Makouei, Nader v Immigration and Multicultural Affairs

[1998] FCA 89

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG327 of 1997

BETWEEN:	NADER MAKOUEI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	WILCOX J
DATE:	6 FEBRUARY 1998
PLACE:	MELBOURNE

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J: This is an application by Nader Makouei to set aside a decision of the Refugee Review Tribunal refusing his application for recognition as a refugee and the grant of a protection visa.  The application is based on two alleged errors of law and an alleged failure to accord to the applicant a fair and just hearing and to act according to substantial justice.  For the purposes of dealing with the matter, I apply the decision of the Full Court in Eshutu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300, in taking the view that a breach of s 420 of the Migration Act 1958 attracts the Court's power to review the Tribunal’s decision under s 476 of the Act.

Dealing first with the alleged errors of law, as I say, two errors are claimed.  First, the contention is put that the Tribunal erred in law in holding that denial of employment in the government sector to the applicant does not constitute “persecution” within the meaning of the Refugees' Convention.  In support of that proposition, reference is made to the decision of the High Court of Australia in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, and in particular what was said by McHugh J at 430-431. His Honour said this in reference to a decision of the Federal Court of Appeal in Canada:

“The Court rejected the proposition that persecution required deprivation of liberty.  It was correct in doing so, for persecution on account of race, religion and political opinion has historically taken many forms of social, political and economic discrimination.  Hence, the denial of access to employment, to the professions and to education or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution if imposed for a Convention reason.”

It will be noted his Honour referred to denial of access to employment.  He was not concerned to distinguish between employment in the public sector and employment in the private sector.  I have no difficulty in accepting that treatment of an individual that had the effect of consistently denying to that person any type of employment would constitute “persecution”, if carried out for a Convention reason.  For example, I can imagine a case where a government, or a person acting without hindrance from government, interfered with each employment opportunity a person obtained.  If that conduct fell into a pattern that had the effect of denying the person any opportunity of employment, then it seems reasonable to categorise it as persecution.  On the other hand, a mere isolated incident, whereby a public official caused a person to fail to obtain employment or to lose a job, almost certainly would not warrant the tag of persecution. 

The question whether a consistent policy to deny a person employment in the public sector, while not interfering with that person's opportunities to obtain employment in the private sector, is a more difficult question.  Perhaps something would depend upon the relative importance, in terms of economic benefits and career advancement, of the public and private sectors in the relevant country.  If most employment, and most opportunities for reasonable income levels and career advancement in that country, lay in the public sector, it might be possible to describe denial of public sector employment as persecution; even though nobody interfered with the person's opportunities to obtain employment in the private sector.

It is not necessary to reach a firm view about this interesting question.  It is apparent from the way the matter is discussed in the Tribunal's reasons that the issue did not really arise.  In order to make that clear, I will set out the relevant paragraph in the decisions of the Tribunal’s decision:

“After the Applicant completed his military service in 1993, he again attempted to enter university but was not permitted to do so.  The Tribunal finds this, having regard to my previous findings about the Applicant's credibility, did not amount to persecution for a convention ground.  In the past the Applicant was able to enter university but he did not complete his university course.  I do not accept the Applicant's claim that he was expelled from university for any alleged political activities.  Nor does the Tribunal accept that the Applicant's inability to seek employment with government departments as credible.  Even if the Tribunal were to accept that the Applicant was unable to obtain employment with the government because of some convention ground the Tribunal finds that this amounted to discrimination but not persecution.”

It will be noted the last sentence, which is said to contain the alleged error of law, follows a sentence in which the Tribunal declines to accept the applicant had been unable to seek employment with government departments; the factual foundation necessary for the matter to become a live question of law is lacking.  In this situation, even if I reached the view that denial of employment in the public sector might amount to persecution, rather than mere discrimination, I would not thereby be warranted in setting aside the decision.  The legal question would be purely hypothetical, having regard to the finding of fact.

The second matter said to constitute an error of law arises out of the circumstance that the applicant produced to the Tribunal hearing a document that appeared to summons him to attend court in his home city of Makou, Iran on Sunday, 31 December 1995.  A translation of the document was before the Tribunal.  The translation indicates the document was issued on 23 August 1995.  In order to put the date into context I should say the applicant's version of events is that, in about March 1995, he left Iran and crossed into Turkey, where he entered a university, apparently at Ankara.  He remained there for some months, but made several return trips to Iran to see his mother who was not well.   The applicant says he crossed the border illegally.  This gives rise to another matter that needs consideration:  certain stamps in his passport.  In August 1995, it appears, the applicant was still in Turkey.  In about January 1996, he travelled to Indonesia where a sister lived.  Subsequently, he came to Australia. 

The applicant was asked about the summons.  Understandably, he did not know much about it.  He referred to it in a written statement he prepared for the benefit of the Minister’s delegate, who had initially to consider his request for recognition as a refugee.  In that statement he said:

“After my return to Turkey I gained entry to the Middle East University in Ankara where I was admitted to study mechanical engineering.  Despite fearing for my safety I wanted to return to Iran because my mother's health was deteriorating.  However my father advised me not to come back because he had received a letter from the Iranian Court demanding that I appear before the judge.  I believed this was related to my previous difficulties with the authorities and my imprisonment.  I asked my father to go to the Court and ask the authorities what they wanted from me.  My father was told that the authorities would find me wherever I was.  My father told them I was in Turkey.  When I discovered this I became terrified because I was certain I would be found and murdered or made to disappear like many other Iranian dissidents living in Turkey.”

