Hosseini v Minister for Immigration and Multicultural Affairs

[2001] FCA 1523

FEDERAL COURT OF AUSTRALIA

Hosseini v Minister for Immigration & Multicultural Affairs [2001] FCA 1523

GHOLAM REZA HOSSEINI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 1268 of 2001

KATZ J
29 OCTOBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1268 of 2001

BETWEEN:	GHOLAM REZA HOSSEINI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	KATZ J
DATE OF ORDER:	29 OCTOBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1The application be dismissed.

2The 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
NEW SOUTH WALES DISTRICT REGISTRY	N 1268 of 2001

BETWEEN:	GHOLAM REZA HOSSEINI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	KATZ J
DATE:	29 OCTOBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. There is before the Court an application for review of a decision made by the Refugee Review Tribunal (“the RRT”).  The RRT made that decision on 10 August 2001.

2. The RRT’s decision was one to affirm a decision which had earlier been made by a delegate of the present respondent, the Minister for Immigration & Multicultural Affairs (“the delegate” and “the Minister” respectively).  The delegate had made that decision on 8 January 2001.

3. The delegate’s decision had been one to refuse an application made to the Minister by the present applicant, Mr Gholam Reza Hosseini, for the grant of a protection visa.  Mr Hosseini had made that protection visa application on 23 November 2000, having arrived in Australia on 21 November 2000.

4. Mr Hosseini, an Iranian national, had claimed, in support of his protection visa application, that, owing to well-founded fear of being persecuted in Iran for at least one of the reasons set out in the Refugees Convention, he was both outside that country and unwilling to avail himself of that country’s protection.  However, that claim had been rejected by the delegate and was again rejected by the RRT on its review of the delegate’s decision.

5. In his amended application for review of the RRT’s decision, lodged by him in person, Mr Hosseini included material said by him to constitute the grounds of his application.  That material read as follows:

   “Misinterpretation and misunderstan[d]ing
   Default in hearing self-defence
   The member wrongly construed the Regulation in his [sic] decision.
   The referred Regulation was already abolished.
   The member default in hearing self-defence in order to his judg[]ment evidence.
   The member misinterpreted the case.
   The member refused to require of presumption evidence on the actual claim where is available at present.
   The member misunderstood the whole case.”

   The relationship between that material and the grounds of review set out in subs 476(1) of the Migration Act 1958 (Cth) (“the Act”), as that provision read at the commencement of the present proceeding, is not easy to discern. That difficulty is not surprising, given that Mr Hosseini appears to have prepared his amended application for review of the RRT’s decision himself.

6. Also in his amended application for review of the RRT’s decision, Mr Hosseini included material which was said by him to constitute the reasons why he was aggrieved by the RRT’s decision.  However, that material did not go to Mr Hosseini's standing to bring the proceeding, as had been intended by those responsible for the preparation of the form used by Mr Hosseini.  Instead, what Mr Hosseini did was to identify various passages from the RRT’s statement of findings and reasons by page and paragraph number and then criticise those passages identified.

7. The so-called reasons for Mr Hosseini’s grievance are contained on a separate page of the amended application for review of the RRT’s decision.  I have taken it that the criticisms listed on that page of the amended application for review of the RRT’s decision were really the basis of Mr Hosseini’s amended application for review, subject to one or two further criticisms not included on that page on which he made submissions before me orally today.

8. It therefore appears to me that the most convenient course for me to take is to go through the criticisms which are set out on the relevant page of the amended application for review of the RRT’s decision, dealing with each of them in turn.  (I should mention that, in the course of his oral submissions before me today, Mr Hosseini did not himself deal with every one of the listed criticisms, but I will deal with all of them in any event, whether mentioned orally by Mr Hosseini today or not.)  I will then deal with Mr Hosseini’s criticisms raised orally for the first time today.

9. Before I begin to deal with any of those specific criticisms, however, I should say something about Mr Hosseini's personal circumstances as he presented them before the RRT. 

