Kianfar v Minister for Immigration and Multicultural Affairs

The applicant, a citizen of Iran, sought an order of review of a decision by the Refugee Review Tribunal (the Tribunal) which affirmed a decision by a delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa to the applicant. The Tribunal’s decision was made on 29 June 2001 and the applicant had arrived in Australia on 27 December 2000. The applicant lodged an application for a protection visa on 19 January 2001 and a delegate of the Minister refused to grant a protection visa on 20 March 2001. The applicant applied for review of that decision on 21 March 2001. The Tribunal affirmed the decision of the delegate not to grant a protection visa. The applicant’s claims were that he installed a satellite television reception dish in the courtyard of his home in Ahvaz, which was illegal in Iran. He began receiving broadcasts from an American television station, NITV, which broadcast in Farsi, and which included material critical of the Iran government by Iranians in exile and commentary on events within Iran which were contrary to the versions provided by the Iranian authority. He began to videotape some programmes broadcast by NITV, and also taped a programme on another station broadcast by the Mujehadin operating in Iraq which was also critical of the Iranian government, which contradicted the Iranian government’s version of events within Iran and parodied the present Supreme Leader Khamenei and former President Rafsanjani. He recorded all these programmes on one tape, made about 20 copies and distributed the copies to members of his family and to friends. A neighbour reported to the police that he had a satellite dish in his garden. The police came to the applicant’s home and confiscated the satellite dish. The police also found the tape which the applicant had recorded and confiscated this tape and, when they realised its contents, referred the matter to the security forces. Three men not in uniform arrested the applicant at his workplace and detained him for a period of 22 days during which he was interrogated and physically mistreated including by being repeatedly forced to stand in an empty swimming pool with a sheet of metal over his head during the hottest part of the day. He was given only left-over food and luke warm water. He had a kidney problem and, as a result of the inadequate water which he was given and constant physical mistreatment, his illness worsened, causing him to urinate blood. On the security of the provision by his maternal uncle of the deeds of his house, the security forces released the applicant from detention on condition that he reported to them every fortnight. He was forbidden to leave the city and was warned that if they found any copies of the tapes which he had recorded they would re-arrest him. The applicant reported to the security forces in accordance with the conditions of his release, for five fortnights. He was in constant fear that a copy of the tape which he had recorded would be found and that he would be re-arrested on serious charges. On the advice of his family he decided to leave Iran and found a smuggler who arranged for a fake Iraqi passport on which the applicant left Iran. Since his arrival in Australia, he has spoken by telephone to his sister in Iran from whom he has learned that five or six days after his departure from Iran, the security forces went to his house. When they realised that the applicant “was gone”, they arrested his father and brother. His father was released after fifteen days due to his heart condition, but his brother remains in detention. The Iranian authorities have also arrested two of his friends and confiscated from them a copy of the tape recorded by the applicant. The applicant’s maternal uncle, who provided the security for his release from detention, is also being harassed by the authorities who continue to inquire about the applicant. When travelling from Malaysia to Indonesia he had used his real Iranian passport. He paid a second smuggler another $2,000 for the boat trip to Australia and also gave that smuggler his Iranian passport. The Court set aside the decision of the Refugee Review Tribunal, made on 29 June 2001, affirming the decision not to grant the applicant a protection visa. The matter was remitted to the Refugee Review Tribunal for decision according to law. The question whether the Court should make a direction that the matter be remitted to the member of the Refugee Review Tribunal who made the above-mentioned decision was reserved. The applicant may within 35 days file and serve written submissions on the question referred to in paragraph 3(a). The respondent may within 10 days of service of those submissions file and serve any written submissions in response. The question referred to in paragraph 3(a) will be decided on the papers so filed, without further hearing.