Nejad v Minister for Immigration and Multicultural Affairs

[2001] FCA 1830

FEDERAL COURT OF AUSTRALIA
Nejad v Minister for Immigration and Multicultural Affairs [2001] FCA 1830

DARYOUSH HOOSHMAND NEJAD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 380 of 2001 

CARR J
18 DECEMBER 2001 
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W380 OF 2001

BETWEEN:	DARYOUSH HOOSHMAND NEJAD Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	CARR J
DATE OF ORDER:	18 DECEMBER 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        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	W380 OF 2001

BETWEEN:	DARYOUSH HOOSHMAND NEJAD Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	CARR J
DATE:	18 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 16 August 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 1 October 2000.  On 20 February 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 15 June 2001 a delegate of the respondent refused to grant a protection visa and on 20 June 2001 the applicant applied for review of that decision.

   THE APPLICANT’S CLAIMS AND THE TRIBUNAL’S DECISION

2. The applicant’s claims were, in summary, as follows:

   ·     He was born in 1958 in Abadan where he had lived at the same address for fourteen years before his departure from Iran. 

   ·     He was married with two children.  His wife and children remain in Abadan.

   ·     He was employed as an electrician in the Abadan refinery from 1988 until 2000.

   ·     He formed a union known as the Abadan Refinery Workers Union to negotiate better pay and conditions with the employer.

   ·     He was an organiser of a demonstration which resulted in the oil company calling in riot police.  He, along with other workers, was bashed.

   ·     He was involved, with other union members, in demonstrations about polluted water at Abadan at the end of June or the beginning of July 2000.  The demonstration became violent and the police were called in.  A friend of his was shot in the leg and the applicant helped to take him to a nearby house.

   ·     The applicant believed that the demonstration was recorded on video, that he was identified as a participant and a friend had told him that he had been identified as one of the leaders of the demonstration.  He was told that if he was arrested he would face severe consequences and possibly death.

   ·     He made his way to Ahwaz where he stayed with a friend.  He learnt that government intelligence agents had raided his house in Abadan in order to arrest him.  He was told that most of his colleagues were arrested and had disappeared. 

   ·     He became frightened for his safety and decided to leave the country. 

   ·     He had left Iran legally through Teheran airport using a passport which had been issued to him in 1995.  A people smuggler had paid the Iranian authorities because he (the applicant) thought that his name might be on the blacklist.

   ·     He had been detained on many occasions because he wore a short-sleeved shirt or because he was out walking with his wife and daughters.  On these occasions he was detained for a few hours at a time. 

   ·     At the hearing before the Tribunal the applicant claimed that he had become a member of the Iran Paad, a monarchist organisation, in December 1996. 

   ·     He had, at the demonstration in Abadan, been the leader of a group of 30 people who shouted slogans against the condition of the water in Abadan, distributed Iran Paad pamphlets and shouted slogans against the Supreme Leader.  The group also distributed 150 newsletters, of which he personally distributed 30. 

   ·     When questioned by the Tribunal, the applicant stated that he was prominently involved in the demonstration but had not been arrested because the security forces did not start to arrest people until a week after the events occurred. 

   ·     The applicant told the Tribunal that he did not fear harm, if returned to Iran, because of his involvement with the union; he feared that he would be harmed because of his activities with Iran Paad and because of his participation in the demonstration in Abadan.

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

   “FINDINGS AND REASONS

   1.  The applicant claims that if he returns to Iran he will be persecuted because of his activities with Iran Paad and his participation in demonstrations in Abadan. In assessing the applicant's claims I am required to determine whether he has a well-founded fear and if so whether what he fears amounts to persecution for a Convention reason.

   2.  When determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the credibility of the applicant. When assessing credibility, the Tribunal must be sensitive to the difficulties often faced by asylum seekers and should give the benefit of the doubt to those who are generally credible, but unable to substantiate all of their claims. However, the Tribunal is not required to accept uncritically any and all allegations made by an applicant. In addition, it is not necessary for the Tribunal to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. Moreover, the Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality. See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MlEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MlMA (1998) 86 FCR 547. If the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true. (See MlMA v Rajalingam (1999) FCR 220).

   3.  I have a number of problems with the applicant's evidence. Significant aspects of it were implausible, internally inconsistent and inconsistent with the independent evidence. Overall the problems with the applicant's evidence are such that I am unable to be satisfied that he has a well-founded fear of persecution for a Convention reason. My reasons for this follow. I accept that the applicant was involved in the union in his workplace. I accept that in the period leading up to the establishment of the union some ten years ago, the applicant was involved in a number of sit-in demonstrations protesting against violations of workers' rights. I accept that on one occasion the anti-riot police were called in during a demonstration and that the applicant and other workers were physically assaulted when the police broke up the demonstration. I accept that the applicant has continued to be involved in protests at work when the union has not been able to negotiate matters with management.