10. According to Mr Hosseini, he had left Iran in 1989 after having had problems because of his conduct while working on a secret project connected with the Iranian Air Force.  Those problems had resulted in his being lashed and having to pay a sum of money by way of a fine or damages.  He had left Iran using a valid Iranian passport which he had earlier obtained.  After four months away, however, mostly in Austria, he had returned to Iran in early 1990, induced to do so by the fact that the authorities had arrested and questioned his father about his whereabouts.  On his return to Iran, he had been imprisoned for four months on suspicion of spying or selling secrets and had been tortured.  He had then been released on the payment of money bail.  At the same time, however, he had been forbidden to leave Iran again and had had his passport confiscated.  He had then obtained, by paying a bribe of 50,000 tuman, another passport in his own name, on which passport he had left Iran for Japan.  He had lived in Japan during the rest of the 1990s, where he had married a Japanese woman and become a father.  In 2000, he had returned to Iran for his sister’s wedding, entering Iran using an Iranian passport which had earlier been issued to him in Japan by the Iranian authorities.  When, however, he had attempted to leave Iran to return to Japan, the Iranian authorities had raised difficulties about that passport and he had then left Iran clandestinely, ultimately making his way to Australia.  After his arrival in Australia, he and his Japanese wife had been divorced by consent in Japan. Finally, after his arrival in Australia, he had converted from the Muslim to the Christian faith.

11. I turn now to Mr Hosseini's criticisms of the RRT’s statement of findings and reasons.  I will deal with those criticisms mainly in the order in which the criticised passages appear in the RRT’s statement.

12. The RRT’s statement of findings and reasons followed the typical format for such statements, having material under the following major headings: Background, The Legislation, The Refugees Convention, Claims and Evidence, Findings and Reasons, Conclusion and Decision.  As will be seen, most of Mr Hosseini’s criticisms of the RRT’s statement of findings and reasons are of passages in that statement which appeared under the heading Claims and Evidence, rather than under the heading Findings and Reasons.

13. First, under the heading Claims and Evidence, the RRT set out the text of much of a statutory declaration which Mr Hosseini had affirmed on 30 November 2000 in support of his protection visa application.  In setting out that statutory declaration, the RRT made a typographical error, substituting at one point the number “45” (which had been used in the statutory declaration as a paragraph number) for the number “1990” (which had been used in the statutory declaration as a date).

14. Mr Hosseini complained about the relevant passage in the RRT’s statement of findings and reasons, saying that the RRT had not explained its use of the number “45” and that he did not recall that he had used that number either.

15. That error by the RRT was a trivial one, which could not establish a ground of judicially reviewable error on the RRT’s part.  The error’s having occurred was easily capable of being discovered, simply by comparing the original of the statutory declaration with the RRT’s purported quotation of it.

16. Later under the heading Claims and Evidence, the RRT summarised various matters discussed between it and Mr Hosseini at an oral hearing regarding his application which it had held on 6 March 2001.  One passage from the RRT’s discussion of what occurred at that oral hearing is as follows:

    “The applicant told the Tribunal that he obtained his passport in 1985, after completing his military service, for the purpose of going on a holiday to Turkey.  The Tribunal asked the applicant if he had renewed this passport.  He claimed that the passport was valid for 6 years.  The Tribunal pointed out to him that country information indicates that passports are valid for three years with a possible three year extension….  He questioned the correctness of the information because, according to him, they are valid for 6 years.”

17. Mr Hosseini denied before me that he had told the RRT at the oral hearing that the passport which was under discussion, which was the one he had used to leave Iran in 1989, had been one which was valid for six years.

18. I am not prepared, without having before me a transcript of the oral hearing before the RRT, to act on Mr Hosseini’s denial of having asserted something at that hearing, when the RRT stated that he had asserted it.  Mr Hosseini did not seek to put such a transcript before me. 

19. I will deal now with the RRT’s reference to a written statement which Mr Hosseini had made on 27 June 2001, which statement had been received by the RRT on 28 June 2001. That written statement had been made by way of response to a notice given to Mr Hosseini by the RRT on 18 June 2001 under s 424A of the Act.

20. In referring to that written statement, the RRT stated, “The applicant’s statement went on to say that he left Japan in January 2000 by using that passport which was valid for six years”.  The passport being referred to was an Iranian one which, according to the RRT, Mr Hosseini claimed to have obtained in Japan in 1995.

21. Mr Hosseini denied before me that he had stated in that written statement that the passport which he had used when returning to Iran from Japan in 2000 had been one which was valid for six years.

22. However, Mr Hosseini’s written statement of 27 June 2001 is before me.  In that statement, Mr Hosseini referred to receiving a new passport in 1995 from the Iranian authorities in Japan.  He then continued, “I left Japan for Iran about five years later, in January 2000 by using the passport that I had been issued with in 1995, valid for six years”.  It is plain that Mr Hosseini's criticism of the RRT in the particular respect presently under discussion is unjustified.  The RRT accurately reproduced in its statement of findings and reasons precisely what he had said in his written statement of 27 June 2001.

