Mehrabi v Minister for Immigration and Multicultural Affairs

[2001] FCA 472

FEDERAL COURT OF AUSTRALIA

Mehrabi v Minister for Immigration & Multicultural Affairs [2001] FCA 472

IMMIGRATION LAW – protection visa – refugee - review of a decision of the Refugee Review Tribunal– whether error of law by Refugee Review Tribunal – admission of evidence not before the Tribunal

Migration Act 1958 (Cth) Pt 8, s 476

Ozberk v Minister for Immigration & Multicultural Affairs (1998) 79 FCR 249 followed

Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 applied

ASGAR MEHRABI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 125 OF 2000

MARSHALL J
MELBOURNE (HEARD IN PERTH)
27 APRIL 2001

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 125 OF 2000

BETWEEN:	ASGAR MEHRABI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	27 APRIL 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs, including reserved costs, if any.

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 125 OF 2000

BETWEEN:	ASGAR MEHRABI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MARSHALL J
DATE:	27 APRIL 2001
PLACE:	MELBOURNE (HEARD IN PERTH)

REASONS FOR JUDGMENT

1. The applicant, Mr Asgar Mehrabi, is a citizen of Iran. He arrived in Australia on 20 November 1999. On 10 December 1999, Mr Mehrabi applied to the respondent for a protection visa on the alleged basis that he would face political persecution if returned to Iran. On 8 February 2000, a delegate of the respondent denied the application. Mr Mehrabi then applied to the Refugee Review Tribunal (“RRT”) to review the decision. On 30 June 2000, the RRT affirmed the decision of the delegate not to grant a protection visa. On 27 July 2000, Mr Mehrabi applied to the Court for an order for review of the decision of the RRT pursuant to Part 8 of the Migration Act 1958 (Cth) (“the Act”).

2. The hearing of the application before the Court occurred on 27 February 2001. Mr Robert Lindsay of counsel appeared for Mr Mehrabi pursuant to the Court’s pro bono assistance scheme under Order 80 of the Rules of Court. Mr Ari Jenshel of counsel appeared for the respondent.

   MR MEHRABI’S CLAIMS BEFORE THE RRT

3. Mr Mehrabi claimed he would face persecution if returned to Iran on the basis that he:

   ·    illegally sold alcohol

   ·    sold Western and pornographic movies

   ·    distributed political videos

4. In the RRT’s reasons for decision, the RRT summarised Mr Mehrabi’s claims as follows:

   “The applicant claims that he illegally sold liquor, he was detained twice for this, in September 1999, his business was raided, and the authorities found not only pornographic videos and liquor, but also a political video, and arrested his partner; and after the applicant left Iran, the authorities went to his home, found some more political videos, and detained his brother from then until, at least, the hearing date in March 2000. The applicant said that he distributed videos (pornographic and political) as a form of political protest.”

   THE RRT’S FINDINGS

5. In relation to Mr Mehrabi’s claim that he would suffer persecution for selling liquor, the RRT found that “the penalties for selling liquor [in Iran] are very harsh… and against accepted principles in Australia of human rights”. However, the RRT found any persecution for selling liquor would arise as the result of “breach of a law of general application, not persecution for … political opinion, actual or imputed”. Consequently, this was not a claim on which Mr Mehrabi could rely on under the Act.

6. In contrast, the RRT accepted that if Mr Mehrabi was involved in the selling and distribution of Western, pornographic and political movies, he faced a real chance of persecution on the ground of imputed political opinion.

7. However, ultimately, the RRT concluded that Mr Mehrabi’s evidence was not credible, but fabricated for the purpose of obtaining a protection visa. In coming to this conclusion the RRT noted “implausibilities, inconsistencies and unusual aspects” in Mr Mehrabi’s evidence, including:

   ·    the implausibility that Mr Mehrabi could have been detained for periods of six and three months without the knowledge of his parents, whom which he lived;

   ·    the implausibility of hiding the result of 75 lashes from his parents;

   ·    contradictions and discrepancies in Mr Mehrabi’s evidence regarding his religious and political views; and

   ·    discrepancies in dates and other evidence.

