Heshmati, J. v The Minister for Immigration, Local Government & Ethnic Affairs

[1992] FCA 860

JUDGMENT No. .&.!G..../ A.&

IN THE FEDERAL COURT OF AUSTRALIA

)

\

VICTORIA DISTRICT REGISTRY

j	NO. VG 147 of 1992
1	NO. VG 438 of 1992

GENERAL DIVISION

1

B E T W E E N :

JAFAR HESHMATI

Applicant

T H E M I N I S T E R F 0 R IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS AND OTHERS

Respondents

19 NOVEMBER 1992 KEELY J .

REASONS FOR JUDGMENT

In matter No. VG 139 of 1992 the substantive application was

heard by Sweeney J. who, on 30 October 1992, dismissed the

application and granted a stay of 21 days. Counsel for Mr.

was filed yesterday afternoon; the appeal is matter No. 438 of 1992. In matter No. VG 147 of 1992 the applicant's further	to leave granted by Sweeney J. on 17 September 1992, sought,	amended application, dated 21 September 1992, filed pursuant
amongst other things, declarations, injunctions and damages. The applicant's counsel said (transcript 55) that the
applicant has sought legal aid in each matter, that each
application has been rejected and that he is seeking to review one of those rejections and will seek to review the other.
During the Migration Directions List yesterday counsel for
the respondents did not object to the grant to the applicant
of leave to file in court a notice of motion, returnable
immediately, in matter No. VG 147 of 1992 and in respect of a
proposed appeal from the judgment in matter No. VG 139 of
1992; notices of those motions had been given to the
respondents' counsel at 10.15 yesterday. Nor did the
respondents' counsel object to the hearing of the motions in so far as they sought an order that "the [first] respondent,
by himself, his servants or agents, be restrained from
removing the Applicant from Australia pending the hearing and determination of this matter, or further order". The applications for restraining orders in both matters were
opposed (transcript 8). The two motions were heard together and were the subject of lengthy submissions both by counsel for the applicant (transcript 1-8, 18-56 and, 74-82) and by
counsel for the respondents (transcript 18-18 and 56-74). The Court was informed that an undertaking by the first respondent
that he would not remove the applicant from Australia would
expire at midnight tonight (transcript 27).
After a hearing on 12, 13 and 14 November 1989 Lockhart J. on
22 November 1990 gave judgment dismissing an application by
the applicant to review certain decisions arising from what
were later described by Sweeney J. as "the events at
Tullamarine Airport on 6 September 1989". After a three day hearing the Full Court of this Court on 21 August 1991
dismissed an appeal from that judgment, save that it ordered
that the

Jafar Heshmati ("the applicant") stated that a notice of

appeal against his Honour's decision "will be filed" and it

"respondent refrain from acting further upon the said decision of 17 September 1990 until (a) the appellant has been given the opportunity to make in writing, whether under his own hand or that of his solicitors, such representations as he may be advised upon the question of whether the letter of 6 December 1989 was written with the sole or dominant purpose of enhancing his claim to treatment as a refugee "sur place" and (b) those representations have been considered by the respondent or his delegate, and the appellant or his solicitors have been notified in writing of the result of that reconsideration." (31 F.C.R. at 134)

On 2 March 1992 (i.e. more than six months after the Full

Court's order was made) the applicant's solicitor provided to

the respondent minister certain "representations" on the

instructions of the applicant. It was said that the delay in

doing so was "contributed to by an application for legal aid,

which went through the process of appeal" - see p. 23 of the reasons for judgment of Sweeney J. ; the "representations" by the applicant's solicitors "on behalf of Mr. Heshmati" are set

out at pages 22-23 of those reasons.

It is noted that those representations did not include any

direct statement by the applicant, sworn or unsworn, "upon the

question of whether the letter of 6 December 1989 was written

with the sole or domlnant purpose of enhancing his claim to treatment as a refugee 'sur place'" (the words quoted are taken from the order of the Full Court - set out above). In

this connection the applicant's counsel accepted (transcript

54) that the respondents ' counsel "has a serious question

about Mr. Heshmati's general credibility and would dispute

many of these allegations [by the applicant] . " He said in his reply (transcript 76), as to "the credibility problems of Mr. Heshmati historically" that "we accept that there is a

conflict and we have to face up to that, we cannot shrink from

it".

In his reasons for judgment in the Full Court, (delivered 22

November 1990) Gummow J. observed :-

... The appellant also sought to challenge various findings of fact which led to the	denial of the application for resident	status. Many of these findings were
directly based upon or linked to adverse findings as to the credibility of the appellant's account of events. Plainly, it was open upon the materials for the decision-maker to conclude as he did. ..."

. . . "In so far as a finding adverse to the credibility of the appellant was an essential preliminary to the ultimate step of refusing the application under S 6(2) of the Act, it was a finding well open to the decision-maker ..." (31 FCR at 134)

Jenkinson J. and I in our respective reasons for judgment agreed with that part of the reasons for judgment of Gummow J.

