Nikoee, H. v Minister for Immigration, Local Government & Ethnic Affairs

[1991] FCA 717

Re: HASSAN NIKOEE
And: MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. S G241 of 1990
FED No. 717
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
Von Doussa J.(1)

CATCHWORDS

Administrative Law - Immigration - application for review of decisions refusing resident status and refugee status - Iranian seaman entering Australia by deserting ship - rejection by respondent's delegate of applicant's claims to be a member of a monarchist group and to have an anti-revolutionary profile on grounds of credit - whether irrelevant considerations taken into account - whether relevant considerations not taken into account - whether decisions unreasonable - whether conclusion that the prospect of a civil penalty in Iran for deserting ship, which could attract a lashing, did not give rise to "strong compassionate or humanitarian grounds" was unreasonable

Administrative Decisions (Judicial Review) Act 1977

Migration Act 1958, s.6A(1)

Convention on Status of Refugees, Geneva, 1951: Article 1A

HEARING

ADELAIDE

#DATE 22:11:1991

Counsel and solicitor for applicant: Mr D. Nyamirandu

Counsel for the respondent: Ms S. Singh

Solicitor for the respondent: Australian Government Solicitor

ORDER

The application for an order of review be dismissed.

The applicant pay the respondent's costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The applicant seeks judicial review under the provisions of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") of decisions made by the respondent Minister through his delegate on 24 July 1990 to refuse applications made by the applicant for refugee status and for resident status.

1. At the date of the decisions under review the applicant was a 30 year old married Iranian male who had been born in Abadan, Iran. His wife, children, and other family members were in Iran. He had arrived in Australia on 28 April 1989 as a crew member on board the "M.V. Adib" at the port of Wallaroo. When the vessel left the port on 15 May 1989 he was reported absent. On 22 May 1989 he reported to the Department of Immigration Local Government and Ethnic Affairs ("DILGEA") in Adelaide where he was interviewed. By deserting ship at Wallaroo the applicant entered Australia as a non-citizen without being the holder of an entry permit. He became a prohibited non-citizen pursuant to the former s.5D of the Migration Act 1958.

2. On 14 June 1989 the applicant was refused a temporary entry permit and a resident entry permit. An order for his deportation under the former s.18 of the Migration Act 1958 was signed. Shortly thereafter the applicant instructed solicitors. Those decision were challenged under the ADJR Act and the deportation of the applicant was stayed. The validity of these decisions is no longer of any importance as later events have overtaken them.

3. On 26 June 1989, and on 29 June 1989, the applicant's solicitors made submissions in support of the applicant's claims, and advised that formal applications for refugee status and resident status were being prepared. These applications, which were prepared with the assistance of the applicant's solicitors, were lodged on his behalf on 3 and 4 July 1989 respectively. Additional information was supplied by the solicitors on 27 July 1989. The applicant was interviewed by a Migration officer on 28 November 1989 in connection with his application for refugee status. That application was considered by the Determination of Refugee Status Committee (the DORS Committee) on 9 February 1990 which at that time unanimously resolved to recommend against the grant of refugee status.

4. On 13 March 1990 the applicant belatedly authorised his solicitors to provide DILGEA with a letter dated 25 September 1989 from Amnesty International Australia in support of his applications. On 9 May 1990 DILGEA wrote to the applicant's solicitors identifying topics in the claims made by the applicant where the Department perceived there were difficulties with the applicant's credibility, and sought his comments. The applicant's solicitors responded on 18 May 1990. On 22 June 1990 the application for refugee status was reconsidered by the DORS Committee which, by a majority of 3 to 1, resolved against recommending the grant of refugee status. This recommendation was transmitted to the respondent Minister delegate, and the decisions under review were then made.

5. The applications for refugee status and resident status sought to invoke the provisions of the former paras.6A(1)(c) and 6A(1)(e) of the Migration Act. The Act has since been subjected to substantial amendments which came into force on 19 December 1989, including provisions in the Migration Legislation Amendment Act 1989 (No. 59 of 1989) which repealed s.6A. The applications have, however, proceeded under the former provisions. Relevantly s.6A provided:
   

"6A. (1) An entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say -

(a) ...

(b) ...

(c) he is the holder of a temporary entry permit which is in force and the Minister has determined, by instrument in writing, that he has the status of refugee within the meaning of the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 or of the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967;

(d) ...

(e) he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him."

1. The applicant has at no time been the holder of a temporary entry permit, and in that respect he has not been eligible to fulfil either of the paragraphs on which he relies. However the respondent's decisions against the applicant are not based on this ground. The respondent and officers of DILGEA have at all times recognised that if the applicant established the status of a refugee, or strong compassionate or humanitarian grounds for the grant of an entry permit, power existed under the former s.6 of the Act to grant a temporary permit to enable the requirements of the paragraphs to be fulfilled. The applicant, however, at no time has applied for a temporary entry permit.

2. The applicant's case has assumed that the delegate's decisions were decisions made "under an enactment" within the meaning of s.3 so as to attract the jurisdiction of the Court under s.5 of the ADJR Act. This assumption is supported by Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 341-343 and Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (Full Federal Court as yet unreported - 21 August 1991, per Gummow J. at 13-14).

3. The two applications made by the applicant were based on substantially the same facts and claims submitted by or on behalf of the applicant. His solicitors' correspondence, when making submissions, did not differentiate between the two applications. Although the applications at times followed different procedural routes in the course of their evaluation, information received on one application was used on the other and vice versa. The delegate who made the final decisions on 24 July 1990 considered each application separately, as he was obliged to do to apply the different tests which arise under paras 6A(1)(c) and 6A(1)(e) of the former Migration Act, and provided separate Statements of Reasons for each decision pursuant to a request made under s.13 of the ADJR Act. However, each decision is based on substantially the same findings of fact and process of reasoning. Grounds for challenging each decision are separately pleaded but for the most part concern findings of fact and other matters which are common to both decisions. It is convenient to deal first with the submissions of the applicant concerning the application for resident status, that being the order in which counsel have argued the case.