23. I return now to the RRT’s summary of matters discussed between it and Mr Hosseini at the oral hearing on 6 March 2001.

24. According to the RRT, Mr Hosseini had referred before it to the problems which he had had in Iran in 1989 which had caused him to leave at that time.  The RRT then,

    “… indicated that his statements suggested that the problems that he was alluding to appeared to amount to not fulfilling Iranian behavioural expectations.  He agreed and added that it included not fulfilling religious behavioural expectations.  The applicant reminded the Tribunal that he had been lashed for this reason.
    The Tribunal pointed out to the applicant that many people have such problems in Iran.  He indicated that employees are forced to obey behavioural instructions and guidelines and get lashed if they do not.  The Tribunal pointed out to the applicant that people also get lashed for such activities as drinking, having videos and playing Western music.  He agreed.”

25. In his amended application for review of the RRT’s decision, Mr Hosseini’s complaint about that passage took the following form:

    “[T]he Tribunal pointed out that people also get lashed for drinking… and in the end mention that the applicant agreed but the applicant did not agree that he got lashed for the same reason the Tribunal pointed out the way that the applicant agreed that he got lashed for the same reason.”

26. I did not find it easy to follow Mr Hosseini’s complaint about the passage which I have just quoted as that complaint had appeared in written form.  However, in the course of his oral submissions today, he complained again about that passage and, as I understood him, construed what the RRT had said as having amounted to a finding by it that he had claimed before it to have been lashed for activities such as drinking, having videos and playing Western music.  That was a misconstruction of the RRT’s purpose in setting out that material.  The important point to be made for present purposes is that in the passage to which I have been referring the RRT was making no findings of fact whatever.  It was simply giving an historical narrative of what had occurred at the oral hearing before it, without in any way making any findings of fact.  In those circumstances, Mr Hosseini’s complaint, whether I have correctly understood it or not, is seen to be unjustified.

27. Later in the RRT’s statement of findings and reasons, but still under the general heading of Claims and Evidence, the RRT referred to a number of matters which it had put to Mr Hosseini at the oral hearing on 6 March 2001 that seemed to detract from the credibility of his claims.  In the course of doing so, the RRT mentioned that Mr Hosseini had referred to his description of how he had left Iran, that is to say, in the year 2000.  The RRT then continued, “The Tribunal accepted that he had provided a very detailed description but explained to the applicant that it did not know what to make of it; that it could just mean that he was very good at responding to questions”.

28. Mr Hosseini complained about that passage in the following terms:

    “[T]he Tribunal indirectly accused the applicant that he is a good actor or fast in responding where the applicant provided his explanation in very details.  The Tribunal duty is to make the decision on the case whether is satisfy on the issue itself not on the way that applicant could respond in person and/or any accusation that could be a reason that effected the Tribunal decision to reject the application.”

29. As with Mr Hosseini’s previous complaint about the RRT’s statement of findings and reasons, he was here complaining, not about any finding of fact made by the RRT, but about mere historical narrative by it.  However, in so far as his complaint might be construed as suggesting that it had not been open to the RRT to base its ultimate decision on its assessment of his credibility as a witness, I reject that complaint.

30. Earlier, I mentioned a notice which the RRT had given to Mr Hosseini under s 424A of the Act on 18 June 2001 and I mentioned as well a written statement which Mr Hosseini had supplied in response to that notice.

31. In its statement of findings and reasons, the RRT recorded that in that notice it had noted that Mr Hosseini's Japanese divorce documents indicated that his was a divorce by consent, suggesting that he may have initiated the divorce to avoid returning to Japan.

32. As to that part of its statement of findings and reasons, Mr Hosseini complained as follows: “[T]he Tribunal noted that the applicant’s divorce was in reason to avoid returning to Japan.  The applicant never claimed that his divorce was in that order”.

33. Again, it is sufficient to say that, in that complaint of his, Mr Hosseini sought to complain merely about a matter of historical narrative by the RRT, rather than about any finding made by it.

34. I come now to a number of complaints which Mr Hosseini made about that part of the RRT’s statement of findings and reasons in which the RRT was truly setting out its findings and reasons.

35. One of those matters of complaint was that the RRT had proceeded on the basis that he had claimed that he had left Iran in 1989 using a passport which he had obtained in 1985. 

