Hamidi, Abdol Amir v Minister for Immigration & Ethnic Affairs

[1996] FCA 639

CATCHWORDS

NO ISSUE OF PRINCIPLE

Migration Act 1958 (Cth): s476

Administrative Decisions (Judicial Review) Act 1977; s5

ABDOL AMIR HAMIDI v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

No WAG 109 of 1995

CORAM:  HILL J
PLACE:  SYDNEY (Heard in Perth)
DATED:  26 JULY 1996

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
WESTERN AUSTRALIA DISTRICT REGISTRY)     No WAG 109 of 1995
  )
GENERAL DIVISION                  )

BETWEEN:ABDOL AMIR HAMIDI

Applicant

AND:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

CORAM:    HILL J
PLACE:    SYDNEY (Heard in Perth)
DATED:    26 JULY 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application be dismissed.

1. 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)     No WAG 109 of 1995
  )
GENERAL DIVISION                  )

BETWEEN:ABDOL AMIR HAMIDI

Applicant

AND:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

CORAM:    HILL J
PLACE:    SYDNEY (Heard in Perth)
DATED:    26 JULY 1996

REASONS FOR JUDGMENT

The applicant, Mr Hamidi, is a citizen of Iran.  He arrived in Australia on 9 September 1994 as a seaman aboard an Iranian ship but jumped ship in Fremantle and subsequently applied for a protection visa on 23 September 1994.  His application was refused and he applied to the Refugee Review Tribunal for a review of that decision.

The Tribunal affirmed the decision of the Minister's delegate that Mr Hamidi was not entitled to the grant of a protection visa and subsequently Mr Hamidi applied to this Court for judicial review. The application was lodged in time and there is no suggestion that the Court lacks jurisdiction to hear it, subject, however, to s476 of the Migration Act 1958 (Cth) which limits the grounds upon which this Court may review decisions of the Tribunal.

MR HAMIDI'S CASE BEFORE THE TRIBUNAL
         Mr Hamidi's claim for refugee status turned substantially upon three incidents.  The first incident occurred in November/December 1992 when, according to Mr Hamidi, he and his wife were walking when the wife's scarf slipped a little and her hair was exposed.  They were seen by the police who insulted Mr Hamidi and his wife.  A fight thereafter developed in which Mr Hamidi punched one of the policemen, breaking that person's nose.  Mr Hamidi was arrested and detained for three months.  He was not physically maltreated in this time.  He says that after his release he was demoted from his job as a supervisor of cargo deliveries with the national shipping line to the position of an ordinary seaman, working as a "wiper".

Approximately three months after his release, Mr Hamidi went to sea and returned approximately four months later for six days shore leave.  His house was visited in that time by members of the police who confiscated a video recorder and some cassettes which had been purchased in Dubai and illegally brought into the country.  In consequence Mr Hamidi was fined an amount of approximately US$200.  This was the second incident.

Ultimately, Mr Hamidi returned to sea for another period of service when his vessel arrived in Australia.  Mr Hamidi rang his wife and was told that the police had been at the house asking for him.  Mr Hamidi said that his wife had told him that his cousin had been executed three days earlier as a result of killing a military colleague who had informed the authorities that the cousin was in possession of subversive political materials.  The cousin had, in fact, been arrested a week before Mr Hamidi left Iran to meet his ship in Korea.  He learned that the cousin had revealed under duress that he had obtained subversive materials from Mr Hamidi.  This was the third incident.

Mr Hamidi had, in his initial interview with a Department officer, made no reference to holding political opinions of a subversive nature.

THE TRIBUNAL'S REASONS
         The Tribunal rejected Mr Hamidi's evidence.  It did so for a number of reasons.  First, there was information before it, from the Australian Department of Foreign Affairs and Trade, that a person at risk in Iran from the authorities would be unlikely to receive a valid passport and exit visa.  Mr Hamidi had received these without apparent difficulty.  Secondly, the Tribunal had difficulty in accepting that Mr Hamidi had been demoted when his job as a seaman was more lucrative than the job he had earlier.  As a seaman he was paid in American dollars.  The Tribunal was of the view that it was implausible for him to have been given a job as a
seaman and to be permitted to go overseas if he was regarded as being an anti-revolutionary.

The Tribunal found support for its view in the fact that only once had the police thereafter visited him and that was at the time when he had illegally imported video equipment and had tapes in his possession.  It noted that he had been allowed to leave the country a few days later.  In addition, the Tribunal was of the view that Mr Hamidi had exaggerated his evidence because in his initial application he had spoken of random house raids, when in his sworn evidence he mentioned merely one visit.

The final matter to which the Tribunal's reasons directed attention was the fact that Mr Hamidi's evidence regarding his cousin was "unacceptable" to the Tribunal.  The Tribunal found Mr Hamidi's evidence not credible.  Indeed, the Tribunal formed the view that Mr Hamidi had fabricated the story concerning his cousin to "enhance" the refugee application.  This being the case, it concluded that there was not a real chance that Mr Hamidi faced persecution should be return to Iran, at least on a convention-related basis.

THE GROUNDS OF THE APPLICATION TO THIS COURT
         Mr Hamidi's application for review contained a number of grounds.  In summary it is said that the Tribunal erred in not accepting Mr Hamidi's evidence when there was no other evidence to contradict him, particularly in respect of the detention, dismissal or demotion and the detention and execution of his cousin.  Then it is said that Tribunal erred in law in determining that he did not have a well-founded fear of persecution, although in what respect is unstated.  Finally, it is said that the Tribunal erred in law in determining that there had not been a change of circumstances since Mr Hamidi left Iran that would lead to a real chance that he faced persecution for a convention reason.  Again, there is no explanation or elaboration to aid in understanding what is meant.

