Mozhdehi v Minister for Immigration and Multicultural Affairs

[2001] FCA 1762

FEDERAL COURT OF AUSTRALIA

Mozhdehi v Minister for Immigration and Multicultural Affairs
[2001] FCA 1762

ALI REZA MOZHDEHI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 341 of 2001

CARR J
10 DECEMBER 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 341 OF 2001

BETWEEN:	ALI REZA MOZHDEHI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	CARR J
DATE OF ORDER:	10 DECEMBER 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application be dismissed.

1.        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 341 OF 2001

BETWEEN:	ALI REZA MOZHDEHI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	CARR J
DATE:	10 DECEMBER 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 10 July 2001, 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 on 9 November 2000.  On 1 March 2001 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) (“the Act”). On 4 April 2001 a delegate of the respondent refused to grant a protection visa and on 5 April 2001 the applicant applied for review of that decision.

   THE APPLICANT’S CLAIMS AND THE TRIBUNAL’S DECISION

2. At his initial arrival interview the applicant’s claims were as follows:

   ·     He was a married Shi’ite Muslim from Ahwaz where he lived from 1985 to 2000 at the same address.

   ·     He had worked variously in a car showroom, for a petro-chemicals company, with a builder and as a labourer building dams.

   ·     He left Iran because of a lack of peace and security, financial and social problems, the lack of any future for his children (the eldest of whom had dental problems which he could not afford to have fixed).  He stated that jobs were not awarded to “people like him”, explaining that some people in Iran are “Hizbollah” or religious fanatics who inform on those who do not share their views.  But he did not state that he had ever been targeted in that way.  He said that he was not “favoured” for employment.

   ·     People are hanged in Iran if they commit a crime.  He had once signed a cheque that was dishonoured and was ordered to pay the balance or go to gaol for three days.  He went to gaol.  He specifically denied any involvement by himself or members of his family in political activities, groups and organisations.

   ·     He travelled from Iran on a genuine Iranian passport, issued in his home town, which he disposed of when he reached Ashmore Reef.

   ·     He departed Iran on 25 September 2000 and stayed in Malaysia “less than 4 days” before flying to Indonesia.

3. When lodging his application for a protection visa, the applicant changed some of his claims.  Relevant particulars of the applicant’s claims at this stage were:

   ·     He travelled from Malaysia on a forged Iranian passport given to him by a smuggler in that country.

   ·     He departed Iran illegally from Bandar Abbas seaport on 1 September 2000.

   ·     He had never travelled out of Iran before his journey to Australia.

   ·     His brother had directed him to a smuggler in Bandar Abbas who charged him a fee for a place on a ship leaving that port for Port Klang in Malaysia where he evaded Malaysian immigration and Customs officials by going to the Customs gate at night and waiting till dawn.

   ·     He went to another smuggler in Malaysia on information also provided by his brother.  This smuggler provided him with a photo-substituted passport.

   ·     He had worked from January 1995 to January 1996 for a private company as a sales manager, was unemployed from January 1996 to January 1999 and from January 1999 to June 2000 had worked as a “Bus and Truck Driver (for political purposes)”.

   ·     He had lived at the same address in Ahwaz until only January 2000.

   ·     In 1980 he had produced leaflets opposing “dictatorship” and ran an anti-government library. 

   ·     He campaigned against the Mullahs’ regime during his national service between the end of 1980 and the end of 1982.

   ·     In the meantime he had joined the MKO (a Mujehadin organisation) and distributed pamphlets instructing people on how to make Molotov cocktails.  In 1983 there was a security raid on a house which he and his comrades used to store political documents.

   ·     His two comrades were sentenced to death and he was sentenced to a nine year gaol term.  He only served 29 months after signing a declaration of penitence.

   ·     He stayed away from politics until 1999, when he resumed political activities.

   ·     His brother and some friends asked him to provide a house for meetings.  He chose a house with help from a cousin. 

   ·     On 14 August 2000 Iranian intelligence forces attacked the house, arrested four of the group’s members, found fax machines, copiers, a video camera and 42 CD recordings of a dissident conference in Berlin.

   ·     His comrades arranged for him to escape Iran by ship.

4. At the interview with the respondent’s delegate the applicant showed no detailed understanding of the contents of the claimed library.  He also claimed that he never intended to make Molotov cocktails.

5. Two boarding passes were found amongst the applicant’s personal effects.  One was in respect of a Malaysian Airlines flight on 29 September 2000 which bore the applicant’s correct given names, Ali Reza, and his family name, save that two letters were added to the end of the family name so that it read “Mozhdehiho”.  The other boarding pass was issued by Iran Air in connection with flight IR0840 showing the destination KUL.  It was dated simply “26”.  The primary decision-maker did some research and learned that flight IR0840 departed Teheran International Airport for Kuala Lumpur in 2000 on two days each week, one of them being a Tuesday.  The primary decision-maker then ascertained that 26 September 2000, a day “less than four days” before 29 September 2000, was a Tuesday.  The name on the boarding pass was the applicant’s with the given name initial being the same as his and his surname correctly spelled.

6. At the interview with the primary decision-maker, the matter of the Iran Air boarding pass was put to him.  The applicant responded by saying that the boarding pass related to a trip which he made from Iran to Malaysia the previous year.

7. At the hearing before the Tribunal, the Tribunal made clear to the applicant that these two boarding passes were “sticking points” potentially affecting findings as to his overall credibility.  In response, the applicant said that he had used the Iran Air boarding pass earlier in 2000 rather than in the previous year.  He had obtained the pass under his cousin’s identity.  His cousin’s name was similar to his own: A Mozhdehi.  He had travelled on that occasion under his cousin’s identity and referred to the different spelling of his name on the Malaysian Airlines pass.  The Tribunal said that this explanation “seemed highly implausible”. 

