S.n. v Minister for Immigration and Multicultural Affairs

[1997] FCA 869

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - review of decision of the Refugee Review Tribunal - whether Tribunal erred in law - persecution for the reason of association with political dissidents - whether sufficient evidence to demonstrate a change in circumstances where applicant may have been persecuted for Convention reasons in the past such that applicant could no longer be said to have a “well-founded fear”

Migration Act 1958 (Cth), s 176(1)(e), s 420

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, applied
Yesus v Minister for Immigration and Ethnic Affairs (unreported, Madgwick J, 9 July 1996), applied

S. N. v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 536 of 1996

Madgwick J
Sydney
1 September 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)  NG 536 of 1996
)
GENERAL DIVISION	)

BETWEEN:             

S. N.
Applicant

  AND:             

  AND:

Minister for Immigration and Ethnic Affairs
First Respondent

J Vrachnas
Member constituting the Refugee Review Tribunal
Second Respondent

JUDGE(S):	MADGWICK J
PLACE:	SYDNEY
DATED:	1 SEPTEMBER 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application is dismissed.

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)   NG 536 of 1996
)
GENERAL DIVISION	)

BETWEEN:             

S. N.
Applicant

  AND:  

  AND:  

Minister for Immigration and Ethnic Affairs
First Respondent

J Vrachnas
Member constituting the Refugee Review Tribunal
Second Respondent

JUDGE(S):	MADGWICK J
PLACE:	SYDNEY
DATED:	1 SEPTEMBER 1997

REASONS FOR JUDGMENT

HIS HONOUR:  The applicant, who is an Iranian national, arrived in Australia on 12 January 1995, and applied for refugee status on 27 January 1995.  For reasons given on 7 November 1995, the Minister’s delegate refused his application for a protection visa on the ground that he did not meet the criteria of a “refugee” and therefore was not a person to whom Australian had protection obligations under the 1951 Convention related to the Status of Refugees (“the Convention”).

According to the Convention, 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unable to return to it.”

The applicant lodged an application for review with the Refugee Review Tribunal (“the Tribunal”) on 16 November 1995, which subsequently affirmed the decision of the delegate for the reasons given on 4 June 1996. This is an application for judicial review of the Tribunal’s decision, on the grounds that the Tribunal incorrectly interpreted the definition of “refugee” and thus erred in law, making the decision judicially-reviewable under s 476(1)(e) of the Migration Act 1958 (Cth) (“the Act”).

The applicant’s status

The applicant claims that when he was about sixteen, he became acquainted with a political organisation involved in activities against the recently installed Islamic Republic.  This rebel group was sympathetic to the Mojahedin, in which the applicant’s sister was actively involved.

In 1989, the sister of an anti-government activist friend who had been arrested by the authorities, hid in the applicant’s home for a short time before escaping to another city.  Around the same time,  the applicant’s sister heard that she was also wanted by an organ of the Iranian government known as the Pasdaran (also known as the Revolutionary Guard) for her involvement in the Mojahedin, and went into hiding.  During this time, the Pasdaran regularly visited the applicant’s home and searched the premises.  The applicant claimed that, fortunately, the Pasdaran did not find some subversive material that had been left behind by his sister, and he gradually destroyed it.

In October 1990 the applicant made arrangements for his sister’s escape to Turkey, and the applicant travelled with her to Turkey in order to pay bribes which were necessary and to arrange for false papers so that she could seek asylum in Germany.  The applicant claims that, on his return to Iran, he was questioned about the details of his trip but that he did not disclose anything.

The authorities began regularly visiting the applicant and his family to ask about his sister’s whereabouts.  On one occasion, the authorities threatened to assault the applicant’s mother if she did not disclose information about her daughter and her friends, and when the applicant intervened he was arrested by the Revolutionary Guard. During the first few days of his detention, the applicant was beaten, put in solitary confinement and interrogated about his sister’s escape and about the activities of her friends.  About a week later he was charged and convicted with a religious offence, and sentenced to three months imprisonment.  On his release the applicant was forced to sign a document pledging his faith to the Islamic Republic, which he claims also required him to inform on his sister’s friends.

After his release, the applicant could not find a job in the public sector because, the applicant claims, of his political record.  The applicant did obtain some work in the private sector, but claims that the Pasdaran would come to the workplace to question him about his sister and, when they saw this, his employers would dismiss him. The applicant then moved to another city in search of employment.  He stated that, although the Pasdaran knew of his whereabouts, they left him alone so that they could monitor his movements and contacts.  He was able to visit his mother every week or fortnight without further harassment.