4. The delegate found that strong compassionate or humanitarian grounds for the grant of a resident status entry permit did not exist. This finding was based on conclusions which involved the rejection of those parts of the factual claims made by the applicant on which his claims of hardship, if he were compelled to return to Iran, rested. The main thrust of the applicant's submissions is that important factual conclusions by the delegate reflect an improper exercise of power either because the delegate took into account an irrelevant consideration (para.5(2)(a) of the ADJR Act) or failed to take into account a relevant consideration (para 5(2)(b)), or the exercise of power was so unreasonable that no reasonable person could have so exercised the power (para.5(2)(g)). The principles governing the application of the first two of these grounds of review were stated by Mason J. (as he then was), with whom Gibbs C.J. and Dawson J. agreed, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd. (1986) 162 CLR 24 at 39-42 as follows:-
   "(a) The ground of failure to take into account a relevant
   

consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: ...

(b) What factors a decision-maker is bound to consider in

making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors... are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, ... where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard:...

(c) Not every consideration that a decision-maker is bound

to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision: see, e.g., the various expressions in Baldwin and Francis Ltd. v Patents Appeal Tribunal (1959) AC 663, at p 693; Hanks v Minister of Housing and Local Government

(1963) 1 QB 999, at p 1020; Reg. v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society

(1984) QB 227, at p 260. A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision: Reg. v Bishop of London (1989) 24 QBD 213 at pp 226-227; Reg. v Rochdale Metropolitan Borough Council; Ex parte Cromer Ring Mill Ltd. (1982) 3 All ER 761, at pp 769-770.

(d) The limited role of a court reviewing the exercise of an

administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned:...

It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. ... I say 'generally' because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or have given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is 'manifestly unreasonable'. This ground of review was considered by Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v Wednesbury Corporation (1948) 1 KB 223, at pp 230, 233-234, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it. This ground is now expressed in ss.5(2)(g) and 6(2)(g) of the A.D.(J.R.) Act in these terms...

(e) The principles stated above apply to an administrative

decision made by a Minister of the Crown."

1. The limited role of the Court as stated in proposition (d) above must be recognised. In Chan v Minister for Immigration and Ethnic Affairs (supra) the High Court held that the decision of the Minister's delegate, was, on the undisputed facts of that case, so unreasonable that no reasonable person could have come to it. But again Mason C.J. pointed out that is was not the function of the Federal Court to review the delegate's decision on the merits (at p 563).

2. The limited role of the Court assumes importance in the present case as, upon analysis, I think the extensive criticisms of the delegate's reasons advanced by counsel for the applicant amount to a complaint that the delegate gave insufficient weight to the claims of the applicant and erred as a matter of fact in not accepting as truthful assertions made by him which were central to his case. But it is not the role of this Court to evaluate afresh the information which was before the delegate and form its own opinion on matters of weight and credit-worthiness.

3. The rejection by the delegate of parts of the applicant's claims was based on a perception that as time went on the applicant embellished his claims, and in so doing inconsistencies emerged. It is necessary therefore to set out at length the claims made by the applicant. The following summary is taken substantially from the first 18 paragraphs of the delegate's Statement of Reasons on the application for resident status, which counsel for the applicant accepted as an accurate summary, apart from one immaterial matter which I have corrected.

4. After the applicant deserted his ship he stayed for a few days in Wallaroo in the home of Mr and Mrs Hold. They accompanied him to the DILGEA office in Adelaide on 22 May 1989. He was interviewed there with the assistance of an interpreter. He was informed of his liability for deportation. At the end of the interview the applicant made a signed statement acknowledging that: 'I have understood that the interview has been an opportunity for me to provide information on my circumstances and other matters...' His claims on that occasion were that - he and his family lived in Isfahan; - he had qualifications and special skills as a portrait and
   

landscape painter, and as a Kung Fu/Karate instructor. He had formerly worked as a Karate instructor, but more recently as a Seaman;

- he was not happy with the situation in Iran and wanted to start a

new life in Australia. He could not practise Kung-fu in Iran as it was forbidden. He did not like the social conditions in Iran and the lack of freedom;

- he would rather die or be jailed than return to Iran. Since

childhood he had dreamed of living in Australia.

1. The Hold family submitted a letter to the Department on 25 May 1989 in support of the applicant. They stated that the applicant wanted to make a better life for his wife and two children and he wished to stay in Australia and open a Karate school, as the sport was banned in Iran. They noted that since he was 15 years old all he had ever known was Karate and he was taught by a Japanese instructor. They claimed he could not return to Iran because of the embarrassment and harassment his action in deserting his ship would cause his family. Because of his desertion, no-one would give the applicant a job if he returned to Iran.

2. On 26 June 1989, the applicant's solicitors lodged the first of several submissions on the applicant's behalf. This submission raised a new set of claims which can be summarised as follows:
   - the applicant lived in Abadan prior to the revolution where he was
   

a Karate teacher, until Karate was banned by the Khomeini regime;

- the applicant did not comply with this ban. He was approached by

members of the Revolutionary Guard and told that he could only continue with his classes if he provided free instruction to them. Because of his opposition to the regime, the applicant refused to comply and was subsequently imprisoned without trial for 3 weeks, with his permission to run classes withdrawn. The applicant was interrogated as to whether he was an anti-revolutionary, but in order to protect himself maintained his silence. The applicant was eventually released;

- 5 years ago, the applicant obtained a position with the Iranian

shipping line;

- because of his monarchist views the applicant refused to vote, and

his identity card was therefore not endorsed with the appropriate stamp. Failing to vote in the elections means that one is labelled anti-revolutionary and becomes subject to arrest, interrogation and other fundamental denials of human rights;

- before leaving Iran on his last voyage, the applicant learned that

a new identity card was being introduced. He feared that when he handed his old card over, his failure to vote would be discovered, and he would therefore be identified as a counter-revolutionary and be subject to arrest. This fear was the precipitating factor in the applicant deserting his ship;

- since his arrival in Australia, the applicant had been informed by

his parents that the Pasdarans had been looking for him and had seized a copy of his identity card. The Pasdarans had also requested his wife to report to their local headquarters, but instead she had gone into hiding;

- while the applicant was still in Iran, he had been involved in a

small group of monarchist supporters for 9-12 months. The applicant had drawn cartoons for anti-government leaflets which were photocopied and distributed around the city. The group ceased their activities when they were informed that the Pasdarans had become suspicious of them. These activities could be discovered if the applicant was returned to Iran and interrogated.