He went on to say he needed to act quickly and, therefore, decided to go to Bandung, Indonesia.  I infer the father’s information about his being wanted must have come shortly before his decision to leave Turkey for Indonesia, which apparently took place in January 1996. 

The situation about the summons was not further elucidated in evidence.  This is not surprising, the applicant knew little about it.  The Tribunal dealt with the matter of the summons very briefly.  There was a question about the authenticity of the document, but the Tribunal accepted its authenticity for the purpose of considering the matter.  In his decision, the Tribunal member said this:

“However even if the Tribunal were to accept that a Summons was issued for the Applicant to attend a court there is no evidence and I do not think the Applicant's claims as credible, that the Applicant was required to attend court for any matter relating to either his family background or his political opinion or political activities.”

If one breaks up that statement into its two components, it will be obvious the Tribunal is saying, first, that there is no evidence that the applicant was required to attend court for a matter relating to his family background, or his political opinion or political activities.  That statement is literally correct and it is not suggested otherwise.  The second component of the sentence seems to be that the Tribunal member does not accept as credible the applicant's claim, as set out in his statement, that the summons was "related to my previous difficulties with the authorities and my imprisonment."  The Tribunal member was not satisfied this was credible.  He does not give reasons but it is relevant to note the applicant himself did not give a source for his alleged belief.  He does not attribute this belief to anything said to him by his father, and the applicant's previous political activities were some years in the past. 

All one can say about the summons is that it gives no clue as to the reason why the applicant was required in court.  The document does have a line where the reason is supposed to be disclosed but, tantalisingly, this was completed with the words, "for presence at court".  This reason is compatible with the applicant being required in connection with a civil claim or even as a witness.  One simply does not know.  I think all the Tribunal was saying was that it was not satisfied that the summons was related to political matters, so as to be an ingredient in a persecution claim.

Mr Hurley criticises the Tribunal member on the basis that he put the applicant into the position of having to establish, positively, a reason related to the Convention.  I do not think this is correct.  I agree the applicant is not required, positively, to establish a likelihood of persecution, he only has to show a real chance of persecution for a convention reason, if returned to Iran.  However, I think all the Tribunal was doing was to ask itself whether it was satisfied it bore on the question whether there was a well‑founded fear of persecution.  Because of the lack of  information about the summons, for which nobody was to blame and for which the applicant was not in fact blamed or criticised, the Tribunal member felt the summons did not carry the claim any distance.  I think he was entitled to take that view and I discern no error of law in relation to it. 

The matter of substantial justice was said to be a procedural matter and I treat it as arising under s 420. However, when one looks at what was argued in support of the ground, it seems that the submission really is that the Tribunal fell into some errors in regard to its treatment of the facts. The first matter arises out of the circumstance that the applicant said in his initial statement that his father had been involved in political activities. In that statement he said this:
“In 1979, as a 12-year-old, I assisted my father in his political activities and began to understand the things he and others were struggling for”.  He had already stated his father was a supporter of the People's Mojahedin Organisation, which was opposed to the Iran government.  The statement did not give any detail about the father's political activities.  For example, there was no indication whether his father was an organiser, attended meetings, or distributed literature, or what he did.  In fact there was no real information at all.  The statement did make the claim that the father was imprisoned from 1988, when there was apparently an attempted coup in Iran led by the Mojahedin, until 1992.  Unlike many people associated with the Mojahedin, the father escaped execution.

At the hearing before the Tribunal questions were asked about the father's activities.  Mr Hurley, on behalf of the applicant, criticised the Tribunal member for describing the totality of the evidence about the father as being vague and lacking in substance.  But that is a fair description of the evidence about the father's activities.  If this vagueness and lack of substance had arisen out of a suggestion by the Tribunal member that it was not necessary or desirable to say anything more about the father's activities, then it would be quite unfair to criticise the applicant's case on the ground of vagueness and lack of substance.  However, there is no suggestion in the transcript that the Tribunal member misled the applicant or his solicitor or caused either of them to believe it was not necessary to go into greater detail about the father's activities.  On the contrary, the Tribunal member asked many questions about the situation of the father and the events of 1988 and subsequent years.  The applicant gave information in response to this but he did not actually say what his father did during that time.

The Tribunal member asked the applicant how it came about that the father escaped execution given that very many people, apparently running into thousands, who were opponents of the regime were executed at that time.  The applicant gave an answer in which he speculated - and that is all he could do, so the use of the word does not imply any criticism - that the judge might have been influenced by his father's status as a local teacher.  At the end of this discussion, the Tribunal member asked the solicitor for the applicant whether there were any other questions he wanted to ask the applicant in regard to this matter.  The solicitor said:  "There are no other questions".

