Heidari v MIMA

[2001] FCA 1837

FEDERAL COURT OF AUSTRALIA

Heidari v MIMA [2001] FCA 1837

HASSAN HEIDARI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 288 OF 2001

BRANSON, NORTH & GYLES JJ
26 NOVEMBER 2001
PERTH (Heard in part via video-link)

IN THE FEDERAL COURT OF AUSTRALIA
WEST AUSTRALIAN DISTRICT REGISTRY	W288 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:	HASSAN HEIDARI APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	BRANSON, NORTH & GYLES JJ
DATE OF ORDER:	26 NOVEMBER 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The appeal 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
WEST AUSTRALIAN DISTRICT REGISTRY	W288 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:	HASSAN HEIDARI APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BRANSON, NORTH & GYLES JJ
DATE:	26 NOVEMBER 2001
PLACE:	PERTH (Heard in part via video-link)

REASONS FOR JUDGMENT

BRANSON J:

1. I agree with the reasons of North J and with the order that he proposes.

I certify that the preceding one (1) numbered paragraphs is a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:             19 December 2001

IN THE FEDERAL COURT OF AUSTRALIA
WEST AUSTRALIAN DISTRICT REGISTRY	W288 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:	HASSAN HEIDARI APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BRANSON, NORTH & GYLES JJ
DATE:	26 NOVEMBER 2001
PLACE:	PERTH (Heard in part via video-link)

REASONS FOR JUDGMENT

NORTH J:

1. This is an appeal from a decision of Wilcox J made on 2 July 2001 dismissing an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 31 January 2001.  The Tribunal affirmed a decision of the delegate of the respondent, the Minister for Immigration and Multicultural Affairs, not to grant the appellant, Mr Hassan Heidari, a protection visa.  The decision of the delegate was made on 26 October 2000.

2. Mr Heidari is a citizen of Iran.  He arrived in Australia on 27 September 2000.  Before the Tribunal, Mr Heidari essentially made his claim for a protection visa on three bases: 

   (1)He was associated with the opposition to the current regime because he had engaged in selling TV satellite dishes.  He claimed to have been detained in 1999 for one month, then shortly afterwards for five months.  He was asked to spy for the security / intelligence forces in Iran and refused. 

   (2)He was discriminated against by reason of his Arab ethnicity, particularly in employment.  He was dismissed from a job in a steel mill and refused other jobs for this reason. 

   (3)He left Iran illegally and applied for asylum in Australia.  Both circumstances would lead to persecution on return to Iran.

   THE DECISION OF THE TRIBUNAL

3. The Tribunal’s decision is comprehensive.  It sets out Mr Heidari’s claims in detail and refers to country information on Arabs in Iran, satellite TV, imputed political profile, and return to Iran.  It also records the fact that during the hearing the Tribunal raised with Mr Heidari numerous problems which it saw in his evidence.  The Tribunal records in its decision the response given by Mr Heidari to these concerns.  The Tribunal also records in its decision that it wrote to Mr Heidari after the hearing and raised further questions of concern.  Mr Heidari’s replies were also referred to in the decision of the Tribunal.  This process suggests that the Tribunal took a thorough and conscientious approach to the application.

4. In the result, the Tribunal concluded that:

   (1)Mr Heidari was not a credible witness in relation to critical claims;

   (2)It was not satisfied that any problems faced by Mr Heidari by reason of his Arab ethnicity were serious;

   (3)It was not satisfied of the truth of Mr Heidari’s claims that he sold TV satellite dishes or that he was detained; and

   (4)Illegal departure or the making of an application for refugee status in Australia did not give rise to an imputed political opinion in Iran sufficient to ground a well-founded fear of persecution.

   THE PROCEEDINGS BEFORE WILCOX J

5. In the proceedings before Wilcox J.  Mr Heidari contended that the Tribunal had been selective in its consideration of the evidence.  He disagreed with the findings of fact made by the Tribunal concerning alleged persecution on racial grounds, the conclusion concerning the sale of TV satellite dishes, and the absence of risk on return to Iran arising from the illegal departure and the making of an application for refugee status in Australia.

6. Wilcox J rejected the application for review on the basis that each of the grounds of review was a complaint that the Tribunal had made a wrong finding of fact, and that the Court does not have jurisdiction to review a decision of the Tribunal on this basis.  His Honour said at par 14 as follows:

   “During the course of discussion with Mr Heidari, he indicated dissatisfaction with the limitations on the Court’s power of review.  I understand it must be very frustrating for a person, who feels the Tribunal has made a mistake of fact in relation to his case, to be told the Court cannot interfere with the Tribunal’s decision.