36. According to Mr Hosseini, he had made no claim that he had used, in 1989, a passport which he had obtained in 1985, but had only claimed that he had used, in 1989, a passport which he had used in 1985.  In support of his complaint, Mr Hosseini referred to a paragraph of his statutory declaration affirmed 30 November 2000, in which he had declared,

    “I decided that I needed to leave Iran.  I had a valid passport.  When I had completed my military service I followed the normal procedure and arranged to be issued with a passport.  I had used the passport in 1985 to go to Istanbul in Turkey for a holiday.”

37. Mr Hosseini's complaint which I am presently discussing was unjustified.

38. In a written statement which he had supplied to the RRT on 6 March 2001, which statement was quoted by the RRT itself in its statement of findings and reasons, Mr Hosseini had stated, “[T]he passport by which I first left Iran in 1989 had been issued four years prior to those events in 1985”.  In any event, even in Mr Hosseini’s statutory declaration of 30 November 2000, he had declared that he had arranged to be issued with the relevant passport when he had completed his military service and had used that passport in 1985.  According to his protection visa application, he had completed his military service in 1985, so that his claim to have been issued the passport in 1985 would have been apparent even in the absence of the statement which I have quoted from his written statement of 6 March 2001.

39. Next, in that part of its statement of findings and reasons in which it was setting out its findings and reasons, the RRT referred to the bail which Mr Hosseini claimed had been paid in 1990 to obtain his release from detention on his return to Iran in early 1990.  The RRT twice stated the quantum of that bail as having been one million tuman.

40. Mr Hosseini complained that he had not claimed that that bail had been one million tuman, but had claimed that it had been ten million tuman.

41. In that respect, Mr Hosseini appears to have been correct, at least in so far as the latter was the amount to which he had referred in his statutory declaration of 30 November 2000.  On the other hand, in his written statement of 6 March 2001, Mr Hosseini had merely referred to “a large sum of money”.  What, if anything, he said orally about the matter of the quantum of his bail at the hearing before the RRT, I am not able to say, not having the transcript.  However, for present purposes, I will proceed on the basis that the RRT erred in recording what he had claimed.

42. The question then arises what significance that error could have had for the RRT’s reasoning process.  I am satisfied that that error could have had no significance adverse to Mr Hosseini.

43. The RRT’s only purpose in referring to Mr Hosseini’s claim that he had been released on bail of one million tuman in 1990 was to cast doubt on his account of having obtained, also in 1990, for a bribe of fifty thousand tuman, a second Iranian passport when his first passport had been confiscated.  The RRT reasoned that it would be surprising that a bribe of fifty thousand tuman would have been sufficient to obtain a second passport unlawfully after the confiscation of his first, when Mr Hosseini’s bail had been set as high as one million tuman, that is twenty times more than the alleged bribe.  Of course, if the RRT had acted on the basis that Mr Hosseini’s claim had been that his bail had been set at ten million tuman, then that would have made matters worse from Mr Hosseini’s point of view, given the only purpose for which the quantum of the bail was being used by the RRT.  Therefore, the RRT’S error (assuming it to have been an error) was actually favourable to Mr Hosseini rather than adverse to him.

1. Finally, in its statement of findings and reasons, the RRT considered Mr Hosseini’s claim to have converted from the Muslim to the Christian faith after his arrival in Australia, a claim which, according to the RRT, Mr Hosseini had made after the oral hearing before it on 6 March 2001.  The RRT concluded that, in Mr Hosseini’s circumstances, such conversion did not mean that there existed a real chance that, if Mr Hosseini were to return to Iran, he would be persecuted for reasons of religion.

2. About that conclusion, Mr Hosseini complained in his amended application for review of the RRT’s decision, that the RRT had “judged the applicant faith and his conversion to Christianity where the applicant has no claim on this issue”.

3. Of course, if Mr Hosseini had made no claim before the RRT to have a well-founded fear of being persecuted in Iran for reasons of religion, given his conversion to Christianity in Australia, then it is difficult to see how he was prejudiced by the RRT’s rejection of such a supposed claim. However, the fact is that such a claim was made in a submission made to the RRT on Mr Hosseini's behalf on 3 April 2001. That claim had led the RRT, in its notice to Mr Hosseini under s 424A of the Act, to refer to that claim, a course which had led Mr Hosseini to state in his statement in response dated 27 June 2001, “I have not based my application for asylum on being a Muslim convert”.