1. On 29 June 1989, the applicant's solicitors wrote a further submission which contained the following additional claims:
   - when the applicant held his Karate classes, he would at the end of
   

each class encourage his students to shout slogans in support of the Shah. He became widely known as a supporter of the Shah. The reason he was detained for 3 weeks was because the Pasdarans searched his office and found a picture of the Shah amongst his belongings. While in detention he was badly beaten and tortured, sustaining cuts to his feet, but was able to endure this without confessing to counter-revolutionary activities because of his physical fitness;

- the group to which he belonged was called 'Friends of the

Mahomad'. This group had distributed pamphlets up to 4 times a week, usually distributing about 100 copies a time. These pamphlets were distributed on more than 200 occasions. Because the applicant worked for the shipping line, he felt he could undertake these activities without coming under suspicion. Since arriving in Australia, the applicant had learned that one of the members of the group had been arrested, and that two others have gone into hiding;

- the applicant feared for the safety of his family as a result of

his activities. His father was involved in an incident at his work place prior to the revolution in 1978. His father had conflicted with Khomeini supporters by refusing to strike. As a result of the strike there was a considerable amount of violence and the applicant's father was injured;

- the applicant did not provide this additional information earlier,

primarily because he feared that if it were passed to Iran or to supporters of the Iranian government, his family would be endangered. He also did not understand the implications of the Australian migration system and felt it would be sufficient to say that he could not go back and wanted to become a resident;

- the fact that he had jumped ship would be sufficient for his life

to be endangered in the present climate were he to return to Iran.

1. On 3 July 1989, the applicant lodged his application for refugee status. Additional information was given that:
   - the applicant was a member of the informal group of supporters of
   

the Shah during 1987 for 9-12 months. They were not a formal organisation as such organisations were illegal;

- the monarchist group in which the applicant was involved had a

contact in the Pasdarans, who would inform them if they were under any suspicion;

- the applicant was never publicly identified; - the applicant completed 2 years military service from 1981 - 1983.

He no longer has any military service obligations;

- the applicant's family home in Abadan was destroyed in the war

with Iraq in 1981;

- because of his failure to vote, he and his family would be

tortured and executed.

1. On 4 July 1989, the applicant lodged his application for resident status. Attached to it were the letters of 26 and 29 June 1989 from his solicitors, letters of support from P. Hadley, M. Jabori and a number of members from the Iranian community, and two telegrams from his father and brother. The telegrams, both dated 30 June 1989, contained words to the effect of: 'do not return to Iran, your situation in Iran is not any good'.

2. On 27 July 1989, the applicant's solicitor forwarded copies of the applicant's identity card and a further statement providing details of the gaol in which he was detained, the elections he did not vote in, and the content of the pamphlets distributed by the pro-monarchist group.

3. At his interview on 28 November 1989 the applicant said
   - at his Karate/Kung-fu classes, he would take an oath to the Shah
   

and the Royal Family in front of the class;

- after he was detained (he could not recall the approximate date),

he undertook his military service in the landforce rather than at the front. He did not experience any problems during his service relating to his earlier detention, because his detention had occurred during the early days of the revolution and there was no exact filing system;

- about a year after he was discharged, he obtained a job with the

shipping line. He had to pass an exam in Islamic ideology, and was able to get a security clearance. The applicant believed that he was cleared because of the lack of exact records, and because the gaol in which he had been detained was destroyed in the war;

- the applicant's monarchist group was active for about two and a

half years, beginning in 1986. As well as distributing pamphlets, which were left in the street or put under doors, they used to deface pro-Khomeini posters and slogans at night. The group had a friend in the Komiteh who would inform them if the Pasdarans were going to be active in a particular area;

- the authorities never found out who performed such activities.

However, after the arrest of one of the members of the group, the applicant claimed the authorities must have become aware of the existence of the group.

1. At the interview the applicant was asked why he had not mentioned the later claims when he was interviewed on 22 May 1989 and why the Hold family had made no mention of them. The applicant replied that he was concerned that what he said might get back to the Iranian authorities and he feared for his family. He said that when he learnt the Australian government wished to deport him and when he felt great danger about his life, he decided to disclose what had happened to him.

2. The Department received advice from the Australian Embassy in Teheran on 24 January 1990 that:
   - Karate, to their knowledge, was never banned by Khomeini.
   

However, it was reasonable to expect that an individual club would be closed down if it were seen as a potential base for anti-revolutionary activities;

- membership of a monarchist group was a serious offence which would

attract jail, torture and in some cases even execution. However, it was extremely unlikely that family members of the accused would suffer at all unless they were also implicated;

- not voting in elections was not an offence, and only in the case

of an individual being arrested on other anti-revolutionary charges could a failure to vote be used as supporting evidence of that individual's anti-revolutionary sympathies.

1. On 13 March 1990, the applicant's solicitors forwarded the letter from Amnesty International (Amnesty) dated 25 September 1989. Amnesty was unable to confirm any of the specific claims made by the applicant but opposed his return to Iran. Since 1988, Amnesty would regard anyone who has been imprisoned for political reasons, albeit briefly, to be at risk of re-arrest. Amnesty also believed the applicant could reasonably expect to face lashings as punishment for deserting ship. It opposed such a form of punishment.

