Nejad v Minister for Immigration and Multicultural Affairs

[1999] FCA 1827

FEDERAL COURT OF AUSTRALIA

Nejad v Minister for Immigration & Multicultural Affairs [1999] FCA 1827

FARID SEDAGHAT NEJAD v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1011 OF 1999

TAMBERLIN J
SYDNEY
9 DECEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1011 OF 1999

BETWEEN:	FARID SEDAGHAT NEJAD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	9 DECEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application for review 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
NEW SOUTH WALES DISTRICT REGISTRY	N 1011 OF 1999

BETWEEN:	FARID SEDAGHAT NEJAD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	9 DECEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for a review of the decision of the Refugee Review Tribunal (“the RRT”) made by Mr Short, a member, on 16 August 1999.  The RRT was satisfied that the decision not to grant a protection visa to the applicant should be affirmed.  The applicant is a citizen of Iran.  He is aged 30 years of age.  He arrived in Australia in May 1999 and applied for a protection visa on the ground that he was a refugee.  Under the well-known definition of refugee in the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967, a refugee is:

   “a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or owing to such fear is unwilling to avail himself of the protection of that country.”

2. The country against which the applicant must be assessed in this application is Iran.  The substance of the claim by the applicant is that he has a well-founded fear of being persecuted for reasons of religion and is therefore a refugee.

3. The time at which the determination must be made whether a person is a refugee in the present case is 16 August 1999 which is the date of the decision of the RRT.  As mentioned to the applicant earlier in the hearing, the function of this Court is to see if there has been any reviewable error identified in the decision of the RRT.  The applicant before me this morning sought to explain in considerable detail, the reasons why he had not referred to his beliefs in the Baha'i religion at the time when he first arrived in Australia in his application for admission on the basis that he is a refugee.  At page 23 of the Relevant Documents, page two of his application, he stated that he belonged to the Farsi ethnic group and that his religion was Muslim “(Shiet)”.

4. The applicant reiterated much of what he had said before the member of the RRT in order to explain why he had not stated that he was a member of the Baha'i faith, or at least adhered to the principles of that faith, and because of that was in fear of persecution if he were to return to Iran.  The applicant had retained an immigration agent to make detailed submissions on his behalf and these were placed before the member.  One of the reasons given for identifying his faith as Muslim and not Baha’i, was that he had believed that the persons he spoke to on arrival in Australia were somehow connected with the Iranian government, and for that reason he did not wish to disclose that he was other than of Muslim beliefs.

5. It is apparent from the reasoning of the RRT that the member did not consider that the applicant was credible in a number of important respects.  This is of central importance in this case because a great deal of the material on which the applicant relies is dependent on acceptance of statements made by him. 

6. The RRT member accepted that the Baha'i community faces difficulties in Iran, and based this on country information which is referred to in the reasons.  It was pointed out that the RRT is not obliged to accept uncritically all claims made by applicants.  The RRT found that the applicant was "unforthcoming" when pressed for details in relation to his position.  Examples are given of instances where this occurred as well as matters of impression which are referred to in the reasons for decision.

7. The member refers to a number of inconsistencies in the evidence of the applicant. Most importantly the member did not accept that the applicant had converted to the Baha'i faith.  Reliance was placed on the fact, in respect of which the applicant attempted to give an explanation, that he made the claim for the first time before the RRT.  The member dealt with the explanation that the applicant was fearful that the person to whom he was making the statement was in fact related to the Iranian government.  The member clearly thought that if this was a strong religious conviction which was the basis for the applicant leaving Iran, it would have been mentioned at the first opportunity in order to support a claim for refugee status.  The member rejected the applicant’s explanation.

8. Another matter which the RRT member relied on, was that under close questioning, the applicant had demonstrated only a limited and superficial understanding of the Baha'i faith.  Certain questions were put which the member thought were fundamental and the applicant did not appear to have a broad and indeed, in the view of the member, basic knowledge of the faith.

9. It is no doubt not unusual, particularly in countries where educational standards are not high and where there are strong religious beliefs, to find that many members of a particular religion will not have a detailed understanding of the philosophy behind the religion or its precise details.  However, it is not unreasonable to take the view that one would expect a minimal understanding of basic principles.  This is not a matter on which I can express any view on the merits but it does seem to me that it was open to the member, having regard to the reasons which were given, to reach the conclusion that this was a factor that should be taken into account. 

10. The member took into account the claim of the applicant that he had been nervous throughout the airport interview and had been indeed nervous since first arriving in Australia, particularly when speaking to persons in authority.  However the fact remains that, having had the advantage of seeing the witness give evidence, and having asked questions in relation to the Baha'i faith, the member was not satisfied of the applicant’s alleged Baha’i faith.

11. In light of the above findings, the RRT member did not accept that the applicant was being sought by the Iranian authorities when he left Iran, and did not accept his claim that he was in hiding before he left Iran and was smuggled into Pakistan.  The member did accept, however, that the applicant may have had an "altercation" with one of the officers when doing military service, and that as a result he may have been ordered to undertake one month's detention and to remain in the service for an additional two months.

12. The member also stated that he was prepared to accept that as a result of the incident the applicant may have been denied an opportunity to enter university but considered that this did not amount to persecution.  Although the word "may" is used in relation to these findings, I am satisfied that on a fair reading the member intended to make firm findings in relation to these matters.  There is nothing, in my view, by way of error disclosed in the discussion of  whether the disadvantages amounted to persecution. 

13. In addition, the member relied on the consideration that there had been virtually no evidence of any significant interference with the applicant's position whilst living in Iran before he departed for overseas.  The applicant gave an explanation in his initial statement which was translated on 2 June 1999, as to his association with persons of the Baha'i community and the fact that in February 1998 he found a crowd in front of the house and found that the landlord and his wife had been taken away.  This engendered a fear in him.  However, in the view of the member, this was not sufficiently persuasive, taken with the other country evidence, to evidence a well-founded fear of persecution; although it can be accepted no doubt that the applicant had a subjective fear of persecution if returned to Iran.

14. There was some discussion in the reasons as to errors of interpretation by an Afghani interpreter who translated or interpreted the evidence and statements of the applicant.  However, the shortcomings in relation to the translation which were referred to by the applicant do not seem to me to be significant, and it was open to the member to give them little weight in reaching a determination.

15. The applicant has submitted before me that I should in effect adjourn the hearing and permit a new translation to be made of his statements in order to enable him to point out further discrepancies of significance, in his view, in the interpretation.  However, I do not think this is warranted in the absence of specific instances of any significant alleged misinterpretation.

16. In my view, having read the reasons and having heard the detailed statement of the applicant and his additional comments in relation to the submissions of the Minister, I am not

    
    

    satisfied that any error of law has been shown which would provide a basis for judicial review of the RRT decision in this matter.  Accordingly, the order of the Court is that the application for review in this matter is dismissed with costs. 

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin .

Associate:

Dated:             7 January 2000

Applicant appeared in person
Counsel for the Respondent:	F Backman
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 December 1999
Date of Judgment:	9 December 1999