4. The RRT dealt expressly in its statement of findings and reasons with Mr Hosseini’s approbating and reprobating in that respect, saying, “The Tribunal sees the applicant’s denial of using his conversion as a ground … while at the same time advancing the claims [that is, of conversion from Islam to Christianity] as a ploy to imbue them in an aura of truthfulness”.  That was a conclusion which it appears to me, was open to the RRT.  In any event, given the making of the relevant claim on Mr Hosseini’s behalf on 3 April 2001, no doubt the RRT considered that the better course was for it to deal with that claim.

5. I have now dealt with each of the criticisms which were set out in the separate page in Mr Hosseini’s amended application for review of the RRT’s decision.  In his oral submissions today, as I have already mentioned, Mr Hosseini dealt with some, although not all, of those criticisms and he referred, as well, to one or two additional matters.  By and large, those additional matters may be described simply as an attempt to re-agitate matters of the merits of his application to the RRT, but there are two matters with which I should deal separately.

6. It appears from the RRT’s statement of findings and reasons that the RRT accepted that, before Mr Hosseini left Iran in 1989, he had been working with the Air Force, not as a member of the Air Force, but rather as a civilian contract worker.  As I understood Mr Hosseini's oral submissions today, he complained of the RRT’s conclusion in that respect.

7. It may be said that Mr Hosseini’s complaint is merely a complaint about a factual conclusion, but it is worth recording that, in material supplied in connection with his protection visa application, Mr Hosseini himself had made no claim to be a member of the Air Force, but had rather claimed, as the RRT concluded, that he had been employed as a civilian contract worker.  For instance, in his written statement supplied to the RRT on 6 March 2001, Mr Hosseini stated, “I was a contractual employee of the Iranian Air Force” and, in that part of its statement of findings and reasons in which the RRT was recording what had occurred at the oral hearing on 6 March 2001, the RRT recorded Mr Hosseini as having told the RRT both that he was not subject to the restrictions on travelling that applied to people in the military and that he was not a member of the military.

8. It follows that, in so far as Mr Hosseini’s complaint made orally was about the RRT’s refusal to find that he was a member of the Air Force, as opposed to a civilian contract worker, in truth, his claim had only been of the latter type in any event.

9. The one further matter raised orally with which I should deal arose from the RRT’s reference, in that part of its statement of findings and reasons in which it was setting out its findings and reasons, to a number of matters which, it said, “detracted from the credibility of the applicant’s account”. In doing so, the RRT specifically referred to Mr Hosseini’s account of the circumstances under which he had left Iran in 2000, saying that it was also concerned about Mr Hosseini’s assertion that he had been made to disguise himself while travelling on the passport of an Australian citizen.  The RRT’s reference to Mr Hosseini’s assertion was a reference to, for instance, Mr Hosseini’s having declared in his statutory declaration of 30 November 2000, “Abbas [a people smuggler] … tried to make me look like an older man” and to Mr Hosseini’s oral evidence apparently given before the RRT at its hearing on 6 March 2001 that the holder of the Australian passport used by him was over forty years old and that therefore he (Mr Hosseini) had had to colour his hair.

10. Having mentioned its concern about Mr Hosseini’s assertion that he had been made to disguise himself, the RRT then continued, “This person [that is, the holder of the Australian passport] is younger than the applicant”.  It is therefore plain that the concern which the RRT had about Mr Hosseini’s assertion was that he had asserted that he had sought to disguise himself to look older than he was, when, in truth, the passport which he had used had been that of a person younger than himself.

11. Mr Hosseini has submitted before me today that he had been told by Abbas, the people smuggler, that he was required to look older in order to use the Australian passport and it was on that basis that he did what he did.

12. However, even if the RRT’s concern about Mr Hosseini’s assertion had been misplaced, its reliance on that concern would have amounted merely to a factual error on the RRT’s part and not to a judicially reviewable error.

13. Now that I have dealt with what I understand to have been each of Mr Hosseini’s specific criticisms of the RRT’s statement of findings and reasons and in light of the conclusions which I have expressed regarding them, it must follow that I am not satisfied that Mr Hosseini has made out any of the grounds of his application for review and I will, accordingly, dismiss his application for review, with costs.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz .

Associate:

Dated:             8 November 2001

The applicant appeared in person.
Counsel for the Respondent:	D Jordan
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	29 October 2001
Date of Judgment:	29 October 2001