason if he were to return to Iran now.

   As I put to the Applicant, the information available to me indicates that only the leaders of the demonstrations in July 1999 were imprisoned.  Even accepting the Applicant’s evidence, it is clear that he was not one of the leaders of the demonstration.  Most of those who were detained were released immediately after questioning or were only detained briefly (‘Iran: Iran leader commutes death sentences of students’, Reuters News Service, 30 Apri1 2000, CX41763; ‘Iran: Iran Court hands out jail terms to protesters’, Reuters News Service, 16 September 1999, CX37711; ‘Iran: Iran court jails student leader over protests’, Reuters News Service, 17 October 1999, CX38171; US State Department, Country Reports on Human Rights Practices for 1999 in relation to Iran, Section 2.b, Freedom of Peaceful Assembly and Association; DFAT Country Information Report No. 197/00, dated 19 Apri1 2000, CX41440).  The Applicant said that they had released some people but these people were under close watch.  They were being watched all the time.

   However, as I put to the Applicant, the Australian Department of Foreign Affairs and Trade has advised that those individuals who have in the past simply been briefly and in a relatively minor capacity associated with anti-regime activities or demonstrations, have been briefly detained and imprisoned and are now living freely in society, cannot be considered as having an imputed political profile (DFAT Country Profile - Islamic Republic of Iran, March 1996, paragraph 3.3.4).  The Applicant said that this was not true.  He referred in this context to the murders of the writers Muhammad Mokhtari and Muhammad Pouyandeh.  He also suggested that the journalist Akbar Ganji had been killed whereas he has in fact merely been imprisoned (see US State Department, Country Reports on Human Rights Practices for 1999 in relation to Iran, Sections 1.a, Political and Other Extrajudicial Killing, and 2.a, Freedom of Speech and Press; ‘Iran frees student leader on bail’, Reuters News Service, 25 June 2000, CX43358).

   As I have said, I consider that the Applicant’s situation is significantly different from that of such writers or a journalist like Akbar Ganji.  The Applicant said that he did not claim that he was a ringleader, a political activist, but he had a strong political ideology.  He could not remain silent, could not stay idle, when there was so much discrimination and cruelty in society.  However, setting aside those parts of the Applicant's evidence at the hearing before me which I regard as embellishments, I do not accept that he is a person who has in the past been, or will in the future be, outspoken in his opposition to the present regime in Iran.  Even accepting that the Applicant was arrested after his participation in one demonstration in Tehran in July 1999 I do not accept that he had a record of involvement in such demonstrations in the past nor do I accept that there is a real chance that he will participate in such demonstrations in the future.

   I consider that the Applicant's future involvement in political activity will be limited to grumbling about the Government and, as I have said, the Australian Department of Foreign Affairs and Trade has advised that people in Iran are relatively free to do this and most do so without adverse consequences (DFAT Country Profile - Islamic Republic of Iran, March 1996, paragraph 2.6.2).  As I have said above, I do not consider that the fact that the Applicant is a trainer and teacher of young people and that in Iran people look up to their trainers and teachers makes it any more plausible that the Applicant will be threatened by the Ansar-e-Hezbollah or any other group by reason of his political opinion if he returns to Iran and resumes his former employment now or in the reasonably foreseeable future.  Even accepting that the Applicant was detained and tortured as he has said, therefore, I do not accept that it is plausible for him to suggest that he was threatened with death after his release as he has claimed.  To the extent of any inconsistency I prefer the advice of the Australian Department of Foreign Affairs and Trade to the effect that individuals like the Applicant who have in the past simply been briefly and in a relatively minor capacity associated with anti-regime activities or demonstrations, who have been briefly detained and imprisoned and who are now living freely in society, cannot be considered as having an imputed political profile (DFAT Country Profile - Islamic Republic of Iran, March 1996, paragraph 3.3.4).