2. On 9 May 1990 the Department wrote to the applicant's solicitors regarding perceived credibility problems.

3. On 18 May 1990 the applicant's solicitors replied, saying that:
   - at the interview on 22 May 1989 the applicant was only willing to
   

make some generalised comments about his fear of returning to Iran, as opposed to providing details of his anti-revolutionary activities, because he believed that the generalised comments would not place him or his family in grave danger. He was also concerned that the Iranian interpreter, whose role and duty of confidence was not explained, could pass information back to Iran;

- the applicant was not a Karate instructor but in fact taught

Kung-fu. Both Kung-fu and boxing were banned after the revolution, the former being banned after its founder in Iran was wounded and fled the country after the holding of the first post-Shah election. The inaccuracy in regard to his martial arts was due to the haste in which the submission from the solicitor was prepared;

- the applicant was involved with the monarchist group for two and a

half years. Due to the haste in which the submissions were prepared, the applicant thought that he had been asked how long it had been since he was involved in the group, which was 9 or 12 months ago. This led to the inaccuracy in relation to the length of time the applicant was involved in the monarchist group;

- the applicant was apprehensive about handing in his old ID card

because he had not voted. He feared he would come under suspicion and that upon possible interrogation, his other political activities would be revealed;

- the applicant denied that his claims subsequent to the interview

of 22 May 1989 had been fabricated or elaborated. The applicant was of the view that inability to verify or support claims with evidence should not be regarded as evidence of fabrication. The fact that he was in a smaller political group and that his records were unavailable probably lent him protection. The applicant provided further details about the gaol in Abadan and the informer from the Komiteh;

- a telegram dated 9 May 1990 from an unidentified source in Iran

advised that another member of the monarchist group named Rasta Hossein had been "caught". The telegrams were sent by his family and were said to be genuine;

- the applicant claimed he did see active service while in the army,

in that he was twice posted to areas which were regularly under bombardment. The applicant denied that he was given privileged positions in the army;

- there was no reason for the applicant to come to the attention of

the authorities when he obtained his passport with the shipping line because passports for seamen were processed in block with no interview and he had no criminal record.

1. On 15 July 1990 further advice was received from the Australian Embassy in Teheran to the effect that Kung-fu and other martial arts were banned for a time after the revolution but have since been legalised.

2. On this information the delegate made his decision. His reasons for decision are expressed in the following paragraphs quoted from the Statement of Reasons:
   

"22 I assessed that the applicant may face a civil penalty for ship desertion if he was returned to Iran. This penalty may include lashings. However, while such a penalty may raise feelings of compassion, I did not consider that the possibility that he may be lashed in accordance with Iranian law amounted to a violation of his human rights sufficient to establish strong humanitarian or compassionate grounds under the Act. 23 There was some confusion in the claims as to whether the applicant claimed to practise Karate or Kung-fu (or both) and whether he claimed either (or both) were banned. I did not accept the submission of the applicant's solicitor of 18 May 1990 that the accurate claim was that the applicant was not a Karate instructor. At the earliest interview, the applicant had claimed to be a Karate instructor (as well as Kung-fu) and this was confirmed by the Hold family with whom he was staying. They also stated that he was taught Karate by a Japanese instructor. At the DORS interview, the applicant referred to both Karate and Kung-fu, and specifically to Kung-fu being banned. In these circumstances I had to look at the situation in Iran in relation to both Kung-fu and Karate. The Department received advice from the Australian Embassy in Teheran that to its knowledge, Karate was not and had never been banned in Iran, although an individual club could be closed down if it were seen as a base for anti-revolutionary activities. I therefore did not accept that the applicant would experience hardship because he could not practise Karate or simply for practising Karate in Iran. Moreover, further advice from the Australian Embassy in Teheran stated that while Kung-fu and other martial arts were banned for a time after the revolution, they have since been legalised. In all circumstances, I did not consider that the claims made about the ability to practise (or the legal status of) martial arts in Iran were such as to give rise to or support a claim for strong compassionate or humanitarian grounds; rather the issue was whether the applicant had an anti-revolutionary profile. 24 The applicant claimed that he was identified by the Iranian authorities as a monarchist after a picture of the Shah was found in his belongings. I noted, however, that after his alleged 3 week detention the applicant had no further trouble with the authorities because of this incident. I viewed the alleged detention as an isolated event which had no repercussions for the applicant. I also made findings about the credibility of the second set of claims, which I discuss below. I also viewed the incident concerning the applicant's father as an isolated event which did not have significance for the applicant's case. I did not, however, accept or rely on the submission-writer's view in the Assessment Report dated 18 July 1990 that the military posting the applicant had in 1981 was 'favourable'. Rather I accepted the submission of the applicant denying that he was given a privileged position in the Army. I did not find the issue of the posting significant. I did, however, find it significant that after his discharge the applicant was able to secure a job with the Iranian shipping line which required him to pass examinations and obtain a security clearance from the State. The applicant claimed that this was only possible because in the early days of the revolution there was no organised filing system, and because the gaol in which he was held had been bombed. However, I considered that despite this claim his favourable treatment by the authorities (in relation to his obtaining and holding down a job with the shipping line) indicated that they had no interest in him as a counter-revolutionary.

25 The applicant claimed that he was a member of a small informal monarchist group which ceased its activities because the authorities had become suspicious. I considered there were a number of problems with this account which led me to the conclusion that the applicant had fabricated this claim: - there was an inconsistency in the material put forward by the applicant as to the length of time the group undertook activities (i.e. 9 - 12 months in 1987, compared with two and a half years from 1986). I did not consider that the discrepancy was explained by the solicitor's claim that the applicant had misinterpreted the question put to him and said that it had been 9 - 12 months since he had been involved in the group when the submission of 26 June 1989 was prepared by the solicitor. I took the view that this assessment was supported by the fact that the applicant stated quite clearly in his refugee application that the group operated for 9 - 12 months in 1987. The applicant also had the opportunity in his refugee application and in the submission of 29 June 1989 to correct any inaccuracy but had not done so;