I am at a loss to see how the Tribunal member could have carried this matter further.  I invited Mr Hurley to suggest what questions might have been asked by the Tribunal member.  Without any disrespect to him, I did not get a clear answer to that question.  I think it is a fair comment that the evidence about the father's activities was vague and lacking in substance, but this was not because of anything done or said by the Tribunal member.  It was because the applicant's case did not include any real information about the father's activities.

The second matter is not unlike that just mentioned.  I have previously said that, in the period after he left Iran to go to Turkey, the applicant re-entered Iran on more than one occasion; he says because his mother was ill.  His home town of Makou is almost on the Turkish border, apparently only about 30 kilometres from it.  He says it was possible for him to pass between the two countries without going through the normal official channels because he knew the country well.  I can understand this would be so.  He says he crossed into Turkey legally and had his passport stamped in the usual way, both by the Iranian officials as he exited Iran and the Turkish officials as he entered Turkey.  He also says that, when he left Turkey to go to Indonesia, he had a stamp put on his passport in the usual way.  All the other stamps, which purport to show crossings between Iran and Turkey, he described as not genuine.

Regrettably, the words used in regard to this matter were confusing.  The issue of the genuineness of these stamps was raised clearly in the decision of the delegate.  The significance of the matter, of course, was that the applicant was saying he was under threat of persecution in Iran yet examination of the passport suggested that, during a relevant period, he managed to come and go between Iran and Turkey on a number of occasions without difficulty and with official sanction.  The delegate suggested the stamps indicated he had no problem.  So the issue was clearly raised before the Tribunal hearing.  Notwithstanding this, the evidence given by the applicant to the Tribunal failed to reveal what, I am told, was his real case.  His real case, I am told, is that he bypassed the official checkpoints in travelling between Iran and Turkey but then arranged for a stamp to be irregularly applied to his passport.  He says these stamps were not false; they were the stamps normally used for people who passed through the checkpoints with official sanction; but they were applied to the passport by officials surreptitiously and in return for bribes.  I understand that case but it is a fair comment that it is not a case put to the Tribunal.  On the contrary, over many pages of discussion,  the various stamps were examined and they were categorised as being either “genuine” or “fake”.

After the hearing was complete, the Tribunal member sent the passport to the Document Examination Unit and received a report in which the view was expressed that the stamps were all genuine; genuine in the sense they were what they purported to be.  Of course the Document Examination Unit member could not say anything about the circumstances in which they were applied.  This report was sent to the solicitor for the applicant with an invitation to comment by a particular date.  The solicitor responded with a letter in which he dealt with each of the stamps and said whether or not the stamp was authentically issued.  This language gets closer to the case that has been explained to me today but still did not reveal exactly what the applicant was claiming.

In these circumstances, I do not find it surprising that the Tribunal member dealt with the matter by simply accepting the statement from the Document Examination Unit that the stamps were not forgeries.  This information was treated only as an additional factor in the Tribunal's decision not to accept the thrust of the applicant's case of persecution.  Nonetheless, if it had been clearly wrong, I would have taken the view there was a need to reconsider the decision.  In practice it is difficult for a decision-maker to leave out of account one aspect of the facts that seems to point in a particular direction.  However, I think the view expressed about this particular matter fairly reflected the case put to the Tribunal by the applicant.  I do not think it can be said that the way in which the matter was handled denied substantial justice.

The final matter to which reference has been made is that the Tribunal commented on the delay of the applicant in making an application for refugee status after he arrived in Australia.  The delay was not very great, something under two months, but the Tribunal regarded it as significant.  The actual statement of the Tribunal was in this form:  “The Tribunal is of the opinion that this is determinative of the applicant's genuineness in his application for protection”.

Mr Hurley rightly points to the strength of the word "determinative".  If indeed the Tribunal had acted on the basis that the delay in making the application concluded the question of whether the applicant genuinely had a fear of persecution if returned to Iran, then this would be a clear error of law.  I do not disagree with the view that the delay is a relevant matter in considering genuineness but it certainly goes far too far to say that it is determinative.

However, two comments are appropriate.  First, I do not think the Tribunal meant to say the delay concluded the case.  Had this been the Tribunal's opinion, it would not have been necessary for the member to write the following seven pages of his decision.  The case would have finished at that point.  Second, the real issue in the case was not the sincerity of the applicant in claiming a fear of persecution, that is to say, the subjective element in the test of refugee status but rather whether the claim was well-founded in point of fact.  That was the issue which occupied the main attention of the Tribunal member, both at the hearing and in his decision.

In my opinion the word "determinative" was an unfortunate one to be used but I cannot accept it meant there was denial of substantial justice or other legally significant error in the decision of the Tribunal.

Mr Hurley put the matter to me with great care and thoroughness. I have some sympathy with his client who obviously wishes to remain in Australia but I do not think this is a case that falls within s 476 of the Migration Act and the application must be dismissed.

[There was a discussion on costs.]

The order of the Court will be the application be dismissed with costs.

I certify that this and the preceding  six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:            6 February 1998

Counsel for the Applicant:	T Hurley
Solicitor for the Applicant:	Erskine Rodan & Associates
Counsel for the Respondent:	P J Booth
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 February 1998