Dianat v Minister for Immigration and Multicultural Affairs

[2002] FCA 297

FEDERAL COURT OF AUSTRALIA

Dianat v Minister for Immigration & Multicultural Affairs [2002] FCA 297

MIGRATION – appeal from decision of Refugee Review Tribunal refusing to grant a protection visa – whether the Tribunal failed to take into account a relevant consideration

Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802 referred to

SOROOSH DIANAT v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1309 OF 2001

HELY J
20 MARCH 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1309 OF 2001

BETWEEN:	SOROOSH DIANAT APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	20 MARCH 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application 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
NEW SOUTH WALES DISTRICT REGISTRY	N 1309 OF 2001

BETWEEN:	SOROOSH DIANAT APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	20 MARCH 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an Order of Review of the decision of the Refugee Review Tribunal (“RRT”) made on 2 August 2001 in which RRT affirmed the decision of the Minister’s delegate not to grant a protection visa to the applicant.  The application was filed in this Court on 14 September 2001, hence it falls to be determined upon the basis of the Migration Act 1958 (Cth) (“the Act”) as it stood prior to the amendments made to the Act on 2 October 2001.

2. The applicant is a 22 year old citizen of Iran who arrived in Australia on 19 August 1999.  He claimed that as a result of his involvement in student demonstrations at Tehran University in July 1999, he was physically beaten by the Iranian authorities, and an order for his arrest was issued on 1 September 1999 after his departure from Iran on 17 August 1999 in the company of his father. 

3. The applicant produced to RRT what he claimed to be a copy of the “arrest warrant” and a translation of it.  The translation reveals that the document purports to be issued by the General Command of the Islamic Revolutionary Guards Corps.  The document is addressed to the Guards Unit stationed at the airport.  The subject of the document is described as being:

   “Capture and arrest of Mr Soroosh Dianat”.

   The document provides:

   “It is appropriate that Mr Soroosh Dianat, a student of Tehran University, who has travelled abroad on 17/8/1999 with his family, be arrested immediately upon his return and delivered to judicial authorities.”

4. There was also produced to RRT a further document purporting to be issued on behalf of the Commander of the joint Islamic Revolutionary Army of Pasdaran on 11 January 2000 directed to the “Chief Magistrate of the court of investigation of the offenses committed by the rebellious students of Tehran University”.  The subject of that document was described as:

   “Summon and Prosecution of Soroush Diyanat.”

5. The applicant produced these documents to RRT in support of his claim that he had a well-founded fear of persecution if returned to Iran by reason of his political opinion.

6. RRT did not accept that either the document which I have referred to as an arrest warrant or the document purportedly issued on behalf of the Islamic Revolutionary Guard Corps (“the Pasdaran”) on 11 January 2000 was genuine or had any veracity.  RRT was of the opinion that each of the documents was a fabrication.

7. The applicant was then left with his bare claim that he is of adverse interest to the authorities if he returns to Iran.  RRT assessed his claim in that respect.  RRT was unable to accept that the applicant was anything more than a mere participant in the protest activities at Tehran University in July 1999.  RRT did not accept that the applicant was of any adverse interest to the authorities at the time of the demonstrations or after the demonstrations and before he departed Iran, or that he would be of any interest to the authorities because of his participation in the protests of July 1999 if he returns to Iran.

8. The Amended Application for an Order of Review asserts that RRT did not have jurisdiction to make its decision; that the decision was not authorised by the Act or the Regulations; and that RRT erred in law in making the decision. The particulars given of each of these grounds are as follows:

   “The Tribunal failed to take into account a relevant consideration, being whether a document, which it considered only in the context of information about arrest warrants issued by the Courts to the police, could have been a genuine letter to the commander of the Pasdaran (Revolutionary Guards) at Tehran Airport, ordering the applicant’s detention and handing up to the judiciary, should he return.”

   The relevant consideration which the applicant contends that the Tribunal was obliged to take into account, and which it failed to take into account, is whether the document which I have described as the arrest warrant could be what it purported to be, that is to say a genuine order for the applicant’s arrest issued by the Pasdaran.

9. RRT’s consideration of this aspect of the matter is contained in pars 120-122 of its reasons for decision, which are as follows:

   “120.The applicant has claimed that there is an outstanding arrest warrant against him, at the airport, and if he returns to Iran, the authorities will arrest him immediately.  He claimed that as a result of his participation in the demonstrations of July 1999, the authorities wanted to arrest him.  He claimed that his mother received a copy of the arrest warrant on her return to Iran in September 1999.  The applicant produced a copy of the arrest warrant in support of his claim.

   121.There are difficulties with the document.  It is not addressed to a person or to a distinct unit, just to the ‘Guards Unit stationed at the Airport’.  It was not sent by a specific person but from the ‘General Command of the Islamic Revolutionary Guards Corps’.  It had an illegible stamp and signature, although the applicant claimed that he could make them out.  It was the applicant’s evidence that his mother obtained a copy of the arrest warrant at the airport when she returned to Iran.  It was also his evidence that a copy of it was sent to his family.  The purported arrest warrant indicates that it has been copied to the applicant’s family.