- I found it difficult to accept that such a group could distribute anti-government pamphlets on over two hundred occasions for a considerable period of time without attracting greater attention from the authorities than that claimed by the applicant. I assessed this claim was either greatly exaggerated or fabricated; - I also questioned the apparent lack of any action on the part of the authorities at the time the group allegedly came under suspicion. It appeared that there was a considerable period of time between when the group came under suspicion and when the applicant claimed he learned that one member had been arrested and two had gone into hiding after he arrived in Australia. The applicant, in addition, claimed that a second friend had been arrested. A telegram which was sent to the applicant on 9 May 1990 from (sic) Shahin Torabi was submitted as evidence supporting this claim. I considered that the telegram that was received on 9 May 1990 and the earlier telegrams were vague and/or self-serving and could not be relied on in support of the claims. I also considered that it was not possible to determine the reason for the alleged arrests. I assessed that the considerable period of non-action between when the group allegedly came under suspicion and when the arrests were allegedly made was inconsistent with Iranian security practices and concluded that the authorities did not have the interest in the applicant and the alleged group as was claimed. In light of this and the substantial credibility problems I had with the entirety of the applicant's claims (which I set out below), I concluded that the applicant's claim that since his departure his friends have been arrested for political reasons associated with membership of the 'Friends of the Mahomad' were not true; - I also noted that although the monarchist group was allegedly under suspicion, the applicant was nevertheless allowed to continue working in the shipping line, and was issued with a new seaman's identity book on 2 February 1989. I concluded that this identity book, although issued within a group, would not have been issued if the applicant had been under suspicion of anti-government activities, and took the view that this supported my earlier assessment in regard to extreme doubts over the applicant's claims. I considered that the claim relating to the Pasdarans' visits to the applicant's family may be explained by his desertion; - I also considered that the applicant's claims related to his alleged involvement in the monarchist group have become more elaborate with time. I did not accept the applicant's claim that he was suspected as being pro-monarchist by the Iranian authorities and would therefore face hardship if returned to Iran. 26 The applicant initially claimed that he would face arrest for not having voted in Iranian elections. However, I took into account DFAT advice that failure to vote in elections was not an offence in Iran, and that not voting would only be seen as evidence of anti-revolutionary sympathies where an individual had already been arrested on anti-revolutionary charges. Because I did not consider that the applicant had an anti-revolutionary profile in Iran, I did not believe that he would face hardship in Iran over his failure to vote. I also noted when examining the submission of 18 May 1990 that the applicant had altered the thrust of this claim following DILGEA's presentation of DFAT advice to him. The applicant subsequently claimed that he would be arrested not because he had not voted but because this would draw the attention of the authorities to him and his other activities might be revealed if he was interrogated. I considered this was another example of the applicant attempting to embellish and/or fabricate claims since his arrival in Australia, and did not feel that the matters put forward on 18 May 1990 had changed my assessment. 27 The applicant claimed that because he was under government suspicion, his family was also at risk from the Iranian authorities. However, I did not believe that the applicant was under suspicion for counter-revolutionary activities. Therefore, I did not accept that the family was at risk. While I accepted that the applicant's family may have been approached by the authorities in regard to his ship desertion, I did not consider that this would cause any consequences for the family that would give rise to or support a claim of strong compassionate or humanitarian grounds. 28 I also had strong reservations about the applicant's later claims and was of the view there were credibility problems arising from the way in which he had presented two sets of claims (in such circumstances, I did not find the submission from Amnesty International that former political prisoners were liable to re-arrest to be of assistance). When interviewed on 22 May 1989, the applicant had not mentioned the claims he later made about his alleged political activities and incidents in Iran. The applicant subsequently stated by submission and at the DORS interview that this was primarily because he feared that the information could be passed on to the Iranian authorities, thus endangering his family, and that he only spoke out when he knew he was facing deportation. However, I took into account that the applicant was informed that he was facing deportation at the interview of 22 May 1989. I noted also that at this interview the applicant had stated that he was not happy with the situation in Iran and did not like social conditions there, and that there was a lack of freedom in Iran. I took the view that these statements appear to be at odds with the fear he later expressed of prejudicial information reaching the Iranian authorities. I did not feel that the matters put forward on 18 May 1990 were sufficient to change my assessment.

29 While I noted his concern in relation to the interpreter at the interview of 22 May 1989, I also noted that this was the first time this specific concern had been raised: it was not raised at the interview itself, in the solicitors submissions of June 1989 nor at the DORS interview. I therefore gave less weight to this factor. I gave greater weight to the fact that the applicant had failed to mention any concrete anti-revolutionary views at the interview of 22 May 1990 (sic - 1989). I therefore considered that the applicant had enhanced his claims since his arrival in Australia, and that his true claims and his motive in deserting ship was related to his desire to improve his lifestyle rather than to escape government repression in Iran.

30 On the evidence before me I was of the opinion that the applicant had not established that he had strong compassionate or humanitarian grounds for the grant of resident status. The applicant had failed to satisfy the legal pre-conditions under Section 6A(1)e. I therefore decided to refuse the grant of resident status to him."

1. The extensive grounds pleaded in the application for an order of review attack each of the paragraphs of the delegate's reasons separately. I shall discuss the applicant's contentions in the same way, but in the end the question for decision is not simply whether the delegate erred in one or more of the conclusions reached by him as steps along the way in his reasoning, but whether his ultimate determination that the applicant had not established that he had strong compassionate or humanitarian grounds for the grant of resident status (or, in the other application, that the applicant had not established that he had a well founded fear of persecution within the terms of the definition of refugee in the Convention relating to the Status of Refugees) involves an improper exercise of power because the delegate arrived at the ultimate determination by taking an irrelevant consideration into account or by failing to take a relevant consideration into account, or that the determination was so unreasonable that no reasonable person could have made it: Australian Broadcasting Tribunal v Bond and Others (supra) at 337-339 per Mason C.J. (with whom Brennan and Deane JJ. agreed).
   Paragraph 22 of the Statement of Reasons

2. The question of penalty which the applicant "may" face if he were returned to Iran for ship desertion stands as a discrete issue in the sense that it requires separate consideration even if the credibility of the balance of the applicant's claims is wholly discounted. That he deserted ship was not in question.

3. Even on the narrow issue of punishment for ship desertion alone, it is contended that the conclusion that lashing of the applicant in accordance with Iranian law would not amount to a violation of his human rights sufficient to establish strong humanitarian or compassionate grounds was so unreasonable that no reasonable person could have so determined.

