King v GIO Australia Holdings Ltd

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FEDERAL COURT OF AUSTRALIA
Applicant “F” v Minister for Immigration and Multicultural Affairs [2001] FCA 304

MIGRATION – review of decision by Refugee Review Tribunal affirming respondent’s refusal to grant protection visa – whether Tribunal failed to set out findings on material questions of fact – whether Tribunal’s decision was an improper exercise of power – whether there was no evidence or other material to justify the making of the decision – whether Tribunal based its decision on a particular fact which did not exist – whether the information which the Tribunal may “get” under s 424(1) of the Migration Act, extends beyond information obtained on its own initiative and includes information supplied by the applicant – whether Tribunal thus obliged to “have regard” to that information.

Acts Interpretation Act 1901 (Cth) ss 13(3), 15AB
Migration Act 1958 (Cth) ss 424(1), 430(1)(c), 476(1)(d), 476(3), 476(1)(g), 476(4)(b)

Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 applied

APPLICANT ‘F’ v MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS

W 173 of 2000

CARR J
23 MARCH 2001
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W 173 OF 2000

BETWEEN:

APPLICANT “F”
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

JUDGE:

CARR J

DATE OF ORDER:

23 MARCH 2001

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs.

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 173 OF 2000

BETWEEN:

APPLICANT “F”
Applicant

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
Respondent

JUDGE:

CARR J

DATE:

23 MARCH 2001

PLACE:

PERTH

REASONS FOR JUDGMENT

INTRODUCTION

  1. This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 20 September 2000, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant.  The applicant, who is a citizen of Iran, arrived in Australia in June 2000.  On 30 June 2000 he applied for a protection visa.  On 9 August 2000 a delegate of the respondent refused to grant him a protection visa.  On 11 August 2000 the applicant sought review of the delegate’s decision by the Refugee Review Tribunal. 

    THE APPLICANT’S CLAIMS AND THE TRIBUNAL’S DECISION

  2. The applicant’s claims, in summary, were as follows:

    ·     Between 1979 and 1981 or 1982, when still in High School, he was involved with the Mujahideen-e-Khalq Organisation (“the MKO”), Iran’s leading opposition group.  He distributed pamphlets, put posters up for them, sold the MKO newspaper and worked at a shop selling MKO books.  He ceased to be involved in these activities after the leader of the MKO, Massoud Rajavi, was forced to flee the country in 1981 and the MKO was suppressed.

    ·     In 1980 the applicant’s family moved from Abadan in the south of Iran to Sari in the north.  On leaving school…

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Details
Case
[2001] FCA 304
Decision Date

CaseChat Overview and Summary

The case of King v GIO Australia Holdings Ltd involved an Iranian national who sought a review of the decision made by the Refugee Review Tribunal affirming the decision of a delegate to refuse his application for a protection visa. The applicant, a citizen of Iran, claimed that he faced a real risk of persecution if returned to his home country due to his past political activities and his interest in Christianity. The matter was heard in the Federal Court of Australia, where the applicant challenged the Tribunal's decision on several grounds, including an alleged failure to properly consider relevant evidence and misapplication of the law.

The legal issues that the court had to address included whether the Tribunal had erred in finding that the applicant's political activities did not create a risk of persecution, and whether the Tribunal had failed to properly consider information regarding the arbitrary arrest and detention of individuals in Iran. The court also had to determine if the Tribunal had misapplied the provisions of the Act, particularly section 424, which requires the Tribunal to consider relevant information provided by the applicant.

The court found that the Tribunal had not erred in its decision. The court held that the Tribunal's decision was based on the applicant not being perceived as a political threat by the Iranian government and on the country information regarding the level of religious intolerance in Iran. The court also ruled that the ground of review related to the alleged failure to consider information on arbitrary arrest misconceived the operation of section 424 and amounted to an impermissible attempt to raise an administrative law ground. The court concluded that there was sufficient evidence to justify the Tribunal's decision.