8. The Tribunal noted that more than a month had passed between 14 August 2000, the date of the claimed raid on the safe house, and 26 September 2000, the date which the Iran Air boarding pass appeared to give as the applicant’s date of departure from Iran.  The Tribunal expressed the view that if the applicant had been found to be working with the MKO as a result of the events of 14 August 2000 then, in the five weeks that followed, it seemed reasonable that there ought to have been “more fuss” or that the applicant’s illegal departure might have been “much more hasty”. 

9. The Tribunal questioned the applicant about the dissidents he claimed to have assisted between 1999 and 2000.  He described them as a coalition of forces as disparate as offshore representatives of monarchists, the MKO and an organisation described as the FKO.  The Tribunal described the applicant’s evidence as “confused, vague, uncommitted and sloppy”.

10. The Tribunal referred to some country information regarding security at Teheran Airport. 

11. I shall not attempt to summarise the Tribunal’s findings and reasons.  I set them out below in full.  I have added numbers to the paragraphs to facilitate the references which I make later in these reasons.

    “FINDINGS AND REASONS

    1.  The Tribunal accepts that the Applicant is an Iranian national. It accepts that he has had economic difficulties in Iran and that he is not happy with the government. Due to his overwhelming ignorance in the face of questions testing his knowledge, the Tribunal does not accept that he has had any involvement with dissident groups in Iran. The Tribunal concludes that the Applicant showed a lack of commitment to claims he made from time to time throughout the process leading to this decision: for example, he could not make up his mind about what he used to do with Molotov cocktails, and seemed prepared to revise his story in order to get a more sympathetic response; also he altered his evidence as to who and which group or even groups were involved in the "safe house" in 1999-2000, but failed to provide convincing knowledge when pressed for detail. Since he could remember the names of relevant people in Malaysia and Indonesia, the fact that the Applicant could not remember the name of the alleged people smuggler in Iran suggests that there was no such person. The Tribunal rules out the possibility that the Applicant was merely trying to protect someone close to him (or his brother) because it clearly told him the implications of not being able to recall the name of the Iranian smuggler. The Tribunal concludes that there was no Iranian smuggler.

    2.  The Tribunal accepts the Applicant's initial claim about having been issued with a valid Iranian passport in his home town. It does not accept that he had his photograph inserted into the passport of an almost identically-named person by a Malaysian smuggler. The Tribunal concludes on the evidence before it that the Applicant used his valid passport to obtain an air ticket in his own name which he used in order to depart Iran legally on 26 September 2000. The Tribunal concludes that the Applicant was permitted to leave because the authorities had no case against him current or pending, or any other problem with him. The Tribunal concludes that the Applicant's account of illegal departure from Iran and of the reasons for it are all fabrications.

    3.  The Tribunal is not satisfied that the Applicant suppressed the "real" story due to pressure from others at the early stages of his time in Australia. It concludes that such influence came to bear, rather, on his later evidence, as he became exposed to more people in the course of his processing and became more aware of the tests he would have to pass in order to obtain a protection visa.

    4.  The Tribunal concludes that the Applicant is not a reliable witness in the present matter. It is not satisfied that he faces a real chance of Convention-related persecution in Iran. He is not a refugee.

    CONCLUSION

    5. Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Convention. Therefore the Applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa. "

    GROUNDS OF THE APPLICATION

12. The applicant does not appear to have had legal assistance in drafting his application.  Those grounds are reproduced below exactly as they appear in the application.

    “1.procedures that were requiyed by the migration.  Act to be obseyved in connection with the making of the decision were not observed.

    2.That the decision involved an error of law being an prror of law involved an in correct interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made to decision.

    3.There was no evidence or other material to jushfy the making of the decision.”

    MY REASONING

13. The applicant was not legally represented at the hearing before me today.  He made oral submissions which were either of a factual nature or went to the merits of the Tribunal’s decision, or both.  At one stage of his address I understood him to acknowledge that most, but not all, of his case before the Tribunal was fabricated and he “apologised” to the Tribunal for bringing this “appeal”.  I have disregarded that part of his submission, in case I have misunderstood the applicant. 

14. The applicant has not identified any procedures required by the Act to be observed in connection with the making of the Tribunal’s decision which were not observed.

15. In the earlier part of its reasons the Tribunal can be seen to have set out the relevant law correctly and there is nothing later in its reasons to suggest that it did not apply the law as earlier recited. 

16. The basis for the Tribunal’s decision was simply that it did not believe the applicant.  This can be seen in paragraphs 1, 2, 3 and 4 of its reasons set out above.  In particular, the Tribunal disbelieved the applicant’s claims that he had any involvement with dissident groups in Iran.  It also found that the applicant had left Iran on a valid passport which had been issued to him in his own name.  The Tribunal concluded from this that the applicant was of no interest to the Iranian authorities.

17. In my view, the Tribunal’s findings were open to it, and there was sufficient evidence and material to justify its conclusion that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees’ Convention.

18. In my opinion, the Tribunal made no reviewable error whether of law or jurisdictional error.

    CONCLUSION

19. For the foregoing reasons the application will be dismissed with costs.

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

A/g Associate:

Dated:             10 December 2001

The Applicant appeared in person:
Counsel for the Respondent:	Dr H Schoombee
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	10 December 2001
Date of Judgment:	10 December 2001