Khalily v Minister for Immigration and Multicultural Affairs

[2000] FCA 1452

FEDERAL COURT OF AUSTRALIA

Khalily v Minister for Immigration and Multicultural Affairs [2000] FCA 1452

AMJAD KHALILY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 770 OF 2000

LEHANE J

6 OCTOBER 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 770 OF 2000

BETWEEN:	AMJAD KHALILY APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LEHANE J
DATE OF ORDER:	6 OCTOBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.   

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 770 OF 2000

BETWEEN:	AMJAD KHALILY APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LEHANE J
DATE:	6 OCTOBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In his application filed on 18 July 2000, the applicant seeks judicial review of a decision of the Refugee Review Tribunal dated 14 July 2000.  By its decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The applicant is a citizen of Iran.  He is, according to his claims, a Kurd and a Sunni Muslim.  He arrived in Australia in April 2000, having stowed away aboard a vessel which came to Australia from Iran via Singapore.

3. For reasons which will emerge it is unnecessary, I think, to state in any great detail the claims made by the applicant in his application for a protection visa and before the Tribunal.  I may say immediately that I have read the decision of the Tribunal and I have read also the material included in the green bundle of documents.  The applicant has informed me, through an interpreter, that he has nothing to add to the material which he supplied both to the Minister and to the Tribunal and which is included in the bundle of documents; and his application for judicial review does not specify any particular ground upon which the applicant seeks the intervention of the Court.

4. As the applicant explained it to me, he disagrees with the decision of the Tribunal: by that he means that the Tribunal did not come to a correct conclusion on the factual material which was before it.  To that I should add that the Tribunal's reasons deal in some detail both with the applicant's claims and with various independent reports which were before it concerning the situation in Iran more generally and that, in my reading of the Tribunal’s reasons and the material in the green book, I have not been able to identify any particular omission by the Tribunal of any factual element of the applicant's claims.  Certainly nothing of that nature has been brought to my attention.

5. The applicant's claims to fear persecution, should he return to Iran, fell, in very broad terms, into two categories.  One related to discrimination against Kurds in Iran, particularly those who followed the Sunni Muslim faith.  The discrimination affected educational opportunities, employment opportunities and the way in which those discriminated against were treated in, among other situations, the public sector and the army.  The applicant claimed that the discrimination had had particular effects in relation to his own family.  His claims included an assertion that delayed medical treatment had resulted in the death of close relatives. 

6. The applicant did not claim that he, or any relative of his, was involved in anti-government activities or was involved with a group which engaged in such activities.  He did claim, however, and this is the second aspect of his claims - that should he be returned to Iran, because he is a Kurd and Sunni Muslim who left illegally and sought asylum in Australia, he would have anti-government political opinions imputed to him and would suffer severe reprisals.

7. All those matters were considered by the Tribunal.  The Tribunal also considered, as I have mentioned, information contained in various documents which it had, including, as usually is the case, documents from the Department of Foreign Affairs and Trade as to conditions in Iran and relating particularly to the treatment by the authorities of Iranians who are Kurds and who also are Sunni Muslims.  In brief, the Tribunal found that there was no legal basis for discrimination of the kind which the applicant alleged;  that there were in parts of the country elements of what it described as "informal discrimination", but not discrimination or harassment of a kind that was properly to be regarded as persecution in the sense in which that word is used in the Convention.  The Tribunal found also, on the basis of the documents which it considered, that those who departed from Iran illegally were normally subject at worst to a fine upon return and that, while the fact that a person returned to Iran had made an application for asylum in another country might lead to some verbal harassment, it would not be expected to lead to anything worse.  The Tribunal referred particularly to recent experience, recorded in the documents, concerning a number of persons who had been returned to Iran from a number of countries in which they had sought asylum.

8. In short, where there were differences between the applicant's account of circumstances in Iran and the independent country information, the Tribunal preferred the country information.  To the extent that the Tribunal was prepared to accept the applicant's account, it took the view that the account did not demonstrate that the applicant had been subjected to ill-treatment amounting to persecution. 

9. The reason why it is unnecessary for me to deal in greater detail with the factual basis of the Tribunal's decision is that it is, I think, quite clear that the Tribunal has referred with care to the detailed material which the applicant put before it and to the other documentary material which it had. It has considered the particular claims made by the applicant and has given its reasons for rejecting those claims (to the extent that it did so) and for its view that such discrimination as it accepted the applicant may have suffered did not amount to persecution. To the extent that it did not accept the applicant's account, the Tribunal made findings of fact and those findings were peculiarly its province and are not the province of the Court. I see no reason to doubt that, in makings its findings, the Tribunal discharged its obligations under s 430 of the Migration Act1958 (Cth). To the extent that it considered that such ill-treatment as it was prepared to accept that the applicant may have suffered did not amount to persecution in the Convention sense, I see no error in what the Tribunal decided.

10. Nor is any other legal error evident in the Tribunal's reasons, particularly its summary of the legal test of well-founded fear of persecution for a Convention reason.  That summary seems to me entirely unexceptionable. 

11. Thus in summary, no particular legal ground is identified in the application as a basis on which the Court might intervene and I am unable, on reading the material, to identify any such ground.  The applicant's substantial complaint is that the Tribunal was wrong in coming to the factual conclusion to which it came.  That, of itself, is not a ground on which the Court has power to intervene.  In any event, on reading the material, I see no ground for anxiety about the way in which the Tribunal dealt with the matter.

12. In those circumstances, there is only one possible result and that is that the application is dismissed.  No ground has been suggested on which I should not make the order for costs which the Minister seeks and I can see none.  The fact – if it is the fact - that the applicant is not in a position to pay the costs is not normally regarded as a reason to refuse an order.

13. Accordingly the formal orders of the Court are that:  

    1.   The application be dismissed.  

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

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

Associate:

Dated:             13 October 2000

Counsel for the Applicant:	The applicant appeared in person, with the assistance of an interpreter
Counsel for the Respondent:	J D Smith
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	6 October 2000
Date of Judgment:	6 October 2000