   Having regard to the view I have formed of the Applicant's credibility, I do not accept that, as he said when he was initially interviewed, he was told that he could not work and that they would close his club.  Even accepting that the Applicant was arrested at a demonstration as he has claimed, I do not accept that the Ansar-e-Hezbollah raided the club where he worked and damaged the equipment.  Since I do not accept that the Applicant was imputed with an adverse political opinion by the Government of Iran, I consider that he will be able to continue to obtain employment coaching people in boxing, swimming and lifesaving if he returns to Iran now or in the reasonably foreseeable future.  I do not accept that the Applicant will be unable to obtain employment for a Convention reason if he returns to Iran or that, for such a reason, he will be limited to jobs that are so dangerous or demeaning or so out of keeping with his qualifications as to constitute ‘persecution’ for the purposes of the Convention: see Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260.

   Since I do not accept that, at the time he left Iran, the Applicant was imputed with an adverse political opinion by the Government of Iran, I do not accept that he left Iran illegally.  I consider it most likely that he left Iran travelling on a genuine Iranian passport issued in his own name.  However, even if I were to accept that the Applicant had left Iran illegally, as I put to the Applicant, the most likely penalty for this offence is a fine (DFAT Country Profile - Islamic Republic of Iran, March 1996, paragraph 1.7.6.1).  Once again, I consider that if the Applicant is punished for this offence it will be for the breach of a law of general application.  I do not accept that he will be singled out, or treated differently from others charged with the same offence, by reason of his real or imputed political opinion. 

   As I likewise put to the Applicant, the Australian Department of Foreign Affairs and Trade has advised that the act of applying for asylum abroad is not, in itself, an offence in Iran.  At worst, knowledge that an individual has sought political asylum will not result in much more than verbal harassment (DFAT Country Profile - Islamic Republic of Iran, March 1996, paragraph 1.7.6.2).  The Applicant asserted that he would be executed if he were to return to Iran because he had been outspoken and he had taken steps against the authorities.  He said that if he went back they would question him about why he had left and they would accuse him of having taken out information and of having returned to carry out espionage on behalf of foreign countries in Iran.  However I regard the Applicant’s evidence in this regard as fanciful.  As I have said, I do not accept that he was outspoken and that he took steps against the authorities.  I consider that this represents an embellishment of his original evidence.

   As I put to the Applicant, the Australian Department of Foreign Affairs and Trade has advised that deportations of Iranian asylum seekers to Iran now take place routinely from a number of Western countries and that none of the countries which routinely undertake deportations has seen evidence of reprisals or persecution directed at returnees (DFAT Country Profile - Islamic Republic of Iran, March 1996, paragraph 1.7.7.1).  The Applicant responded that the Iranian Government would not tell anyone if they arrested a person, killed them and threw their body in the street.  However the fact of the matter is that murders such as those of the writers referred to by the Applicant have been reported as have, notoriously, the espionage allegations levelled against 13 Jews (US State Department, Country Reports on Human Rights Practices for 1999 in relation to Iran, Section 2.c, Freedom of Religion).  I do not accept that it is plausible for the Applicant to claim that he will be accused of having taken information out of the country or of having returned to carry out espionage on behalf of foreign countries, nor do I accept that it is plausible for the Applicant to claim that he will be executed if he returns to Iran.

   I am not satisfied that the Applicant has a well-founded fear of being persecuted for a Convention reason if he returns to Iran now or in the reasonably foreseeable future. It follows that he is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Consequently the Applicant does not satisfy the criterion set out in subsection 36(2) of the Migration Act for the grant of a protection visa.

   GROUNDS OF THE APPLICATION

1. The applicant filed his application in person.  The grounds stated in that document were as follows:

   “a.The decision involved an error of law, being an error involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal or both.

   b.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 it failed to rationally consider the probative evidence that was before it.”

2. On 12 October 2000, French J ordered, under Order 80 rule 4 of the Federal Court Rules, that the applicant be referred for legal assistance for the purpose of obtaining advice and, if appropriate, representation at the hearing of the application. 

