Heidari v Minister for Immigration and Multicultural Affairs

[2001] FCA 1903

FEDERAL COURT OF AUSTRALIA

Heidari v Minister for Immigration and Multicultural Affairs

HASSAN HEIDARI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 33 of 2001

WILCOX J
2 JULY 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 33 of 2001

BETWEEN:	HASSAN HEIDARI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	2 JULY 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The application for review be dismissed.

2.The applicant pay the respondent’s costs of the proceeding.

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 33 of 2001

BETWEEN:	HASSAN HEIDARI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	2 JULY 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

WILCOX J:

1. This is an application by Hassan Heidari for review of a decision by the Refugee Review Tribunal affirming a decision not to grant to him a protection visa. 

2. At the Tribunal hearing, Mr Heidari advanced a number of grounds for claiming refugee status.  In a lengthy statement of her reasons for decision, the Tribunal member considered each of these grounds; but found none of them to be established.  She therefore affirmed the initial decision that had been made by a delegate of the Minister for Immigration and Multicultural Affairs, the present respondent.

3. Mr Heidari is being held in detention at Derby.  This application has been heard in Perth by video-link to Derby.  Mr Heidari has been assisted by an interpreter in Perth.  I understand he has had the benefit of legal advice from a pro bono lawyer recruited by the Registrar at the request of a Judge of the Court. 

4. At the commencement of the hearing, I mentioned to Mr Heidari that the grounds of review, available before the Court, are extremely limited. They are those set out in s 476 of the Migration Act 1958. Mr Heidari told me he was aware of that fact. However, the matters he raised with me are entirely questions of fact, falling outside s 476.

5. Mr Heidari submitted the Tribunal had been selective in consideration of the evidence.  He said that, although the Tribunal member accepted much of the material suggesting discrimination, she decided to ignore the effect of that material.  Mr Heidari referred to three of the grounds he had advanced to the Tribunal, as reasons why he should be regarded as a refugee.

6. The first ground is racial discrimination.  Mr Heidari is an Iranian citizen, but an ethnic Arab.  He claimed there was discrimination in Iran against Arabs.  He claimed this discrimination caused him to be dismissed from employment in a foundry. 

7. The Tribunal member set out a considerable amount of information, obtained from various sources, about discrimination against Arabs in Iran.  The material included reports by the Australian Department of Foreign Affairs and Trade, a relatively recent report by the United States Department of State and various media reports.  The Tribunal accepted there may have been discrimination against the Arab community during the Iran-Iraq war.  However, the Tribunal was not satisfied there was general, persisting discrimination against Arabs in Iran.  Nor was the Tribunal satisfied Mr Heidari had been the victim of discrimination for that reason.  In particular the Tribunal was not satisfied Mr Heidari lost his job at the foundry because of racial discrimination. 

8. Mr Heidari has made it clear to me that he does not agree with the Tribunal's findings in respect of racial discrimination.  I understand what he said to me; but I have to repeat that the Court has no power to review the Tribunal's findings of fact.

9. The second matter raised by Mr Heidari today concerns a business that he ran, in which he sold electronic equipment.  This included satellite receiving equipment, the sale of which is banned in Iran.  Mr Heidari suggested to the Tribunal that he had been detained because he sold satellite receiving equipment and this was persecution on account of his political opinion. 

10. The problem that faces Mr Heidari in this Court, in relation to this second matter, is that the Tribunal was not satisfied of the truth of his claims about selling satellite equipment and being detained for that reason.

11. Once again, Mr Heidari has made it clear that he disagrees with the Tribunal's decision.  But, once again, it is impossible for me to substitute my view, about the correctness of the claims, for the findings made by the Tribunal.  In saying that, I do not wish Mr Heidari to think I am indicating a view in his favour about the matter.  I have no view, because I have not myself considered whether or not the factual findings of the Tribunal are correct.  The reason why I have not done this is because it is outside the function of the Court to review the Tribunal’s findings of fact. 

12. The third matter referred to by Mr Heidari today is the question of what will happen to him, if he is returned to Iran, because of his illegal departure and application for asylum in Australia.

13. The Tribunal accepted that Mr Heidari may have left Iran illegally.  The Tribunal obtained information as to the practice of the Iranian government, in dealing with people who leave Iran illegally and are sent back to Iran after failing to obtain asylum in another country.  On the basis of that material, the Tribunal found that, at worst, such a person may be verbally harassed.  It found there is no evidence that deportees face significant problems upon return to Iran.  Once again, that is a finding of fact.  It is not for me to form an opinion as to whether or not it is correct.

14. 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.

15. Mr Heidari asked me where he could go, if the Court cannot help him. The only answer I can give is to draw attention to s 417 of the Migration Act.  That section empowers the Minister for Immigration and Multicultural Affairs to substitute a more favourable decision than the decision given by the Tribunal.  Mr Heidari is free to write to the Minister, asking him to review his case and to exercise that power.  If he wishes to do that, I am sure he will be told by officers at the detention centre how to get a letter to the Minister.  It is for Mr Heidari to decide whether it is worthwhile for him to take that course.  I offer no opinion as to whether the Minister is likely to accede to his request.

16. The decision given by the Tribunal in this case is lengthy and comprehensive. Because I expected Mr Heidari would not have legal representation, I read the 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. It follows that I must dismiss the application.

17. The order of the Court is that the application for review be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:   2 July 2001

The Applicant appeared via video on his own behalf.
Counsel for the Respondent:	M T Ritter
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 July 2001