The applicant said that he became friends with a political activist, although the applicant claims that he did not know what his friend did, other than participate in discussions opposing the regime.  This friend was arrested in September 1994, two months after being involved in rioting.  The applicant said that he believed that his friend had been followed by the Pasdaran and that they would have known that the applicant was acquainted with him.  The applicant claims he felt in danger, and went into hiding so that he could make arrangements to leave Iran. He further claimed that he paid an agent $6,000 to obtain a visa for him and that he paid bribes in order to bypass the airport security procedures, although this was done through an agent and the applicant claims not to have known how it was done.

After his departure on 10 January 1995, the applicant contacted his family and was told that the authorities had detained and threatened his brother in order to obtain information about the applicant’s whereabouts.  The applicant claimed that his brother informed him that he was now “blacklisted” and should not return to Iran, and that the authorities had told his brother that they knew the applicant was associated with known activists and would be arrested when he returned.  A friend of the applicant’s sister-in-law also recently visited Australia and gave him a message from his brother not to return.

The applicant claimed that, since he has a history of activities linked to the Mojahedin, the authorities would perceive his involvement to be an act of rebellion, and he fears he would be a target of retribution even though he is guilty only by association for being a relative of a person wanted by the authorities and by being associated with a known activist. 

The Tribunal’s conclusions

Relevantly to this review, the Tribunal made the following findings in relation to the applicant’s claims:

“While [the applicant] stated that he was involved to a certain extent with opposition groups prior to his sister’s departure, he made no claim that he was ever harassed on account of this involvement and he told the Tribunal that he returned to Iran after he had been to Turkey because he was not in fear of encountering any difficulties at that stage.  His evidence about visits by Pasdaran has varied from time to time, and it was only at the hearing that he stated there had been visits during the period his sister was hiding outside Teheran.  He initially told the Tribunal that these visits were the reason his sister went into hiding, but later he stated that she fled after a warning from colleagues.  He also told the Tribunal that the Pasdaran searched his house several times while his sister was in hiding, but they failed to find any of the subversive literature she had left for him to read.  The Tribunal finds it odd that he would retain materials that may lead to persecution if they were discovered.  He had consistently stated that he was not committed to dissident activities, although he was a sympathiser of Mojahedin, and it was apparent that he was constantly aware that the knowledge that the Pasdaran may visit and search on account of his sister’s activities.  It is also odd that he still retained subversive materials even after the claimed initial visit of Pasdaran.  This is apparent in his statement that he destroyed such materials prior to his trip to Turkey.

In the circumstances, the Tribunal concludes that the Pasdaran did not visit the Applicant’s house during the time his sister was hiding prior to her departure for Turkey.  Even if they did, they showed no interest in the Applicant, did not harm him and only enquired after his sister.

The Tribunal accepts that the Applicant was questioned after his return from Turkey.  He agreed with the Tribunal that this was a routine occurrence for Iranian nationals returning from abroad.  He also stated that the Pasdaran visited on this occasion because they realised his sister was not there.  This claim, however, is at odds with the claim that she had been in hiding for eighteen months.  In any event, the Applicant did not disclose any information that put him at risk and the Pasdaran did nothing to him, apart from question him about his trip to Turkey and the whereabouts of his sister.

The Tribunal accepts that the Pasdaran paid regular visits to the Applicant during 1990-91, and questioned he and his mother about his sister and her friends.  It also accepts that he was detained when he intervened because they threatened his mother, and that he was sentenced to three months imprisonment for a breach of the religious code.  There is no reason to doubt that he was seriously mistreated during his detention, particularly during the pre-trial period when the authorities sought to obtain some sort of confession or information.

The Applicant was released in early 1992 after he agreed to act as an informer.  It appears that he never gave any information, despite being periodically questioned by the Pasdaran.  He told the Tribunal that he was refused employment in the civil service because of his political/religious record.  However, he was able to obtain employment commensurate with his qualifications in the private sector and this was known to the Pasdaran.  There is no evidence to suggest that the Pasdaran sought to prevent the Applicant working with private businesses and he stated that he was able to work for some two years in the new town without being harassed or questioned by the authorities, notwithstanding they knew where he was.  The Applicant said he had never had a job in the public sector and gave no indication that he was directly informed he could not work in the public service.  His evidence was that he was qualified for the public service jobs for which he applied, but his applications were rejected.  The Tribunal concludes that he was competing with other applicants and there is no more than a remote possibility that his rejected applications were related to any motivation by the authorities to prevent him from working in the public sector.  Even if the Tribunal is wrong on this point, the fact that he was permitted to pursue his vocation in the same manner as he had before his imprisonment, without interference, leads to the conclusion that he was not the victim of persecution after his release.