4. The information before the delegate as to the range of penalties, or likely penalty, which the applicant would face for ship desertion was vague in the extreme. The applicant, by his solicitor's letter dated 29 June 1989 expressed a fear that in 1989 the mere fact that he deserted ship would be sufficient to endanger his life. But that fear was not supported by any fact or material to show that it was reasonably grounded. It would seem that as the delegate makes no reference to it in paragraph 22, this assertion of fear was discounted, presumably as one not genuinely held by the applicant. It is not a fear that he expressed in either of his interviews with officers of DILGEA, and it gained no support from the letter from Amnesty International. It was not unreasonable for the delegate to disregard the assertion of fear of danger to life from punishment for deserting ship. Before this Court the applicant did not contend that his life would be endangered for that reason alone.

5. The contention of the applicant that he could expect to face lashings as punishment for deserting ship was based on the information from Amnesty. The delegate has accepted that as a possibility. However, the further contention made before this Court that the degree of compassion which the prospect of lashing should attract was magnified by the consideration that it would be inflicted without a proper trial and without due process of the local law, finds no basis in the information supplied by Amnesty. On the contrary Amnesty International refers to "floggings as a judicial punishment".

6. The delegate in his reasons does not express his understanding of the expression "strong compassionate or humanitarian grounds". In Damouni and Anor v Minister for Immigration, Local Government and Ethnic Affairs (1989) 87 ALR 97 at 102-103 French J. discussed the meaning of this expression in para 6A(1)(e). His Honour observed:-
   

"There is little to be gained by trying to draw out distinctions between 'compassionate' grounds on the one hand and 'humanitarian' grounds on the other. The term is a collocation which ultimately invites a normative judgment. Common to many if not all the circumstances it addresses is the element of hardship - actual or prospective - in its various manifestations including physical, emotional and economic harm. The word 'strong' suggests that not all hardship will give rise to the compassionate or humanitarian grounds which may enliven the discretion to grant an entry permit. It demands a judgment that the relevant hardship be substantial. It may be actual, to be alleviated by the grant of an entry permit or prospective in the event that such grant is withheld. There is no requirement that, if hardship be the issue, it must be suffered by the applicant for the permit. The breadth of the term 'strong compassionate or humanitarian grounds' necessarily extends to a consideration of the impact on other parties of a refusal to grant a permit. The consequences of a decision for the family and other persons whose fortunes are closely linked to those of the applicant lie within its purview. And the fact that many other persons may be in a like predicament to that which faces or threatens the applicant, is not, in my opinion, sufficient to take the case out of the class of those eligible for consideration under the paragraph. The word 'strong' does not impose a requirement that the grounds must be special or peculiar to the applicant, although there may be circumstances where that is a relevant consideration."

1. The fact that lashings may be the regular penalty prescribed by law in the country to which the applicant would be returned if he were not granted an entry permit, does not make his predicament ineligible for consideration as one giving rise to "strong compassionate or humanitarian grounds". The "normative judgment" which is invited by that expression must be made according to Australian municipal law, and values and standards that prevail in the Australian community. On the other hand, the fact that the form of punishment in another country is one that is traditional in the legal and religious culture of that and other countries is a matter to be taken into account. The context in which physical force or deprivation of liberty is inflicted is an important consideration. Imprisonment inflicted without trial as religious or political persecution would excite strong feelings of compassion, whereas imprisonment imposed according to law for a universally recognised offence is unlikely to do the same.

2. Flogging as a form of punishment imposed by law is no longer accepted in this country and has been removed from the statute books. It is now viewed as unduly harsh and degrading. The prospect that the applicant might be flogged is undoubtedly a matter for compassion, as the delegate recognised. But to come within para 6A(1)(e) the compassionate or humanitarian grounds must be "strong". As the punishment, if it were inflicted, would be in accordance with Iranian law for an offence which undoubtedly occurred I do not think that the conclusion reached by the delegate can be characterised as so unreasonable that no reasonable person would have made that determination. On the footing that the only punishment likely to be inflicted on the applicant if he were returned to Iran would be punishment for deserting ship, the conclusion reached was one reasonably open to the delegate.

3. Paragraph 22 of the reasons is further challenged on the ground that the delegate failed to take into account two relevant considerations. The first is the advice from Amnesty that it is aware of cases where flogging, as a judicial punishment, has caused lasting physical and psychological injury to the victim. The recital of information considered by the delegate referred to the letter from Amnesty. There is no reason to think that the delegate overlooked or failed to take into account what Amnesty said. The second consideration is advice received by the delegate that membership of a monarchist group was a serious offence which could attract gaol, torture or even execution. This submission raises the wider aspects of the applicant's claims. If he were to face punishment not just for deserting ship but for anti-revolutionary activity as well, the picture would be entirely different. But when the reasons for the delegate's determination are read in their entirety I think it is clear that he did not overlook this fact. Paragraph 22 should be understood as referring to the consequences of deserting ship, without more. The question of whether the applicant had established an anti-revolutionary profile which was likely to attract additional hardship if he were to return to Iran is considered by the delegate in succeeding paragraphs of the reasons.
   Paragraph 23

4. The conclusion that the applicant would not suffer hardship because he could not practice Karate or would suffer hardship simply for practising Karate is challenged as an improper exercise of power. It is unnecessary to set out at length the challenges made to this conclusion. The delegate correctly identified that there had been confusion as to whether the applicant claimed to practice Kung Fu or Karate, and I can detect no discrepancy between the information before the delegate and his summation of that information. The delegate has taken the prudent course of looking at the situation in relation to both Kung Fu and Karate. The applicant's complaint concerns hardship in relation to Karate, but the information available to the delegate was that Karate was not banned in Iran. In the absence of some additional consideration arising from the applicant's wider claims concerning his monarchist views or anti-revolutionary activities, there was no material before the delegate to suggest hardship by reason of an inability to pursue Karate. Furthermore, in assessing hardship through being unable to pursue a particular following, it is material to have regard to other avenues of employment open to the applicant. It was not suggested in the applicant's claims that other avenues of employment would not be open if it were not for his asserted anti-revolutionary activities. At the end of paragraph 23 the delegate clearly stated the central issue which required determination: "rather the issue was whether the applicant had an anti-revolutionary profile".