It is trite law, but often not understood by litigants in this Court, that there is only a limited right of review by this Court of decisions of the Refugee Review Tribunal.  The Court is not empowered to consider for itself the material before the Tribunal and substitute its own decision for that of the Tribunal.  Rather, the Court may undertake only a limited review in essence directed at ensuring that there has not been a breach of the law in the Tribunal's reasons.  It is the obligation of the Tribunal to find facts.  An arguably wrong finding of fact does not bring into existence a question of law; it is otherwise where a party dissatisfied with the decision on review seeks to argue that there was no evidence at all upon which the Tribunal was entitled to base a decision reached by it.

As already indicated, the grounds open for judicial review have been limited by the provisions of s476 of the Migration Act 1958. That section permits a review to occur on a no evidence basis, but the ground is, by force of s476(4), not to be taken to be made out unless:

"(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b)the person who made the decision based the decisions on the existence of a particular fact, and that fact did not exist."

Mr Hamidi sought to adduce evidence in the form of a letter purporting to originate from his brother, Hamid.  A translation of that letter suggests that it speaks of the execution of Mr Hamidi's cousin, and accuses Mr Hamidi of being selfish and stupid in indulging in political activities.  The letter is hearsay upon hearsay and would be given little weight if it were admissible at all.

It has been a traditional ground of judicial review that an administrative tribunal had no evidence or other material before it to justify the finding that it made.  The theory that a question of law is involved in such a case is
that if the result of the case cannot be supported by the evidence before the Tribunal, then some unknown factor must have intervened in the form of an error of law. It is less clear why the ground is statutorily limited in the way stipulated in s476(4)(b). Whatever those words mean, and they originate in s5(3)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), they appear to have no application in the present case.

In substance, Mr Hamidi's complaint against the decision is that the Tribunal did not accept his evidence.  His complaint is put squarely in the formulation of a question of law in his "Amended Notice of Appeal" in the following terms:

"2.THE QUESTIONS OF LAW raised on the appeal are -

2.1Whether the Refugee Review Tribunal erred in law in not accepting the evidence of the Applicant, when there was no other evidence to contradict the Applicant, and in particular in respect to;

2.1.1the Applicants dismissal from his job as cargo supervisor, and detention for 3 months (page 7 of decision).

2.1.2the detention and execution of his cousin (pages 8 & 9 of decision)."

It is true that there was no direct evidence contradicting Mr Hamidi's evidence.  But it does not follow from the fact that there was no evidence in contradiction that the Tribunal was compelled to accept the evidence of Mr Hamidi.  It formed the view that his evidence involved embellishment or fabrication.  The Tribunal had the advantage of observing Mr Hamidi give his evidence.  That is an advantage which I did not, and was not permitted to, have.

It is, however, not true to say that the Tribunal in concluding that it did not accept Mr Hamidi's evidence did so solely on its own impressions.  Background information, which the Tribunal has from the Australian Department of Foreign Affairs, was in conflict with Mr Hamidi's evidence.  Further, the Tribunal found Mr Hamidi's evidence concerning his cousin to be unacceptable because, when Mr Hamidi had originally lodged his application, he had not mentioned the fact that he held views unacceptable to the Iranian Government.  Further, the Tribunal was of the view that it was not credible that Mr Hamidi would have kept material politically dangerous to him in his house after he had been detained for three months by the police for apparent subversive activity.

There is, of course, the possibility that Mr Hamidi was telling the truth.  If so, he would surely view the Tribunal as inclined to require a higher standard of proof than might be expected of an administrative tribunal.  But Parliament has legislated so that the Tribunal is given the final word on matters of fact and the courts are required to stand mute when findings of fact (for which there is some evidence), adverse to an applicant, are made and when injustice may well be done.  That will be little consolation to Mr Hamidi if he is deported to Iran and if he does indeed suffer the same fate as his cousin.

I have considerable sympathy for Mr Hamidi.  He appeared before me unrepresented.  At the end there was only one thing he was able to say to me and that was, that the Tribunal must have made a mistake in law because it came to the wrong conclusion.  That is a very chilling comment indeed, if it is true.

At the close of the hearing I requested the Australian Government Solicitor to forward to me a copy of the transcript of the proceedings before the Tribunal. I did so because, Mr Hamidi not being represented, I wished to see for myself whether there was any matter in the transcript which suggested that the Tribunal's decision could be set aside. I have read the transcript and there is nothing in it that I am able to find which gives rise to one of the grounds of review permitted by s476.

I am therefore of the view that the application must be dismissed. Mr Hamidi has not shown any matter of law of the kind referred to in s476 of the Migration Act justifying a
review of the Tribunal's decision.  He must accordingly pay the costs of the application.

I certify that this and the
preceding nine (9) pages
are a true copy of the Reasons
for Judgment herein of his Honour
Justice Hill.

Associate:

Date: 

Mr Hamidi represented himself.

Counsel and Solicitors      P Macliver instructed by

for Respondent:             the Australian Government Solicitor

Date of Hearing:            28 June 1996

Date Judgment Delivered:         26 July 1996