   122.The independent evidence above at paragraphs 99 to 102 indicates that arrest warrants are issued by the judicial authorities, not by the Revolutionary Guards, directly to the police for the arrest of the defendant.  The defendant is never provided with a copy of the warrant.  Iranian law requires that defendants be informed of charges against them within 24 hours although this requirement is not always adhered to.  Under no circumstances would a copy of an arrest warrant be given to the person charged or to a member of his family, and the defendant never has the right to see it.  In light of this evidence and the difficulties I have with the document, I am unable to accept that the document has any veracity or is genuine.  I am of the view that it is a fabrication.”

10. As I have indicated, RRT also rejected the second document on which the applicant relied as a fabrication, but the Amended Application, and the applicant’s submissions, were confined to the document which I have referred to as an arrest warrant.

11. RRT had information before it to the effect that the Pasdaran, although under the same command as the regular armed forces, have an autonomous and parallel existence to them.  The Pasdaran is responsible, amongst other things, to maintain internal security “to consolidate the revolution’s hold on power”.  RRT also had information before it to the effect that there are two court systems in Iran which also operate in parallel – the traditional courts, and the Islamic Revolutionary Courts set up in 1979 to try “political offences, narcotics crimes, and ‘crimes against God’” and official corruption.

12. Paragraphs 99-102 of RRT’s reasons are as follows:

    “99.DFAT reports that in relation to the procedure for issuing arrest warrants in Iran, warrants are issued by the judicial authorities directly to the police for the arrest of the defendant.  The defendant is never provided with a copy of the warrant.  Iranian law requires that defendants be informed of charges against them within 24 hours although this requirement is not always adhered to.

    100.In the case of lesser charges, including misdemeanours such as breach of trust or failure to pay alimony, the defendant receives a summons to appear in court.  The summons is issued by the judicial authorities and sent to the address of the defendant, by the bailiff of the Ministry of Justice.  Unlike arrest warrants, a summons can be served regardless of whether or not the defendant is present, and can be kept by the individual concerned.  In contrast, an individual charged with serious offences such as manslaughter or major drug offences would not be summonsed to appear in court.  Rather, a person charged with an offence of this severity, would simply be arrested by police who would possess an arrest warrant.

    101.After its issue by the judicial authorities to the police, the arrest warrant is retained by the police who place it on the defendant’s file.  It is not returned to the judicial authorities.  Under no circumstances would a copy of an arrest warrant be given to the person charged or to a member of his family.  The defendant never has the right to see it.  As previously mentioned, the defendant’s only right is to be told within 24 hours the reason for his detention.

    102.The embassy’s legal firm has seen many forged Iranian official documents including arrest warrants.  Forgeries often consist of whiting out some descriptions on the summons (not on an arrest warrant because the defendant would never have this in the first place) and then making a photocopy of the document, or simply printing fake judicial documents and then filling them in (DFAT, Country Information Report, Warrants of Arrest, CIR 315/97, 24 July 1997, CISNET CX23992).”

13. The applicant contends that the DFAT report which deals with the procedure for the issuing and execution of arrest warrants in Iran relate to warrants which are issued by the judicial authorities rather than to orders emanating from the Pasdaran. In the applicant’s contention, RRT failed to consider whether a document such as the document which I have referred to as “the arrest warrant” could have been issued by the Pasdaran, and that this was a failure on the part of RRT to exercise its jurisdiction and is thus judicially reviewable under ss 476(1)(b), 476(1)(c) and 476(1)(e) of the Act.

14. It is clear from the passages of RRT’s decision which I have quoted above, that RRT did address the question whether the document which I have referred to as the arrest warrant was a document issued on behalf of the Pasdaran, as it purported to be.  RRT both addressed that question and answered it unfavourably to the applicant.  It answered the question unfavourably to the applicant for at least three reasons.  First, there were difficulties apparent on the face of the document.  Second, the independent evidence indicates that arrest warrants are issued by the judicial authorities, and not by the Revolutionary Guards or Pasdaran.  Third, forgeries of Iranian official documents, including arrest warrants, were common.

15. In par 122 of its reasons for decision RRT asserts that the independent evidence to which it referred at pars 99-102 indicates that arrest warrants are issued by the judicial authorities and not by the Revolutionary Guards. The independent evidence in question consisted of a response to the question: “what is the procedure for the issuing and execution of arrest warrants in Iran?” The response certainly indicates that warrants are issued by the judicial authorities directly to the police, but there is no specific reference in the response to the fact (if it be a fact) that arrest warrants are not issued by the Revolutionary Guards. At the very highest from the applicant’s point of view, it may be that RRT’s assertion that the independent evidence indicates that arrest warrants are not issued by the Revolutionary Guards is errant fact finding on its part. However, that falls far short of establishing that RRT failed to take into account a consideration made mandatorily relevant by the Act: see Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802 at par 42 per Allsop J.

16. Accordingly, the application for an Order of Review should be dismissed with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             20 March 2002

Counsel for the Applicant:	L Karp
Solicitor for the Applicant:	McDonnells Solicitors
Counsel for the Respondent:	D Jordan
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	12 March 2002
Date of Judgment:	20 March 2002