The Applicant stated that neither he nor his mother were harassed by the authorities during the period after his release.  He said he was able to freely travel to Teheran every week or two without being harassed at home or in the town where he worked, notwithstanding that he did not give any information to the Pasdaran, as he had agreed to do.  He claimed that this was the result of the Pasdaran allowing him freedom so that they could monitor his movements and contacts.  However, this claim is inconsistent with the claim that he became close friends with an activist with whom he consorted over a period of two years or more.  It is also inconsistent with the claim that he went into hiding in a Northern town for the four months prior to his departure for Australia.  The Tribunal concludes that there is no more than a remote chance that he was monitored by the Pasdaran and also concludes that any issue in which the authorities had an interest was finalised when the Applicant served his sentence and was released.

The evidence of the Applicant suggests that he did not, in fact, go to another town after his release.  At the hearing, the Applicant stated that he lived in the second town for a period of twelve to eighteen months.  When the Tribunal pointed out this did not accord with other evidence, he stated he lived there for two years.  He also claimed, for the first time, that he had gone into hiding in the Northern town for four months prior to his departure for Australia.  On the other hand, he agreed that the Pasdaran operates a complex surveillance system at local levels and his application form states that he lived in the same place in Teheran for the ten years prior to his departure and was self-employed until that time, without any unemployment.  While it may be reasonable that the Applicant could overlook short periods of residence in other locations, the Tribunal does not accept that he would overlook a period of two years which are so significant to his claims.  Nor does it accept that he could remain in hiding for four months without attracting the attention of local authorities.  Further, there was no indication that anybody in his family was questioned during those four months, despite the claim that his friend had been interrogated during that periods.  He also told the Tribunal that he was accompanied to the airport by his family, but there is no evidence that he or any family members came to the attention of the security officers or other officials.

The conclusion that the Applicant has contrived the account of living in other locations and arranging his departure to avoid being detained is supported by the inconsistency of his evidence regarding his efforts to obtain exit documents.  His initial written submission states that his friend was arrested in December 1994.  He altered this to September 1994 later on when it became apparent that the Departmental interviewer was aware his application to go to Australia had been lodged in mid-September.  It was submitted that he was confused by the difference between the Persian and Gregorian calendars, although this difference did not lead to inaccuracies in referring to many other dates.

It was the Applicant’s claim that he was provoked to leave the country after he discovered his friend had been detained.  The Tribunal asked the Applicant to give details of the events that lead to his application for a visa, yet on his own account, the time at which he resorted to an agent to pursue the visa application significantly post-dates the date of the visa application.  In addition, he had his passport renewed at least two months prior to the earliest possible time of the alleged arrest of his friend.  He stated that he did not know how this was done, as his brother made the arrangements for his passport renewal.  It is notable that the passport was renewed nine months after its previous validity had expired, although there was no evidence that there was a particular event that inspired the renewal at that time.  In the circumstances, the Tribunal draws the conclusion that the Applicant’s plans to leave Iran were unrelated to any Convention reason.  It concludes that he lived and worked in Teheran until he left for Australia and that, for the purposes of enhancing his refugee application, he has fabricated the account of being friends with a person who was arrested for opposition activities, and subsequently going into hiding.”(emphasis added)

The Tribunal also considered the observations contained in the Australian Department of Foreign Affairs report, Country Profile for use in refugee determination: Islamic Republic of Iran (March 1996), in which the DFAT reported that:

At the airport, travel documents are checked by representatives of several Government agencies, passport Office, Customs, Information Ministry and Revolutionary Guard Corps at different points of the check-in procedure.  With so many different checks, it would be impossible for anyone to bribe their way through an airport to effect departure.  Similarly, it would be almost impossible to use an unauthorised travel document to pass through unless the document itself was a genuine one obtained under false pretences and/or with the collaboration of a range of people in the Passport Office... In the past, airport document and security checks were even more stringent, making these scenarios even more unlikely.

It would be highly unlikely (perhaps even impossible) for someone whose offences were considered serious enough to warrant a denial of a passport, to obtain both a passport and exit stamp and depart for Iran through Teheran airport. There are too many people and agencies involved in such security matters for an individual to be able to pay off all the right people, or hypothetically to know even whom to pay off.”

Based on this information and the applicant’s evidence, the Tribunal concluded that the applicant was not of any interest to the authorities when he left Iran, and that he would have obtained his passport and departed through the normal channels.  The Tribunal rejected the applicant’s claim that he made arrangements to leave Iran as a consequence of his friend’s arrest, or that he was in hiding when these plans were made.