3. Mr G P Mohen, a barrister and solicitor, who at that time managed a service known as “Law Access” provided by the Law Society of Western Australia, accepted the reference.  Mr Mohen, now a senior associate with Messrs Friedman Lurie Singh, solicitors, appeared for the applicant today.  The Court records its appreciation for Mr Mohen's continued assistance (and the co-operation of his firm) in this matter on a pro bono publico basis.  Mr Mohen informed the Court that he had only been able to obtain limited instructions because his client was no longer at the Port Hedland Immigration Detention Centre and was still at large.  In those circumstances I propose to consider the matters which the applicant has personally put before the Court and also a short submission put by Mr Mohen at the hearing of the application.

4. In accordance with an order made at a directions hearing on 11 October 2000, the applicant sent two communications to the Court.  One was a letter which read as follows:

   “I couldn’t reveal my all details regarding my case during the interview with the R.R.T.

   I have the following objection on the R.R.T. decision.

   1.During the interview with R.R.T. I had mental problem, I was eating 8 tablets so I couldn’t do anything however I told the member of R.R.T. that I am not able to do anything and I didn’t know what am I saying during interview.  On the other hand the manager of I.R.P.C. is aware about that and the nurse clinic is aware.  Even I couldn’t remember my name during interview.

   2.When I was interview with Dima at that time I was able to reveal my claims as my case officer accepted my claims, but at the end he say that if I returned to Iran I wouldn’t be persecuted.  But this is not true, if I return to Iran I will be persecuted by Authorities.  The cause is mentioned in my case.

   3.I don’t accept the decision of R.R.T. because I was sick and I was not treated by any expert doctor, so I don’t know what did I say to R.R.T.  I must be interview again with R.R.T.”

5. The applicant also sent to the Court a communication advising that he was now attending the Uniting Church.  He provided the telephone number of the Church and added:

   “Because I was moslim before and now I am christian so I plead you to not return me to Iran please because the government of iran will kill me.  I am afraid to return to Iran.  Also I would like to put this changing in my life about my religion to my case please.”

6. That communication was accompanied by an unsigned copy of a letter apparently from a person named “Bev Fabb” to the respondent from which it appears that the Reverend Fabb is the Uniting Church minister in Port Hedland.  In her letter the Rev Fabb states that she first met the applicant on 5 November 2000 on which date she says that the applicant told her that he wished to convert to Christianity and be baptised.  That date was exactly 2 months after the date of the Tribunal’s decision.  Accordingly I do not propose to take into account, in the determination of this application, the applicant’s claims to the extent that they are based on conversion from being a Moslem to being a Christian.  They are simply not relevant to the question whether the Tribunal has made any reviewable error.

7. During the course of the directions hearing on 11 October 2000 the applicant mentioned that he had been very ill and on medication and could not remember some of the questions put to him (apparently at the Tribunal hearing) or his answers.  A direction was made that the respondent include in his affidavit medical records held by or on behalf of the respondent relevant to the applicant’s medical condition and medication at the time of the Tribunal hearing.

8. The annexures to the affidavit filed on behalf of the respondent included some medical records.  They showed a history of some psychiatric disturbance in May 2000 and the fact that on the day before the hearing before the Tribunal the applicant had presented at the Detention Centre clinic “anxious” and with flu symptoms.  He was prescribed 25 mgs of what appears to be “Phenergan” immediately together with a further 25 mgs of the same medication that evening together with Codral flu tablets four-hourly and Betadine medication for a sore throat.

9. The evidence shows that the applicant was represented at the hearing before the Tribunal by a partner in a firm of solicitors.  It is not entirely clear, but it would appear from the fourth paragraph of the extract above from the Tribunal’s reasons that the Tribunal was aware that the applicant was on medication, had a headache and had “head problems”.