The court dismissed the application and ordered that the applicant pay the respondent's costs. This outcome affirmed the Tribunal's decision and maintained the integrity of the visa application process by ensuring that the Tribunal's findings were supported by the evidence and the law.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In my opinion, there was no need for the Tribunal to make further reference to the details of the applicant’s claims. The material question was whether the applicant’s activities had generated a political profile sufficient to give rise to a real risk of persecution. The Tribunal found that this was not the case, principally because it disbelieved the applicant, but also on the basis of independent evidence. In doing so it did not, in my view, err in the manner alleged.Ground 4: No evidence This ground was based on an assertion that the Tribunal had erred in finding that the applicant had not been arrested and released so that the authorities could gather more evidence against him and consequently was allowed to leave Iran travelling on a passport in his own name. In this ground the applicant contended that:“In so finding, there was no evidence before the Tribunal under section 476(1)(g) to justify so finding that the Applicant had not been arrested, because the Tribunal relied upon a fact that did not exist, under section 476(4)(b) that people were only arrested if they had a political profile.”MY REASONING In my opinion, it is quite clear from the Tribunal’s reasons, which I have set out above, that its decision was not based on the existence of the particular fact that people in Iran were only arrested if they had a political profile. It based its decision that there was no real chance that the applicant would be persecuted by reason of his political opinion or his religion if returned to Iran, on the fact that the applicant was not perceived by the Iranian Government as being of adverse political interest and on country information about the degree of religious intolerance in Iran. Those were the only two Convention-based reasons advanced on his behalf. There was quite clearly sufficient evidence or other material to justify the making of the decision. I refer to paras 21 and 22 of my reasoning above. Ground 5: Ground 5 read as follows:“The Tribunal failed to have regard to relevant information provided by the Applicant in the form of country information explaining that people are arbitrarily arrested, contrary to section 424 of the Act.” In written submissions in relation to this ground the applicant contended as follows:“The Tribunal failed to have regard to the Applicant’s relevant information regarding the arbitrary arrest and detention of people in Iran, contrary to section 424 of the Act, which provides that the Tribunal may get any information that it considers relevant, but having got that information the Tribunal must have regard for (sic) it in making its decision. This was critical information to which the Tribunal made no reference.”MY REASONING This ground, in my view, misconceives the operation of s 424 and amounts to an attempt to raise an administrative law ground which is not available in respect of “judicially-reviewable” decisions within the meaning of that term in the Act. I shall deal with the latter point first.

Decision

Reasons for decision

CARR J
This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 20 September 2000, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant. The applicant, who is a citizen of Iran, arrived in Australia in June 2000. On 30 June 2000 he applied for a protection visa. On 9 August 2000 a delegate of the respondent refused to grant him a protection visa. On 11 August 2000 the applicant sought review of the delegate’s decision by the Refugee Review Tribunal. THE APPLICANT’S CLAIMS AND THE TRIBUNAL’S DECISION The applicant’s claims, in summary, were as follows:· Between 1979 and 1981 or 1982, when still in High School, he was involved with the Mujahideen-e-Khalq Organisation (“the MKO”), Iran’s leading opposition group. He distributed pamphlets, put posters up for them, sold the MKO newspaper and worked at a shop selling MKO books. He ceased to be involved in these activities after the leader of the MKO, Massoud Rajavi, was forced to flee the country in 1981 and the MKO was suppressed.· In 1980 the applicant’s family moved from Abadan in the south of Iran to Sari in the north. On leaving school he worked in a steel plant and in high voltage electricity plants both in Sari and in Esfahan.· In 1984 he was detained and questioned for three hours in Esfahan in connection with the activities of a group called Hojatieh, led by Mehdi Hashemi, a fundamentalist Islamic group. The applicant gave details of this incident and the events leading up to it.· While carrying out his military service between 1986 and 1988 the applicant had been detained for 104 or 109 days because his file contained information that he had been involved with the MKO. For at least a month he had been bashed every day.· After his military service the applicant returned to work in high voltage electricity plants and managed to complete his examinations to obtain his certificate for year 9. He gave details of his employment record including employment from 1994 with a company in the petro-chemical industry, which employment ended in about November 1999 when he was dismissed. · In his statement accompanying his original application for a protection visa the applicant said that in 1999 members of the Iranian Intelligence Service had detained him, blindfolded him and questioned him for three hours, including questions about what he thought about Ayatollah Khomeini. They had threatened him, kicked him and called him names. As a result of these beatings he had lost some teeth and had back problems. The applicant did not know exactly why he had been arrested, but thought that the Intelligence Service believed that he was not supporting the Islamic regime and was not displaying respect for the religious leaders of Iranian society. · Also in 1999, the applicant had become involved with a few friends in making copies of videotapes for distribution to inform people about what was happening in Iran. One tape was of Ayatollah Montazeri (a dissident cleric, currently under house arrest) speaking against Ayatollah Khomeini. Another tape had been of a student meeting. The Intelligence Service in Teheran had become interested in him, had searched his house, but had not found the videotapes as he had moved them. This claim was made in his statement accompanying his original application. At a subsequent interview the applicant said he had given one of the tapes to a person who he had thought was a friend, but who had actually been working for the Intelligence Service. He had been arrested, but was freed because there had been no proof.· At the hearing before the Tribunal, the applicant explained that he had been arrested in about October 1999 at his sister’s house for possession of an audio-tape of a speech of Ayatollah Montazeri directed against the supreme leader Ayatollah Khamenei and a videotape showing members of the Anasar-e-Hezbollah disrupting a meeting of students at Teheran University. He had been released after three hours, but the Intelligence Service had sent a letter to his employers asking them not to employ him any longer, with the result that he lost his employment in about November 1999 and had decided to leave Iran. · The applicant had converted from Islam, or at least for the time being had no religion. He was interested in Christianity and he was learning about Christianity. If the Iranian Government knew that he wanted to convert to Christianity they would punish him severely. · In March or April 2000 the applicant left Iran travelling on an Iranian passport, (which he had obtained in 1996) in his own name. He had not had any problems leaving Iran because he had used the services of a smuggler.

Ratio Decidendi

Legal Principle Established

Established by: CARR J

Full text does not contain this section.