   4.  However, I note that the applicant maintained the same employment at the refinery from the 1988 until his departure from Iran in 2000. The applicant did not claim that his work conditions were less advantageous than those of other workers because of his union membership. Moreover, the applicant indicated that he was on a yearly contract which had been renewed every year from 1988. In my view, if the applicant's employer had any difficulty with the applicant's union activities it is implausible that his contract would have continued to be renewed. In my view, the occasion on which the applicant was assaulted by riot police was an isolated incident and not evidence that the applicant was subjected to persecution for reasons of his union membership. I note that at the hearing the applicant specifically said that he did not fear returning to Iran because of his union membership or activities. In the circumstances, I do not accept the assertion made in the letter provided by the applicant to the Tribunal at the end of the hearing in which it is stated that the applicant was arrested on many occasions because of his activities defending workers' rights. Overall, I cannot be satisfied that the applicant has a well-founded fear of persecution for a Convention reason arising out of his union membership.

   5.  I accept that applicant participated in a demonstration in Abadan in July 2000 concerning the quality of the water in Abadan. However, I do not accept that the applicant is of any interest to the Iranian authorities as a result of his participation in the demonstrations. Firstly, I consider that if the applicant had attracted the adverse attention of the authorities because of his involvement in the demonstration, they would have arrested him at the time. I am particularly of this view in light of the applicant's evidence that he was a prominent participant who organised a group of protesters and was at the front of the demonstration for four to five hours a day for two days. In my view, if the applicant had taken a prominent role in the demonstrations, it would have been a straightforward matter for the authorities to have arrested the applicant while he was at the demonstration.

   6.  The applicant claimed that arrests were not made until a week after the demonstration. In my view, the applicant's assertion in this regard is not supported by the independent evidence before me. The independent evidence, which I accept, does not indicate that arrests took place after the days on which the demonstration occurred. Moreover, the independent evidence suggests that those people were arrested for offences involving property damage. The independent evidence does not suggest that demonstrators not involved in acts of violence were arrested, particularly once they had already left the scene. In my view, if the applicant was not arrested at the demonstration itself, it was because he was an ordinary participant, and not a demonstration leader as he has claimed and because he was not involved in committing property offences.

   7.  Secondly, although the applicant claims that he was wanted for arrest for several weeks before he left Iran, he was nevertheless able to leave the country through the airport in Tehran using a passport in his own name. The applicant claims that he was able to do so because the contact that he used to exit Iran paid a bribe to facilitate his departure. However, the independent evidence before me, which I accept, is that it would be virtually impossible for a person who was wanted by the Iranian authorities to leave Iran through the airport using a passport in his own name.

   8.  Thirdly, although the applicant claims that at the time he left Iran he was wanted for arrest because he participated in the demonstration in Abadan, he made no reference to this when he was interviewed upon arrival in Australia. When I asked the applicant about his failure to failure to mention this claim in his arrival interview, stated that he had been under pressure and that he did not have a lawyer. When I asked him why not having a lawyer would make any difference, the applicant then stated that he did not know why he had not mentioned the matter.

   9.  I accept that for a variety of reasons asylum seekers may be reluctant to disclose full details of their claims on arrival in Australia. This reluctance may arise from asylum seekers' previous experiences with the authorities in their own country, their concern about being sent back to where they came from, or distress and anxiety in relation to the situation they find themselves in. In some cases, they may have been given quite specific instructions about what they should and should not say on arrival in Australia. I accept that reluctance to provide full details of claims is, in many cases, quite understandable. In addition, the record of the interview may be inaccurate for a variety of reasons, including interpreting errors. Accordingly, it may be, at times, inappropriate to place weight on the record of the interview.

   10.  However, in this case the applicant was specifically told that the interview was an opportunity for him to give reasons why he should not be removed from Australia. He was also told that if he said something different at a later interview, this might raise doubts about the reliability of what he had said. During the interview the applicant referred to the Abadan water demonstration and specifically referred to having been involved in the demonstration and to his friend having been shot. In my view, if the applicant did fear that he was at risk of being arrested because he participated in the demonstration, he would have made some reference to this during his arrival interview, however tentatively.

   11.  Overall, I am unable to be satisfied that the Iranian authorities wanted to arrest the applicant because he participated in the demonstration in Abadan in July 2000. I am of the view that the applicant has fabricated this claim in an attempt to enhance his claims to refugee status. I note the alleged summons the applicant has provided in relation to this matter. However, the document does not overcome the problems I have with the applicant's evidence and I am unable to place weight on it as evidence of the truth of the applicant's claims .