   Mr Heidari’s reaction is shared by many people who come to the Court in this type of case.   I understand and sympathise with the frustration.  However, the Court is bound by a statute passed by the Australian Parliament.  I must obey the limitations set out in that Act of Parliament.”

7. In response to the fact that Mr Heidari was not legally represented before Wilcox J, his Honour also said at par 16:

   “Because I expected Mr Heidari would not have legal representation, I read the [Tribunal’s] decision carefully before coming into court.  I wished to consider whether there appeared to be any ground of review available to Mr Heidari under s 476 of the Act.  It seems to me the reasons for decision do not disclose any such ground, and nothing has been said to indicate such a ground.”

   In consequence, his Honour dismissed the application. 

   THE ISSUES ON APPEAL

8. Mr Heidari filed a notice of appeal to the Full Court against the decision of Wilcox J.  The notice of appeal is handwritten and I expect that it was formulated by Mr Heidari.  The grounds of appeal state as follows:

   “The applicant had political activities against Iranian regime by selling satellite equipment which allowed Iranian people to watch television programs from other parts of the world.  He had been arrested and detained for this [sic] activities.  After releasing he was arrested again.  He has fled from Iran by Tunisian passport. 

   There was no evidence or other material to justify the making of the decision that the applicant did not have a well-founded fear of persecution by reason of his political opinion, real or imputed, if he returned to Iran within the reasonably foreseeable future. 

   The decision involved an error of law being an error of law 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.”

9. Under the heading ‘Orders Sought’ in the notice of appeal there is a mixture of further grounds and a description of the orders sought.  That section of the notice of appeal states as follows:

   “The decision is contrary to law. 

   The decision places the Applicant at serious risk of being forcibly returned to Iran where he has a well-founded fear of being persecuted.  The Applicant’s ethnicity has not been considered in RRT decision as race problem in Convention laws.”

10. Mr Heidari appeared for himself by video-link from Curtin Immigration Reception and Processing Centre on the appeal.  In his oral submissions, he made three points.  First, he said that the Tribunal was wrong in its consideration of the issue of racial discrimination.  He said that the Tribunal member did not consider the facts but rather decided the case on her own opinion.  Second, Mr Heidari said the Tribunal was wrong not to accept his claims concerning illegal departure and the effect of making an application for refugee status in Australia.  These two arguments seem to be the same as the arguments which Mr Heidari put to Wilcox J on these issues.  The third point which Mr Heidari made was that the Tribunal failed to refer to his evidence that the security / intelligence service attempted to recruit him to spy for Iran.

11. In the passage which I have quoted from the judgment of Wilcox J, his Honour explained the limits on the jurisdiction of the Federal Court in a matter such as this.  On this appeal, the presiding judge has, on several occasions, again emphasised those same limits.  In relation to Mr Heidari’s arguments on the appeal concerning racial discrimination and illegal departure, he has repeated the arguments put before Wilcox J.  Those arguments amount to a disagreement by Mr Heidari with the fact findings made by the Tribunal.  In my view, Wilcox J was correct that the Tribunal did not make any error which the Court can correct.  In relation to the issues of racial discrimination and illegal departure, the Tribunal made findings of fact.  It is not open to this Court, nor was it open to Wilcox J, to set aside a decision of the Tribunal on the basis that the Tribunal’s fact‑finding was allegedly wrong. 

12. The third matter raised on appeal by Mr Heidari was that the Tribunal failed to refer to his evidence that the security / intelligence service attempted to recruit him to spy for Iran.  This claim faces an initial problem, namely that it does not appear to have been put to Wilcox J.  But in any event, in my view, there is no substance to this argument.  Mr Heidari contended that the alleged invitation to spy for Iran was made while he was in detention.  The Tribunal found that Mr Heidari had not been detained as he claimed.  Having made that finding, it was implicit that the Tribunal rejected the claim that Mr Heidari was invited to spy for Iran. 

13. For these reasons the appeal must be dismissed.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:             19 December 2001

IN THE FEDERAL COURT OF AUSTRALIA
WEST AUSTRALIAN DISTRICT REGISTRY	W288 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:	HASSAN HEIDARI APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BRANSON, NORTH & GYLES JJ
DATE:	26 NOVEMBER 2001
PLACE:	PERTH (Heard in part via video-link)

REASONS FOR JUDGMENT

GYLES J:

1. I also agree with the reasons of North J and the order he proposes.

I certify that the preceding one (1) numbered paragraphs is a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:             19 December 2001

The applicant appeared via video-link on his own behalf.

Counsel for the Respondent:	Mr M Ritter
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 November 2001
Date of Judgment:	26 November 2001