   CONTENTIONS OF THE APPLICANT AT THE HEARING

8. At the outset of the hearing Mr Lindsay abandoned the original grounds of review in the application and, with leave, substituted four new grounds. I will consider these in turn.

   GROUND ONE

9. Mr Lindsay first contended that the RRT erred in finding that Mr Mehrabi did not have a well founded fear of persecution for reasons of actual or imputed political opinion. Mr Lindsay described this first ground of review as his client’s “principal submission in this case”. The gravamen of Mr Lindsay's submissions on ground one was that his client should have been believed. It was submitted that:

   "The principal submission of the applicant is that the critical evidence upon which the Tribunal relied to justify the finding that the applicant was not to be believed was a misstatement of the evidence provided by the applicant."

10. However, the conclusions reached by the RRT were open to it on the evidence before it. Mr Lindsay's first ground appears to amounts to no more than an invitation to the Court to engage in an impermissible merit review.

11. In an attempt to support the submission that Mr Mehrabi should be believed, Mr Lindsay sought to rely on material that was not before the RRT to confirm his client's version of events with respect to the timing of his mother’s hospitalisation. Such material is inadmissible before the Court. See Ozberk v Minister for Immigration & Multicultural Affairs (1998) 79 FCR 249 at 254 to 255. See also Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 at [27] where a Full Court said:

    “It is beyond question that the power of the Court under s476(1) generally and s476(1)(g) in particular does not extend to a re-examination of any of the factual matters ventilated before the Tribunal.”

12. Furthermore, Mr Lindsay submitted that there was no evidence to support or justify the finding that Mr Mehrabi was not to be believed. This submission is also rejected. It is merely another re-formulation of a submission that quibbles with findings about credibility which were open to be made by the RRT.

    GROUND 2

13. Second, Mr Lindsay submitted:

    “The Tribunal erred in disbelieving the applicant had been convicted, detained and flogged for selling liquor.”

14. This second ground is not a proper ground of review for the purposes of an application under Part 8 of the Act. This ground was only tentatively argued at trial. It has no substance. The RRT was entitled to disbelieve Mr Mehrabi’s claims about his liquor-related punishment given the inconsistencies in his evidence which are referred to in its reasons for decision.

    GROUND 3

15. The third ground alleged that the RRT misrepresented Mr Mehrabi when it concluded that he should not be believed about certain matters including:

    "(a) selling liquor and pornographic videos…

    (b) the Majahideen being involved in the making of videos…

    (c) his selling of pollitical videos…"

16. This, again, is not a proper ground of review under the Act. It involves a complaint about a finding of fact which was open to the RRT to make. In any event, Mr Lindsay conceded that the RRT’s findings on the above matters “… certainly doesn’t seem to have been central to the decision of the Tribunal ... ”.

    GROUND 4

17. The fourth ground alleged that the RRT erred in law by not finding the applicant faces a real chance of persecution when certain matters were taken into account. These matters included:

    “(a) that whether or not the applicant left illegally, he will return without valid papers;

    (b) that there was a likelihood the authorities would be aware that he has sought asylum in Australia;

    (c) once accepted liquor was found at his business premises and political videos at his home… he will face severe punishment.”

18. None of the above suggested findings are matters on which the decision turned. The fourth ground was not developed at trial. It does not relate to a valid ground of review under s476 of the Act.

    CONCLUSION

19. The entire case for Mr Mehrabi has the distinct flavour of an attempt to re-run the factual case before the Court rather than raise any true question of law. Consequently, the application will be dismissed with costs.

    The Court will order as follows:

    1.        The application be dismissed.

    2.        The applicant pay the respondent’s costs, including reserved costs, if any.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:             27 April 2001

Counsel for the Applicant:	Mr R E Lindsay (appeared pro bono)
Counsel for the Respondent:	Mr A A Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 February 2001
Date of Judgment:	27 April 2001