   12.  The applicant's other major claim relates to his membership of Iran Paad. I accept that the applicant has joined Iran Paad, as evidenced by the photocopied membership card he provided to the Tribunal. However, I note that this card is undated. The applicant claimed that he joined the organisation in 1996 and that he was active in the organisation in Iran. I do not accept the applicant's claims in this regard. Firstly, neither in his arrival interview or in his application for a protection visa did the applicant mention anything about having been involved in political activities in Iran. At the hearing the applicant stated that he did not do so because he was not allowed to say anything about Iran Paad without permission. However, if the applicant had been involved in a political organisation in Iran, there would have been nothing preventing the applicant from averting to this even if he did not provide full details until after he had cleared it with the organisation concerned.

   13.  Furthermore, even if the applicant had decided not to refer to Iran Paad in his arrival interview for the reason he has claimed, I consider that once the applicant had access to legal advice and representation he would have been in a position to confirm his position and disclose his political activities. In my view, the failure of the applicant to make any reference whatsoever to having been involved in political organisation in his arrival interview or in his protection visa application suggests that the applicant did not join Iran Paad until after he arrived in Australia.

   14.  In any event, the independent evidence before me, which I accept, is that Iran Paad is not active inside Iran. In the circumstances, even if the applicant was a member of the organisation before he left Iran, I cannot accept that he engaged in any activities as a consequence of that membership. I therefore do not accept that the applicant distributed Iran Paad pamphlets at the demonstration in Abadan. Furthermore, the independent evidence also indicates that the Iranian authorities are not threatened by monarchist sympathisers. In the circumstances, I do not accept that the applicant would be at risk in Iran because he has joined Iran Paad.

   15.  I note the applicant's claim that he was detained for a few hours on a number of occasions for such things as wearing a short-sleeved shirt or walking with his wife. I accept that the applicant has been detained on several occasions for these reasons. However, the applicant's evidence does not suggest that he was subjected to serious harm on these occasions. Moreover, there is nothing in the applicant's claims in this regard which suggest that he was detained for reasons of his race, his religion, his membership of a particular social group or his political opinion.

   16.  Overall, I accept that the applicant was a union member, but I am not satisfied that he has a well-founded fear of persecution for this reason. I accept that the applicant was detained on several occasions for matters such as wearing a short-sleeved shirt. However, I am also not satisfied that the applicant has a well-founded fear of persecution for this reason. I accept that the applicant attended a demonstration in Abadan in July 2000, but I do not accept that the Iranian authorities had any interest in the applicant for this reason at the time he left Iran or that they have any interest in him for this reason currently. I accept that the applicant is a member of Iran Paad. However, I am not satisfied that the applicant was involved in this organisation in Iran, or that the authorities would have any interest in him because he has joined the organisation. As the independent evidence indicates that Iran Paad is not active in Iran, I am of the view that the chance the applicant would engage in Iran Paad activities in Iran in the reasonably foreseeable future is remote.

   17.  I have considered the applicant's claims both individually and cumulatively. However, I am unable to be satisfied that he has a well-founded fear of persecution for a Convention reason. 

   CONCLUSION

   18. Having considered the evidence as a whole, I am not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. He therefore does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.”

   GROUNDS OF THE APPLICATION

4. The applicant does not appear to have had legal assistance in drafting his application.  I reproduce below the relevant parts of the application exactly as they appear in that document:

   “He is a member of Iran Padd organisation (Anti-Regim) and he will be persecuted if he returm to Iran by force...

   a.The decision involved an error of law involving the incorrect interpretation of the applicant law or an incorrect application of the law to the facts as found by the Tribunal or both.

   b.The disicion involved an error of law in that the Tribunal made findings of fact upon which its disicion was based that were not rationally supported by probetive and it faild to rationally consider the probative evidance that was before it.” 

   MY REASONING

5. On 25 September 2001 a Deputy District Registrar made directions in this matter.  Those directions included a direction that the applicant file and serve on or before 6 November 2001 all or any of the following:

   (i)an amended application giving particulars of any grounds of review under s 476 of the Act; and/or

   (ii)a statement setting out why he considered that the decision of the Tribunal should be overturned; and/or

   (iii)any affidavit upon which he intended to rely at the hearing of this matter.

6. According to the Court record no such documents were sent to the Court and the respondent’s solicitors say that they were not served with any such document. 

7. At the hearing this afternoon the applicant told me that he had sent a five page handwritten set of submissions in Farsi to the Court together with two further documents.  The first of those documents was a newspaper article in Farsi published in Iran since the Tribunal’s decision was given in this matter.  The applicant explained that the purpose of wanting me to read that newspaper article was to show that, contrary to the Tribunal’s findings, there had been arrests made some time after the demonstrations in Abadan.

1. The second document was a letter of recommendation (in English) from Iran Paad dated about November 2001, again after the Tribunal’s decision.  The applicant sought an opportunity to send those documents to me. 