In summary, the Tribunal continued:

“The Tribunal notes that the Applicant’s claims rested on his sister’s activities until he was detained.  Following his release, he gave no evidence that the authorities showed any further interest in his sister and, apart from asking him for information, they showed no interest in the Applicant.  His focus then transfers to claims related to the arrest of a friend with who he had consorted over a prolonged period, but this account of events is inconsistent with evidence regarding exit documentation and procedures, and the extensive surveillance system the Applicant agreed was implemented by the Iranian authorities.  Further, despite previous claims that the Applicant and his mother were constantly harassed by the authorities because of a relative’s activities, there is no claim that such harassment continued to be directed at the Applicant or any of his relatives after the Applicant’s release from prison, notwithstanding the claim that there was still an ongoing interest in him, his sister and his friend.  The Tribunal concludes that he was not a refugee when he departed Iran, as any fears of persecution he may have harboured were ill-founded because there was not a real chance that they would be realised.” (emphasis added)

The Tribunal concluded that it was unlikely the applicant’s brother would be told by the authorities that the applicant had been placed on a black list because he was associated with an anti-government activist.  The Tribunal further considered that, if it was wrong on this account, the DFAT Profile indicated that people who have a minor association with the Mojahedin do not face a real risk of persecution, should they return to Iran.  The Tribunal continued:

In the Tribunal’s view, the Applicant’s claimed political activities could be described, at most, as peripheral.  He stated that he was not committed to the cause of the Mojahedin and that he sometimes passed on messages to trusted acquaintances.  His initial submission that he became involved in activities from the age of sixteen were not borne out by later statements at the hearing that his story began in 1989 with the arrest of a friend of his sister and he had no fear about returning to Iran in 1990 because he had not been involved.  At the Department interview, he was unable to provide any significant details of the operations or philosophy of the Mojahedin.  While the Applicant was imprisoned, he did not claim that this was because he was suspected as a Mojahedin supporter, but because he had objected to mistreatment of his mother and was accused of being disloyal to Islam.  As unfair as this was, it does not indicate he was suspected of being a sympathiser of the Mojahedin.

The Tribunal does not accept that the Applicant has ever been suspected of anti-revolutionary sentiments or behaviour.  Nor does it believe that his relatives have been interrogated because of such activities and informed that the Applicant will be severely punished if he returns.  It accepts that he was once involved in an argument related to harassment of his mother and he was unfairly punished and mistreated.  This occurred some three years prior to his departure and after his release he was able to pursue his normal employment and life and then leave the country without hindrance.  The possibility that he was previously at risk of punishment for being associated with a dissident group is far-fetched.  Similarly, there is no acceptable information before the Tribunal to indicate that there has been a change in circumstances since he left the country or any other Convention reason.  Even if the Tribunal is mistaken in its conclusions that the Applicant has not been suspected of Mojahedin sympathies, and will not be so suspected in the foreseeable future, his history of returning to normal life without harassment indicates that there is no more than a remote chance that he faces persecution for that reason should he return.  Such a conclusion would be supported by the information from DFAT, above.”

Grounds of review

Section 476 of the Act provides:

1. (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

   .....

   (e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision.”

(2)The following are not grounds upon which an application may be made under subsection (1):

(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.

The applicant submits that the Tribunal’s decision involved errors of law, in particular that the Tribunal incorrectly interpreted the definition of “refugee” as set out in Article 1A(2) of the Convention, in that it failed to consider or properly consider that -

1. the existence of previous acts of persecution against the applicant could satisfy the subjective element of the “well founded fear” of future acts of persecution;

1. the applicant’s sister’s involvement in anti-government activities could create a “well founded fear of persecution” on the part of the applicant and his family due to a perceived family involvement with those activities; and

1. both the previous acts of persecution against the applicant and the perceived association of the applicant’s family in anti-government activities could satisfy the objective element of the “well founded fear” of future acts of persecution.

The applicant submitted that the Tribunal was obliged to consider the chance of persecution from the perspective of those perpetrating the persecution and that, where there is evidence of association with political dissidents, that is sufficient to satisfy the “real chance” test of persecution for a Convention reason: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. It was further submitted that the Tribunal failed to consider the cumulative effect of the evidence in determining whether the applicant faced a “real chance” of persecution; in particular, it failed to perceive that the evidence given about his sister, in conjunction with the evidence given about his friend who was arrested in September 1994, together demonstrated that there was a real chance that the authorities would be likely to persecute him because of these associations. This limitation of the “real chance” of persecution test by reason of political opinion to the extent of the applicant’s personal opinions and beliefs, rather than taking into account his association with known political activists, is said to have led the Tribunal into error.

