Mianji v Minister for Immigration and Multicultural Affairs

[1999] FCA 226

FEDERAL COURT OF AUSTRALIA

Mianji v Minister for Immigration & Multicultural Affairs [1999] FCA 226

MOHAMMED REZA KHAJEH  GHIASY MIANJI v
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 1409 OF 1998

TAMBERLIN J
SYDNEY
11 MARCH 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 4109 OF 1998

BETWEEN:	MOHAMMED REZA KHAJEH GHIASY MIANJI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	TAMBERLIN J
DATE:	11 MARCH 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT
Ex-Tempore Judgment

1. The applicant is an Iranian National who arrived in Australia in August 1998.  He met with officials at the airport and informed them that there was no freedom in Iran, that he could not return to the countries he had visited after leaving Iran and that he wished to stay in Australia.  The Refugee Review Tribunal (“the RRT”), comprised of Mr Hoystead, reviewed and considered the application of Mr Mianji for refugee status and delivered a decision with reasons on 26 November 1998. 

2. The decision made by the RRT was that it was not satisfied on the evidence that the applicant had suffered any harm in Iran for reasons of race, religion, nationality, membership of a particular social group or political opinion, nor that there was any real chance that the applicant will suffer such persecution on return.  Further, although the RRT accepted that Mr Mianji had a subjective fear of persecution on returning to Iran, it concluded that looking at the objective facts it did not find that such a fear was well founded.  For those reasons the RRT found that he was not a refugee within the meaning of the 1951 United Nations Convention Relating to the Status of Refugees as amended by the 1967 Protocol (“the Convention”).

3. In approaching the question whether a person is a refugee it is necessary for the courts and tribunals to apply the definition in the Convention, which does not cover of course all cases in which a person has a fear of returning to the country of which he or she is a national.  The Convention has been carefully formulated and the definition cast in such a way as to only cover persons who can establish particular grounds. 

4. The applicant has applied to this Court for an order of review under the s 476 of the Migration Act 1958 (Cth). The grounds on which this Court can review the decision of the RRT are limited by the Act. The specific grounds which are notified in the application for review are that procedures required to be followed by the Act were not observed, and that the RRT failed to act in accordance with substantial justice and the merits of the case as required by the Act. Alternatively and independently, it is said that the decision involved an error of law, comprising the incorrect interpretation of the law or an incorrect application of the law to the facts as found. It was further said that there was no evidence or other material to justify the making of the decision.

5. I have given careful consideration to the reasons for decision formulated by Mr Hoystead on 26 November and it appears evident from the decision that the determination made by him turned on his appreciation and views on the facts which were placed before him.  Strong findings as to lack of credibility were made by the member in this case, because it is common ground that the applicant admitted that a false story had been presented to the RRT on the first day of the hearing.  To his credit the applicant admitted that the story was false and gave an explanation for making the false story.  This related to the great stress that he was under as a result of his concern with respect to his father, who he had been told had been arrested and imprisoned, and naturally the applicant felt great distress on hearing this news.  The applicant says that this affected his evidence.

6. The matter was heard over two days before the RRT and the conclusion of the member was that having had the opportunity of observing the manner in which the evidence was given by the applicant and of considering the submissions, it formed the view that the only truthful evidence the applicant gave was during his withdrawal of the evidence that he had given during the second half of the first hearing day.  The RRT was satisfied that the applicant's evidence of his involvement with the Mujahadeen in distributing their newsletters was untrue. 

7. Given this strong finding on credibility and the strong finding as to the facts in this case, the decision of the RRT in my view was one which was open to it.  It was for the RRT to determine questions of fact.  It accepted that the applicant had genuine concerns about returning to Iran because he understood that as he had applied for asylum he faced certain punishment on return to Iran.  Moreover, the RRT member, after considering country information from the Department of Foreign Affairs, was not satisfied that the Iranian authorities would know that the applicant had sought asylum in Australia, and was satisfied that he had no problems of a Convention nature before he left Iran.

8. The decision of the RRT is carefully cast.  It turns essentially on questions of fact.  The RRT had an opportunity to consider all the material placed before it and to observe the demeanour of the applicant before reaching its conclusion.  In this matter I am satisfied that it was open to the RRT to reach the conclusion which it did.

9. I am also satisfied that there has not been shown to be any error in relation to the observation of procedure or any failure to act in accordance with the substantial justice and the merits of the case.  Accordingly, the decision of the Court is that this appeal should be dismissed. 

10. Having regard to what has been put to me by the applicant I think that any order as to costs would be futile and in the general exercise of my discretion with respect to costs I decline to make any order as to costs. I have heard somewhat belatedly what counsel for the Minister has put to me on the question of costs, but I think that on the material which is before me at the moment, I am satisfied that an order ought not be made and accordingly I decline to make any order.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             11 March 1999

For the Applicant:	Litigant in person
Counsel for the Respondent:	R Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 March 1999
Date of Judgment:	11 March 1999