Lockhart J, in his reasons (delivered 22 November 1990) for

the judgment from which the appeal to the Full Court was

brought, made the following observations as to "untruths" and

"false" stories by the applicant:-

"The untruths which were told by the applicant were of most material matters relevant to any application for resident status or for consideration as a refugee because the matters about which he lied went to the fundamentals of the factual matrix supporting those applications. He did not tell the authorities here that he had been an applicant for refugee status in Greece. Nor did he tell them what he had told the Greek authorities and the fact that what he had said there was totally different from what he was saying in Australia. There was no mention in what he told the Greek authorities of his being a Mojahidin supporter or an activist, which is fundamental to his story in Australia." (at p. 32-33)

"... There is much in the longer version of the

applicant's story which he gave here that would	have led any reasonable decision-maker to
conclude that it was false." . . . (P. 34)
"This is a case where at the heart of the relevant decisions under attack was the finding by the relevant decision-maker that the credibility of the applicant was in grave doubt. This finding is not only supportable on the evidence but was to my mind manifestly justifiable. The applicant was given a number of opportunities to give a truthful account of his case and circumstances, in particular his activities in Iran and the course of travel from Iran to Australia, but he failed to do so and gave various versions which conflicted in substantial respects from each other and he failed to explain satisfactorily the numerous improbabilities, discrepancies and inconsistencies in his story and the reason for giving those versions." (at p. 41)

It may be added that the respondent's delegate, whose actions

were unsuccessfully challenged before Sweeney J., wrote that
she did:-

"not believe that the letter [of 6 December 1989 - see order of the Full Court, set out above] was sent for genuine political reasons. ...

[but found]	"that the applicant wrote the letter of 6 December 1989 with the sole or dominant purpose of enhancing his claim to acceptance as a
refugee "

(passages quoted on pp. 27 and 36 of the reasons for judgment

of Sweeney J.)

Since hearing this matter yesterday I have read, amongst other

things,: (1) the transcript of all of the submissions, (2) the	reasons for judgment of Lockhart J. (3) the reasons for
judgment of the Full Court (31 FCR 123-134) (4) the reasons
for judgment of Sweeney J (5) the notice of appeal against
that judgment (6) the further amended application, dated 21
September 1992 in matter No. VG 147 of 1992 (7) the further amended statement of claim of the same date in that matter (8) the two affidavits sworn on 31 August 1992 by the applicant
and filed in matter No. 147 of 1992 (9) the affidavits and exhibits of K. Brogan, J. Launder, J. Mitchell, Erskine Rodan (sworn 22 June 1992) and R. Springborg. In paragraphs 6, 8
and 9 the latter expressed certain opinions as to what would
be likely to happen "if Mr. Heshmati were to return to Iran".
However, his opinions were necessarily based partly upon
material supplied to him by the applicant's solicitors as to "the life history of Mr. Heshmati . . . and especially his activities in Iran and Australia wherein he has supported the Mohajordin and criticised the Iranian government." The question of the applicant's credibility is relevant to Mr.
Springborg's opinion.
Having considered the matter overnight and today, I am unable
to accept the submissions by Mr. Rodan, in his affidavit,
filed in matter VG No. 438 of 1992. The applicant's counsel
accepted (transcript 75) that the presence of the applicant
was not necessary for the proper conduct of the appeal; he relied, however, upon the possible (in his submission likely) effects upon the applicant if his motion were not granted. In my opinion the appeal does not have reasonable prospects of success.
In matter No. VG 147 of 1992 the applicant's further amended
application, dated 21 September 1992, in my opinion does not have reasonable prospects of success.
In my opinion it would not be a proper exercise of the Court's
discretion to make an order in either of the two matters
restraining the respondent Minister from removing the
applicant from Australia.
For these reasons paragraph 1 of the motion dated 18 November
1992 in matter No. 438 of 1992, is dismissed and paragraph 3
of the motion in matter No. VG 147 of 1992 is dismissed.

I certify that this and the nine (9) preceding pages are a true copy of the Reasons for Judgment of Mr Justice Keely.

Associate:

Dated:

g60 / q >

JUDGMENT No. ...s*.*uoo*.

IN THE FEDERAL COURT OF AUSTRALIA

) )

VICTORIA DISTRICT REGISTRY

)	NO. VG 147 of 1992
)	NO. VG 438 of 1992

GENERAL DIVISION

)

B E T W E E N :

JAFAR HESHMATI

Applicant

A N D:

T H E M I N I S T E R F O R

I M M I G R A T I O N . L O C A L GOVERNMENT AND ETHNIC AFFAIRS AND OTHERS

Respondents

C O W :	Keely J.
PLACE :	Melbourne
m	20 November 1992

CORRIGENDA

In the reasons for judgment of the Court delivered 19 November

1992 at page 5 lines 10-11 the date "22 November 1990" should

read "21 August 1991". -

Associate to Mr Justice J.A. Keely