It was also submitted that, the applicant once having been persecuted by being gaoled and beaten, for Convention reasons, the Tribunal misdirected itself about the lasting significance of such maltreatment, absent cogent evidence of real change: see Chan per Gaudron J at 415.

Conclusions

The suggested criticism that the Tribunal misdirected itself as to the law rather misses the point.  The essence of the Tribunal’s reasoning was that:

1. to the extent that there had been maltreatment of the applicant at the hands of the Iranian authorities before he was convicted and imprisoned in 1991, and by and during such imprisonment, he had thereafter ceased to be of interest to the authorities except as a possible informant; even as such, his failure to provide information produced no pressure upon him.

1. the applicant had fabricated important elements of his story to give colour to his claims that he was a persecuted man.

Upon those findings, for which there appears to be a legally sufficient basis, the rejection of the applicant’s claim was sure to follow, even had the Tribunal expressly directed itself in the ways the applicant’s submissions would urge.  Upon the Tribunal’s findings, either the applicant’s fears of persecution were not genuinely held or there was no reasonable chance that they were well-founded.  It was and irrelevant to those conclusions whether any such fears were of persecution of the limited kinds referred to in the Convention or of other kinds. 

In any case, I do not assume that the Tribunal misunderstood the nature of the applicant’s case or that it misconceived the law.  I see no reason to assume that the Tribunal did not understand that, in part, the applicant was saying that he was persecuted because of his association with others, including his sister and his alleged friend.  There is likewise no reason to assume that the Tribunal did not understand that persecution on account of one’s perceived, as distinct from actual, political opinion may suffice, if all other conditions are met, to attract the protection of the Convention.

It is true that, once an applicant for refugee status has been subjected to conduct that has given rise to a well-founded fear of persecution, distinct evidence of a change in circumstances must be available.  In Chan, Gaudron J said (at 415):

The definition of ‘refugee’ looks to the mental and emotional state of the applicant as well as to the objective facts.  It is a commonplace, encapsulated in the expression ‘once bitten, twice shy’, that circumstances which are insufficient to engender fear may also be insufficient to allay a fear grounded in past experience.  Although the definition requires that there be ‘well-founded fear’ at the time of determination it would be to ignore the nature of fear and to ignore ordinary human experience to evaluate a fear as well-founded or otherwise without due regard being had to the applicant’s own past experiences.

If an applicant relies on his past experiences it is, in my view, incumbent on a decision-maker to evaluate whether those experiences produced a well-founded fear of being persecuted.  If they did, then a continuing fear ought to be accepted as well-founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality.  To require more of an applicant for refugee status would, I think, be at odds with the humanitarian purpose of the Convention and at odds with generally accepted views as to its application to persons who have suffered persecution.”

In Yesus v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 9 July 1996) I drew attention to the need for cogent evidence of change. But, implicitly, that test was adequately applied here: one of the points of the Tribunal’s consideration of the matters was whether, after the applicant had been imprisoned (I am assuming, for the moment, contrary to the Tribunal’s finding, that he was really imprisoned for being his politically active sister’s brother), there was any extant or current reason for him to fear a recurrence of serious mistreatment. The conclusion of the Tribunal, reasonable enough, it seems to me, was that there was no such reason. Several years had gone by, with no such maltreatment. That was a cogent enough indicator of change: whatever had been the nature of the governing regime’s interest in him previously, the regime had lost that interest in him. Even persecutory regimes are likely to have priorities, and in time a person may well slip, unnoticed as it were, into safety, even if, once persecuted, that person can never subjectively believe that he or she is now safe.

The other basis of attack was an effort to say that if the Tribunal made a mistake as to the merits of the case, then the Tribunal could not have acted according to “the merits of the case” within s 420.  S 420 is in the following terms:

“s420  (1)       The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2)The Tribunal, in reviewing a decision:

(a)is not bound by technicalities, legal forms or rules of evidence; and

(b)must act according to substantial justice and the merits of the case.”

Assuming that s 420 gives enforceable rights to an applicant, the submission is misconceived.  S 420 is directed to requiring the Tribunal to deal with the substance, as distinct from the forms and technicalities, of an application for review.  That the Court might or might not consider that there was some factual mistake in dealing with the substance of his case is
beside the point.  One can say with certainty that Parliament did not contemplate that s 420 should give rise to appeals to the Court on matters of fact.

The application for judicial review should be dismissed.

I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick

Associate:

Dated:            1 September 1997

Solicitor for the Applicant:	M Newman
Counsel for the Respondent:	G Johnson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	12 June 1997
Date of Judgment:	1 September 1997