5. This statement of the central issue is challenged as involving an error of law because it fails to refer to the central issue as being one of hardship. The delegate has fallen into no such error. On a fair reading of the reasons it is plain that the delegate was alive to the probability that the applicant would suffer substantial hardship such that he would come within para 6A(1)(e) of the former Migration Act if the anti-revolutionary profile which he asserted were to be believed. If he had that profile, then he would have established his eligibility for a resident status entry permit. Difficulties with employment and additional punishment for deserting ship would then become likely, and merge into the total picture of hardship. Absent the anti-revolutionary profile, it was clearly an open and reasonable view for the delegate to form that the applicant would suffer no substantial hardship giving rise to "strong compassionate or humanitarian grounds".
   Paragraph 24

6. First it is complained that the conclusion that the applicant was not an anti-revolutionary or counter-revolutionary is based on the existence of a fact which did not exist, namely that the applicant was "identified" as a monarchist after a picture of the Shah was found in his possession. The applicant's claim was that he was then "suspected", not that he was positively identified as a monarchist, it being his case that because he was never truly identified he was released from prison. His expressed fear was that on his return to Iran he would be so identified. The choice of the word "identified" is unfortunate, but when the reasons are read as a whole, and fairly without a critical eye attuned for error, I do not think the ultimate conclusion of the delegate is dependent on any misunderstanding of the claims by the applicant. The assertions of the applicant about being suspected of being a monarchist shortly after the revolution, formed part of the "second set of claims" made by the applicant, the veracity of which was doubted. Nevertheless, on one reading of paragraph 24, the delegate has given the applicant the benefit of the doubt on his assertions about his arrest and about the incident concerning his father, hence the conclusion that these were to be treated as isolated events which in the passage of time had lost any significance. The conclusion that whatever may have happened in those early days, the authorities, at least from 1985, had no interest in the applicant as a counter revolutionary, was one to which the delegate could reasonably come on the material before him.
   Paragraphs 25, 26, 27, 28 and 29

7. It is convenient to take these paragraphs together as they express the delegate's reasons for rejecting the applicant's "second set of claims" on credibility grounds.

8. The conclusion that the applicant fabricated the claim that he belonged, whilst engaged as a seaman, to an informal monarchist group, is challenged as an improper exercise of power and on other grounds.

9. The functions of the delegate include that of determining the issue of credibility. In the present case the absence of any suggestion of anti-revolutionary conduct on the applicant's part to DILGEA on 22 May 1989, and, apparently, to the Hold family whilst he was staying with them for a week or so before that date, gave rise to serious questions of credibility which had to be resolved.

10. The grounds of challenge to these paragraphs in the application for an order of review clothe the complaints made by the applicant with the appearance of being matters falling within the grounds for challenge under the ADJR Act, but in substance they assert not legal or procedural error, but factual error on the merits. The grounds reflect a general dissatisfaction by the applicant with the view of the facts and his credibility taken by the delegate.

11. The weighting which the delegate gave to information before him and to explanations offered by the applicant for inconsistencies in his claims, was a matter for the delegate. It is not within the power of this Court to re-assess the material and to form its own view as to the facts.

12. I reject the submission that the delegate failed to consider the explanations given by the applicant for presenting two sets of claims, and acted unreasonably in continuing to place reliance on the first set of claims. The weight, if any, which the delegate gave to the explanation was a matter for him, and it is clear that he did give consideration to the explanations: see paragraphs 28 and 29. The conclusions which he reached on the credibility of the applicant's second set of claims, and in turn his conclusion that the applicants true claims, and motive in deserting ship, were related to his desire to improve his lifestyle rather than to escape government repression in Iran were open on material before the delegate and were not so unreasonable that no reasonable person could have so concluded.

13. There is however one aspect of the reasons of the delegate in which the question of credibility is discussed where the delegate would appear to have misapprehended the case being asserted by the "second set of claims". In paragraph 25, the delegate expressed conclusions that "the authorities did not have the interest in the applicant and the alleged (monarchist) group as was claimed" because of the considerable period of non-action between when the group allegedly came under suspicion and when the applicant's friends were allegedly arrested; and, referring to the seaman's identity book issued 2 February 1989, that "this identity book... would not have been issued if the applicant had been under suspicion ...". Counsel for the applicant points out that it was his claim that he had not been "identified" or suspected, at least at the time when he last left Iran in February 1989. His claim was that the later arrest of his friends raised a possibility that he had since been identified as an individual involved in the group, or alternatively could be so identified if he returned and were interrogated. It is submitted that this misapprehension of fact invalidates the process of reasoning by the delegate which lead to the adverse conclusion on the applicant's credit-worthiness.

14. The statements which reflect this apparent misapprehension relate to two only of many problems which the delegate perceived to exist about the applicant's second set of claims. Furthermore, the facts remain that there was a notable delay between the time when the authorities allegedly became suspicious of the activities of the group, and the alleged arrest of the applicant's friends, and that the grant of the seaman's identity book does support the view that at that time the applicant was not under suspicion. The misapprehension alleged was not fundamental to the conclusion that the applicant's second set of claims was not truthful and does not vitiate the ultimate conclusion that the applicant had not established strong compassionate or humanitarian grounds.

15. In my opinion the application for an order of review of the determination to refuse the grant of resident status should be dismissed.

16. I turn now to the application for an order of review directed to the refusal of the grant of refugee status. I have earlier recorded that the determination on this application was based on the same material as the determination relating to resident status, and was made by the same delegate of the Minister on the same date. The process of reasoning and the conclusions reached by the delegate as to the veracity of the applicant's "second set of claims" are in substance the same. In the separate Statement of Reasons given for this determination, after summarising the material provided by the applicant, and received from other sources, the delegate referred to the definition of a "refugee" contained in Article 1A of the United Nations 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees:
    

"... the term 'refugee' shall apply to any person who: ...