10. The Tribunal’s reasons strongly suggest that when it put to the applicant fairly numerous matters upon which it had doubts, he was able to respond readily and coherently with his explanations.  If the applicant had been so unwell, as he now claims, as not to know what he was saying (and, if as alleged in his submissions he told the Tribunal this) or even to remember his name, his solicitor could easily have requested an adjournment of the hearing.  He did not do so.  The tapes of the proceedings before the Tribunal would reveal whether there is any substance in the allegation that the applicant had told the Tribunal that he was so unwell as not to know what he was saying.  There is no evidence before the Court to suggest that the hearing before the Tribunal was conducted unfairly or otherwise than in accordance with the law.

11. The point which Mr Mohen raised at the hearing this morning was as follows. The Tribunal had rejected the applicant’s account of how he had sustained the injuries observed by the general practitioner upon examination of the applicant in August 2000 i.e. the burn scars to a tattoo on his left arm, mild deformities to all the fingers of his right hand and two fingers of his left hand, and a circumferential scar at the base of his penis on the left side. The Tribunal’s error, so it was put, was that it had made no positive finding as to how those injuries were sustained; the Tribunal had simply discounted the applicant’s account without finding an alternative (although the Tribunal had noted that it did not appear from the general practitioner’s report that the applicant had mentioned to him that he was a boxer). This, so Mr Mohen submitted, amounted either to a jurisdictional error falling within s 476(1)(b) of the Migration Act 1958 (Cth) by failing to make a finding on a material question of fact, or an error of law involving an incorrect interpretation of the applicable law within s 476(1)(e), or both. Mr Mohen relied upon the principles discussed by the High Court of Australia in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30.

12. In my view, the Tribunal did not make either a jurisdictional error or an error of law of the type contended for by Mr Mohen.  The Tribunal did not believe the applicant’s evidence that he had been detained following a demonstration and, in particular, it disbelieved the applicant’s evidence to the effect that he suffered those injuries whilst so detained.  In those circumstances, I do not think that the Tribunal was obliged to make a finding about precisely how those injuries were sustained. 

13. The Tribunal cannot be said to have left an aspect of the delegate’s decision unreviewed in the manner referred to in Yusuf at, for example, para 50.  It took into account, as a relevant consideration, the applicant’s claims of torture and, on credibility grounds, made a finding that the injuries had not been sustained in the manner claimed.  In my view, by taking that course, the Tribunal properly exercised its jurisdiction and having made that finding was entitled to reach the conclusion (as it did) that the injuries had not been sustained by the applicant by reason of his real or imputed opinion.  Given the Tribunal’s finding that the injuries had not been sustained in the manner claimed, the determination of precisely how they had in fact been sustained became, in my view, “logically irrelevant” in the sense explained by Gleeson CJ and McHugh J in Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at par 85.

14. Without intending any discourtesy to counsel for the applicant, I have scrutinised the Tribunal’s reasons to see whether they disclose any other jurisdictional error, error of law or any other reviewable error.

15. In my view, they do not disclose any such error.  The Tribunal can be seen from its reasons to have understood the relevant law and the matters upon which it had to be satisfied. 

16. The Tribunal rejected the applicant’s claims because it did not believe him.  It gave its reasons for that disbelief which included reliance upon country information from independent sources.  In my view, the Tribunal did not commit any reviewable error in deciding to disbelieve the applicant.

17. Furthermore, in respect of the applicant’s main claim relating to the demonstration in May 1998, the Tribunal can be seen to have made an alternative assessment by putting aside its credibility findings for the time being.  It then reached the same conclusion that there was no real chance that the applicant would be persecuted by reason of his political opinion if returned to Iran now or in the reasonably foreseeable future.  I do not think that it committed any reviewable error when it took that course and reached that conclusion.

18. In my opinion, the Tribunal correctly interpreted the law, applied the law to the facts as found by it and, in doing so, asked itself the right question.  It did not ignore any relevant material or act otherwise in a way that affected the exercise of the power conferred upon it. 

    CONCLUSION

19. The application will be dismissed with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr.

A/g Associate:

Dated:             19 July 2001

Counsel for the Applicant:	Mr G P Mohen
Counsel for the Respondent:	Mr P R Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 July 2001
Date of Judgment:	19 July 2001