Mehandoost v Minister for Immigration and Multicultural Affairs

[2001] FCA 1182

FEDERAL COURT OF AUSTRALIA

Mehandoost v Minister for Immigration & Multicultural Affairs [2001]
FCA 1182

MIGRATION – where applicant claimed that absence of evidence of a certain matter is not capable of supporting a central finding – whether s 476(1)(g) applies to findings of the non-existence of facts – where applicant claimed a well-founded fear of persecution arising from ill-treatment during detention following and as a result of participation in demonstrations – where no connection between detention and participation in demonstrations.

Migration Act 1958 (Cth) s 476(1)(e) and (g), s 476(4)

Charaev v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 554 distinguished
Abila v Minister for Immigration and Multicultural Affairs [2001] FCA 1186 referred to
N258/00A v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 478 applied

MASOOD MEHANDOOST v
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W 109 OF 2001

TAMBERLIN J
SYDNEY (HEARD IN PERTH)
28 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 109 OF 2001

BETWEEN:	MASOOD MEHANDOOST APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	28 AUGUST 2001
WHERE MADE:	SYDNEY (HEARD IN PERTH)

THE COURT ORDERS THAT:

The application is dismissed with 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 109 OF 2001

BETWEEN:	MASOOD MEHANDOOST APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	28 AUGUST 2001
PLACE:	SYDNEY (HEARD IN PERTH)

REASONS FOR JUDGMENT

1. The applicant is a citizen of Iran who arrived in Australia on 30 April 2000.  Shortly thereafter he lodged an application for a protection visa on the ground that he was a refugee within the meaning of the 1951 Refugees Convention as amended by the 1967 Refugees Protocol.  The basis of his claim was that he feared persecution on the ground of political opinion.

2. His application for a protection visa was refused by a delegate of the Minister for Immigration and Multicultural Affairs on 12 September 2000 and an application for review was made to the Refugee Review Tribunal (“the RRT”) pursuant to the Migration Act 1958 (Cth) (“the Act”). Written submissions were prepared for the applicant by Counsel and these raised the following two grounds of review:

   “1.The Tribunal erred in rejecting the applicant’s account of events by reference to the absence of evidence of a certain matter when that absence was not capable of supporting the finding, That finding was central to the decision, which was accordingly not justified by evidence and is reviewable under s.476(1)(g) of the Migration Act 1958 (Cth).

   2.The Tribunal erred, contrary to s.476(1)(e), in failing to hold that on the proper construction of the Refugees’ Convention and Refugees’ Protocol a well founded fear of persecution for reasons of membership of a particular social group or political opinion may arise from ill-treatment during detention following and as a result of participation in a political or social demonstration.”

3. In relation to the first ground, the applicant’s claim was that as a result of his participation in demonstrations in July 1999 he was detained and gaoled.  He claimed that he was placed in detention as a result of his role in those demonstrations and being linked with members of a student pressure group.  He claimed that he was eventually released for 24 hours on the basis that he would provide certain information to officials on his return.  However, he did not return to detention and left Iran.  He stated that he is at risk of persecution on his return to Iran because of the timing and method of his departure from that country.

4. The RRT found that the applicant was not involved in organising or leading the demonstrations and that he was not a member of any formal student or political organisation but was rather part of an informal group of students who got together to discuss “youth issues” from time to time.  The applicant said that he was not an organiser of the July 1999 demonstrations, nor was he involved through their entire period.  The RRT, although expressing some scepticism of the applicant’s claim to have participated in the demonstrations, was prepared to accept that if he was there it was as a minor participant.  The RRT also accepted that the applicant occasionally took part in discussions on youth issues in a loose, informal group.  The applicant told the RRT that he was released from detention after three to four months and stated that his detention was due to his involvement in the demonstrations.  The RRT accepted that the applicant was in detention in Iran but it was not convinced that it was for the length of time suggested by the applicant or that it was because of his political opinion or participation in the demonstrations.  Nor was the RRT “convinced” by the applicant’s description of the circumstances and timing of his being taken into detention one week after the demonstrations.  The RRT referred to country information which indicated that those persons sought out by security authorities some time after the demonstrations were student leaders and journalists rather than ordinary participants.  The RRT was not satisfied that the applicant would have been of sufficient interest to have been sought out by the authorities more than a week after the demonstrations and kept in detention for a further three to four months.  The RRT also referred to country information which indicated that the continuing interest of the authorities in recent times was in the leaders and organisers of the demonstrations rather than in the minor participants.  The RRT did not accept that the applicant was, or would be in the future, of interest to the Iranian authorities as a result of his participation in the demonstrations of July 1999.

5. The basis of the RRT’s finding that the applicant had not been detained for participating in the demonstrations was a conclusion reached by inference from a consideration of the applicant’s evidence coupled with country information.  It is not correct to suggest that the RRT reached its conclusion simply by reference to the absence of information that persons had been rounded up in the way claimed by the applicant.  In my view, the evidence to which the RRT referred, at 27-28, does provide a basis for finding that the applicant had not been detained on account of his participation in demonstrations.  In reaching this conclusion, it is important to note that the RRT recorded that the applicant told it that he was not initially involved in the student demonstrations but joined later when he saw what was happening.  The applicant’s concession that he was not a member of any political student organisation apart from informal discussion groups is supportive of the RRT’s conclusion on this point.

6. Reference was made to the decision of the Court in Charaev v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 554 at [21]. That case is not on point because it turned on the absence of any note in a specific document which was counter to the key factual finding of the RRT in that case. This is not such a case because there is a great deal of additional evidence to form a basis for the conclusion reached by the RRT. There has been no demonstration that a fact relied on by the RRT, namely the absence of any political nexus with the detention, did not exist. The present case is one in which there was evidence justifying the inference of a lack of connection between the demonstrations and the subsequent arrest even if the words “particular fact” could be properly read as referring to something found not to exist.

7. In addition, for reasons given by me in Abila v Minister for Immigration and Multicultural Affairs [2001] FCA 1186, I am in agreement with the reasoning of Katz J in N258/00A v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 478 at 483-486 to the effect that, on its proper construction and when read in conjunction with s 476(4), s 476(1)(g) does not apply to findings of the “non-existence of facts” because it speaks, on its ordinary reasonable construction, in terms of a positive finding that a particular fact exists.

8. The second argument raised was directed to the question of “persecution”. Whilst it can be accepted that, if a person is detained for a political reason and such detention exposes that person to violence or harassment of a random or non-Convention based nature, then a well-founded fear of persecution for a Convention reason may arise. In the present case, however, the vital link between the detention and the Convention reason is lacking. The decision-maker found that the detention was not for political reason and there is no evidence that the ill treatment which followed occurred for a political reason as opposed to random brutality. Therefore, in my view, it cannot be said that there has been an error of law by the RRT within s 476(1)(e) of the Act. It is true that the fact that the ill treatment occurred in detention does not destroy the connection between the ill treatment and the participation in the demonstrations and does not deny the existence of a subjective fear, but nor does it establish that the ill treatment occurred as a consequence of political opinion. Detention and exposure to random brutality without more does not come within the Convention definition of persecution.

9. Accordingly, in my view, there has been no reviewable error of law or principle and, therefore, this application is dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             28 August 2001

Applicant appeared in person:
Counsel for the Respondent:	Mr R L Hooker
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 August 2001
Date of Judgment:	28 August 2001