(2) ...owing to 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..."

The delegate also referred to Chan v Minister for Immigration and Ethnic Affairs, supra, which held that the appropriate test of a fear of persecution being "well-founded" is whether there is a real (that is, a substantial) chance that the refugee will be persecuted if returned to his country of nationality.

1. It is not suggested that the delegate mis-stated the relevant tests.

2. The delegate did not accept the claims of anti-revolutionary activities, and, as with the other application, was of the opinion that the applicant's motives in leaving his ship were related to his desire to improve the position of himself and his family as stated in the initial interview with an officer of DILGEA on 22 May 1989. The delegate discussed the dissenting view of the representative of the Attorney-General's Department on the DORS Committee. He concluded that the applicant did not have a well founded fear of persecution, and determined that he was not a refugee within the meaning of the Convention and Protocol.

3. The delegate again referred to the possibility that the applicant would face "a civil penalty" for ship desertion. However, upon the rejection of the applicant's second set of claims, there was no evidence that this penalty would be other than the regular penalty under Iranian law for deserting ship, and no question of persecution for a convention reason arose for consideration.

4. The fate of the application turned on the rejection of the applicant's second set of claims. As with the other application, the credit-worthiness of the applicant's assertions was of critical importance, and it was the proper function of the delegate to determine whether those assertions were to be believed. The challenges raised to the delegate's process of reasoning leading to that conclusion are similar to those made about the decision on the other application, as are my reasons for rejecting them. I propose only to refer to three additional matters not raised by the grounds of challenge to the other application.

5. The first is raised in paras CII 2.2 and 2.3 of the grounds of the application. Although this submission is made expressly in relation to the application for refugee status, by its terms it would also apply to the application for residency status. It is submitted that the delegate's decision to give weight to the applicant's failure to mention his anti-revolutionary views at the first interview on 22 May 1989 was an improper exercise of power as the delegate failed to take into account the following relevant consideration:
   

"...that the questions directed at the applicant at the interview of 22 May 1989 were general and not designed to elicit information about the requirements for the grant of refugee status or resident status on strong compassionate or humanitarian grounds."

and took into account an irrelevant consideration, namely the lack of detail given at the first interview. It is also submitted that the delegate's decision to disbelieve the applicant's second set of claims involved a breach of natural justice in that:

"... although DILGEA knew the tests for the grant of refugee status (on strong compassionate or humanitarian grounds), no specific questions relating to these two tests were directed at the applicant at the interview."

1. In my opinion these submissions should be rejected. There is no reason to believe that the delegate misapprehended the purpose of the questions asked at the first interview or improperly used the answers that were given. The purpose of the interview was general. At that time officers of DILGEA were seeking to ascertain information about the personal circumstances of the applicant. They had no reason to suspect his circumstances were such as to open the possibility that he might be eligible to be granted refugee or resident status under paras 6A(1)(c) or (e) of the former Act, unless he, or someone on his behalf, told them. He did not do so on 22 May 1989 and there is no suggestion that anyone else told them. The Hold family, it would appear, were also unaware of the applicant's second set of claims at that time.

2. Towards the end of the interview the applicant was asked if he would depart voluntarily from Australia. He said he would not. He was asked what matters he wished to be put to the decision-maker to allow him to remain in Australia. He was given the opportunity to raise his second set of claims but did not do so. In the absence of anything said by the applicant to raise the possibility that he might be eligible for an entry permit under paras 6A(1)(c) or (e), there was nothing unfair in the procedure followed. There was no breach of natural justice.

3. The next matter concerns the dissenting opinion of the representative of the Attorney-General's Department on the DORS Committee. The representative dissented from the final recommendation of the Committee on the ground that in his opinion the letter from the applicant's solicitors dated 18 May 1990 provided a reasonably plausible explanation for most of the matters which had earlier caused the Committee difficulty with the veracity of the applicant's second set of claims. The representative considered that whilst some aspects of the case remained puzzling the benefit of the doubt should be given to the applicant. The delegate expressed his disagreement with that view and reiterated that he considered the applicant's credibility to be a matter of grave concern. It is contended on the applicant's behalf that the rejection of the view that the letter of 18 May 1990 provided plausible explanations for most of the earlier matters for concern constituted an abuse of power as no reasons were given for disagreeing with that view. The assertion that no reasons were given is wrong as a matter of fact. The delegate elsewhere in his reasons dealt with matters raised by the letter of 18 May 1990 in detail. It is also contended that the expression of opinion that the applicant's credibility was "of grave concern" was an improper exercise of power as the delegate failed to take all relevant considerations into account, namely the applicant's second set of claims. In light of the findings on credibility on those claims, there is no substance in this submission.

4. The third matter concerns the letter from Amnesty International. The delegate in his reasons said:-
   

"I also noted that A-G's gave weight to the assessment of Amnesty International (AI) that former political prisoners were liable to re-arrest. I did not accord such weight to the AI submission. AI did not have before it all of the material that was before the Department that cast doubt on the credibility of the Applicant's later claims. The AI letter was therefore premised on claims that had credibility problems. AI was also not able to confirm any of the details of the case. In conclusion, I assessed that Amnesty International was not in a position to examine the Applicant's claims on their individual merits as was done by the DORS Committee and myself."

1. It was for the delegate to decide what weight he would accord to the letter from Amnesty International. He has given it consideration and his determination to give it little or no weight is not one with which the Court can interfere unless this led to an ultimate conclusion which was so unreasonable that no reasonable person could have made it: Minister for Aboriginal Affairs v Peko-Wallsend Ltd. supra.

2. The reasons given by the delegate for discounting the weight to be given to the Amnesty International letter were plausible and open on the whole of the material. The ultimate conclusion that the applicant did not have a well-founded fear of persecution if he returned to Iran, and was not a refugee within the meaning of the Convention and the Protocol was an open one which, in my opinion, cannot be characterised as unreasonable on the material before the decision-maker.

3. In my opinion the application for an order of review of the determination that the applicant was not a refugee should also be dismissed.