Ghojavand v Minister for Immigration and Multicultural Affairs

[2001] FCA 1336

FEDERAL COURT OF AUSTRALIA

Ghojavand v Minister for Immigration & Multicultural Affairs [2001] FCA 1336

ASADOLLAH GHOJAVAND v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 227 OF 2001

HILL J
22 AUGUST 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 227 OF 2001

BETWEEN:	ASADOLLAH GHOJAVAND 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	W 227 OF 2001

BETWEEN:	ASADOLLAH GHOJAVAND 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 Ghojavand, is a citizen of Iran.  He arrived in Australia on 21 December 2000 and applied thereafter for a protection (class XA) visa. 

2. Generally speaking it is a criterion for the grant of such a protection visa that the Minister or, in the event of a review by the Refugee Review Tribunal (the “Tribunal”), the Tribunal be satisfied that the person applying is a refugee within the meaning of the 1951 Convention Relating to the Status of Refugees as affected by the 1967 Protocol Relating to the Status of Refugees (herein compendiously referred to as the “Convention”).

3. Article 1A(2) of the Convention defines a refugee to be a person who:

   “… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular 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 …”

4. It was the applicant’s case before the Tribunal that he had a well-founded fear of being persecuted in Iran for reasons of an imputed political opinion that he was a supporter of the Mojahedin group.  He claimed to have conducted an activity of installing satellite dishes in Iran.  He said that in 1996 his shop had been raided and equipment confiscated and that he was then arrested.  He was required to give an undertaking not to deal in satellite dishes.  He claimed also to have been arrested again in 1999 by soldiers of the Imam.  At the time he was installing a satellite dish in a private home.  He claimed that the person for whom the dish was being installed had been a member of the Mojahedin in the past and his case was that the authorities would connect him with the group also.  He said he was detained after an appearance before the Court of the Islamic Revolution for some twenty days and tortured.  A further two months detention followed before he was sentenced to ten months imprisonment and a fine.  He suffered, he said, a hearing injury as a result of the treatment there.

5. More expansive details of the claims he made at the hearing are set out in the Tribunal’s Reasons for Decision.  They included a claim that his wife had been arrested in 2000 as a result of his installing two satellite dishes one of which was tuned to the Mojahedin channel.  At the hearing a witness, a Mr Mallogoli, gave evidence which is also set out in the Tribunal’s Reasons for Decision and which largely supported Mr Ghojavand’s case.

6. The Tribunal accepted that Mr Ghojavand had carried on an activity, inter alia, of installing satellite dishes and that it was possible that in 1996 he had been arrested for selling them.  Apparently satellite dishes have been illegal in Iran since 1995.  The Tribunal considered the position of satellite dishes in Iran in some detail.  It accepted that the applicant may have had problems in 1999 as a result of an installation of a satellite dish but said it was fanciful that he would be imputed with Mojahedin political opinion as a result.

7. The Tribunal, for reasons which it set out, did not accept that the applicant had been beaten in 1999 or tortured.  It found his evidence about his detention and sentencing to be unsatisfactory.  The Tribunal did not accept an assertion that the applicant’s wife had had difficulties in his absence or that he had had to flee his home on 19 May 2000.  In essence, the Tribunal was of the view that such difficulties as the applicant had experienced resulted from his breaching a law of general application, namely, a law prohibiting satellite dishes.  The Tribunal further was of the view that any difficulties he had experienced did not arise for reasons of a Convention nature.  The Tribunal also considered the applicant’s evidence about how he had left Iran.  It was not of the view that he would face persecution on his return for that reason either.

8. The applicant was not represented before me, although he had the assistance of a qualified interpreter.  He sought to tender a letter from his wife which he said he had received after the Tribunal hearing.  In that letter his wife referred to having been visited by the authorities in relation to his conviction and to harassment she and the children had endured as a result of what had happened to the applicant.

9. In addition to an initial submission filed in this Court prior to the hearing of his application, Mr Ghojavand has prepared a draft outline of submissions with help from friends.  Not surprisingly, given that he has no legal training, he complains about the findings of fact which the Tribunal has made.  He complains also that he told the Tribunal that he could obtain information proving his imprisonment in a rather awful way, namely, by arranging that his wife apply for a divorce when as a result of that application evidence would become available from the Revolutionary Court about his conviction.  The Tribunal did not respond to this.

10. He complains also that the Tribunal did not listen to the witness who gave evidence on his behalf.  In this respect his real complaint is that the Tribunal appears really not to have been impressed by that evidence.  Additionally, he complains that the Tribunal could have itself taken steps to find out that he was in fact imprisoned but that while he had invited it to do so, the Tribunal had done nothing.  He says also that the Tribunal erred in failing to consider the possibility that he departed Iran illegally and the relevance of that.  This is despite the fact that the Tribunal did at least mention the matter and that on its face it did give it some consideration.

11. It is difficult to see that the letter from the wife can assist the applicant in these proceedings.  The matters in the letter no doubt would have been relevant to the Tribunal itself but there was nothing in the letter which could assist Mr Ghojavand in this Court in support of his application for judicial review.  Although the Tribunal has discretion to make such inquiries as it believes necessary, that does not impose upon the Tribunal a duty to do so.  That question has been discussed in a number of cases: see, for example, Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 at [86]; Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277 at [29] to [32] and Majeed v Minister for Immigration and Multicultural Affairs [2000] FCA 470 at [18] to [22].

12. Essentially, the legislation proceeds on the basis that an applicant to the Tribunal is required to prove his or her case.  It ignores the real difficulty faced by an applicant in detention in doing so.  In any event, the matters raised by Mr Ghojavand are matters relevant to the merits of his case in the Tribunal and not to the question whether the Tribunal itself made some reviewable error.

13. I have sought to read with some care the Tribunal’s Reasons for Decision in the knowledge that Mr Ghojavand was not represented.  I fully understand his apprehension that without English as his native language or legal training he is at a real disadvantage.  It is, however, not a ground of review that he is not legally represented and there is nothing I can do about that apart from share his view that justice does not seem always to be done.  However, Mr Ghojavand has not made out any ground of review which would entitle me to set aside the decision.  I have therefore no alternative but to dismiss the application with costs.

I certify that the preceding thirteen (13) 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:	M Ritter
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 August 2001
Date of Judgment:	22 August 2001