2. In relation to the five page set of submissions written by the applicant, I took the course of asking him to extract from those pages the reasons why he contended that the Tribunal had erred.  He did so and what he said was interpreted into English.

3. The only complaint which was potentially of significance was that the Tribunal had not contacted Iran Paad to find out whether he was a member of that organisation. As with a similar case this morning, I thought that this might reflect a complaint that the Tribunal had not carried out a procedure required by the Act to be observed, in that the Tribunal had failed to get this information – see s 424(1). However, I decided that there was no basis for that complaint. The Tribunal had accepted that the applicant was a member of Iran Paad, but did not accept that he joined that organisation in 1996 and was active in it in Iran (see paragraph numbered 12 of its reasons). Furthermore, in paragraph numbered 14 of its reasons, the Tribunal said that even if the applicant was a member of the organisation before he left Iran, it could not accept that he engaged in any activities as a consequence of that membership. It gave its reasons for that conclusion.

4. Whether the Tribunal exercises the power conferred by s 424(1) of the Act is a matter for the Tribunal’s discretion. In the circumstances to which I have just referred, I do not think the Tribunal fell into error either in not considering to exercise the discretion or in failing to contact Iran Paad and obtain further information.

5. I gave consideration to adjourning the hearing of the application so that the applicant could forward to me the two documents (the newspaper article and the letter from Iran Paad).  I decided not to do so for the following reasons.

6. First, I considered that in all probability those documents would be inadmissible in relation to the issues which I have to decide in this case.  Neither of the documents was before the Tribunal because both came into existence after it gave its decision. 

7. I considered that the only possible basis upon which the documents might be relevant was if there had been an allegation that there was no evidence or other material to justify the making of the decision. That is, the ground provided by s 476(1)(g) of the Act when read with s 476(4)(b).

8. Even putting aside the question whether such evidence would need to be in admissible form, I came to the conclusion that there would be no point in receiving this further evidence. That was because even if the applicant had been able, by those documents, to satisfy the requirements of s 476(4)(b) he still had to satisfy the requirement of s 476(1)(g) by showing that there was no evidence or other material to justify the making of the decision. There clearly was such other evidence both in relation to the Abadan demonstration claim and the claim based on membership of and activities within the Iran Paad organisation. The applicant, who was not legally represented at the hearing before me today, made other oral submissions which were either of a factual nature or went to the merits of the Tribunal’s decision, or both.

9. I have examined the Tribunal’s reasons and the papers in the Court Book. 

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

11. The Tribunal accepted some of the applicant’s claims – see paragraphs numbered 3, 4, 5 and 16.  However, it made some strong credibility findings against the applicant in paragraphs numbered 3, 10 and 11. 

12. In particular the Tribunal found that it was not satisfied that the Iranian authorities wanted to arrest him because he participated in the demonstration in Abadan in July 2000.  It expressed the view that the applicant had fabricated this claim in an attempt to enhance his claims to refugee status. 

13. The Tribunal also rejected the applicant’s claim that he had joined the Iran Paad in 1996.  It said that the applicant’s failure to make any reference to this matter at his arrival interview suggested that he did not join Iran Paad until after he arrived in Australia.  The Tribunal then considered the position if, contrary to its finding, the applicant had been a member of Iran Paad before he left Iran.  It rejected the applicant’s claims that he engaged in any activities in Iran as a consequence of that membership.  In particular, it did not accept that the applicant distributed Iran Paad pamphlets at the demonstration in Abadan.  It relied on independent evidence that the Iranian authorities are not threatened by monarchist sympathisers.  Accordingly, on the assumption just mentioned, it did not accept that the applicant would be at risk in Iran because he had joined Iran Paad. 

14. The Tribunal considered the applicant’s claims to have been detained for a few hours on a number of occasions for such matters as wearing a short-sleeved shirt or walking with his wife, but found that the applicant’s evidence did not suggest that he was subjected to serious harm.  In my view, the Tribunal did not err in law in that regard.

15. The Tribunal, for reasons which it set out in paragraph numbered 4, rejected the applicant’s renewed claims (the applicant having said at the Tribunal hearing that he did not fear returning to Iran because of his union membership or activities) that he would be arrested on return to Iran because of his activities defending workers’ rights.  On the evidence before it, I consider that it was clearly entitled to reach that conclusion, particularly in view of the applicant’s evidence on that point at the Tribunal hearing. 

16. The Tribunal rejected the applicant’s claim that he was able to depart from Teheran airport by paying a bribe.  It relied upon independent evidence in that regard. 

17. If the second ground of the application discloses a ground of review, which I very much doubt, it has not been made out. 

18. 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. 

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

    CONCLUSION

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

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

A/g Associate:

Dated:             18 December 2001

The Applicant appeared in person:
Counsel for the Respondent:	Mr R E Lindsay
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 December 2001
Date of Judgment:	18 December 2001