SAAT v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 514

FEDERAL COURT OF AUSTRALIA

SAAT v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 514

MIGRATION – applicant in person – applicant from Iran – applicant claiming fear of persecution based on political beliefs and family connections – whether the Refugee Review Tribunal erred in finding that the applicant’s fear of persecution was not well-founded.

Migration Act 1958 (Cth)

SAAT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 208 OF 2001

O’LOUGHLIN J
29 APRIL 2002
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 208 OF 2001

BETWEEN:	SAAT APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	O’LOUGHLIN J
DATE OF ORDER:	29 APRIL 2002
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        The Application be dismissed.

2.The Applicant pay the Respondent’s costs, such costs to be taxed in default of agreement.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 208 OF 2001

BETWEEN:	SAAT APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	O’LOUGHLIN J
DATE:	29 APRIL 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The applicant is a citizen of Iran.  He arrived in Australia as a boat immigrant on 20 April 2001 and was taken into immigration detention.  He continues to remain in detention.

2. He sought a Protection Visa but his application was rejected by a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) on 23 August 2001.  He then sought review by the Refugee Review Tribunal (“the Tribunal”) but was once again unsuccessful.  He now seeks the intervention of this Court.

3. The contents of the application that is now before the Court, together with its supporting affidavit, although not prepared by a legal practitioner, suggests that the applicant may have been assisted in the preparation of the documents by someone with a good command of English grammar.  I will return to the details of these documents after summarising the findings of the Tribunal.  What follows, by way of personal information about the applicant, has been extracted in summary form from the Tribunal’s reasons.

4. The applicant, who was born on 23 May 1953, is married with three children.  His wife and children remain in Iran.  He was employed as a policeman from 1972 to 1986.  Thereafter, he worked for various employees as a driver.

5. The applicant said that in 1985, he and his wife were arrested and interrogated and he was beaten because “his wife’s veil was not in the correct place”.  He complained to some of his fellow police officers about the way in which he and his wife had been treated and not long after he was questioned by intelligence officers and accused of being “anti-regime”.  He believes that one of the police officers in whom he confided must have reported him.  He said that he became fearful for his future; he left the police force and took work as a driver in the country, although he was able to return to his home and family frequently.

6. The Tribunal recorded the applicant’s evidence about the circumstances leading to his leaving Iran in the following passage in its reasons:

   “The Applicant stated that about a month before his departure from Iran, one of his fellow officers who had remained a friend told him that his file had turned up again.  The Applicant had witnessed incidents while he was in the police force which might be investigated again and so he decided to leave the country.  His brother had a tenant who had previously talked about leaving the country through Oroumieh and the Applicant remembered that.  The tenant put him in touch with the smuggler.  The Applicant stated that he feared he would be killed if he returned to Iran.”

   At a later stage in its reasons, the Tribunal noted that the applicant told the Tribunal that a close friend, who was in a position of authority, had told him that a charge had been laid against him and that it would be too dangerous for him to stay in Iran.

7. The applicant was assisted by an adviser before the Tribunal and the Tribunal noted that in the submissions that were made on behalf of the applicant it was submitted that the harm that was feared by the applicant if he were to return to Iran would amount to persecution and that it would be for reasons of:

   “… his actual or imputed political profile.”

8. The Tribunal noted, however, that it had been argued that the incident in 1985 had raised both political and religious issues.  To this the Tribunal added the observation that the applicant had left Iran illegally.

9. The Tribunal accepted that the applicant had no country or nationality, and no country of former habitual residence, other than Iran.  The Tribunal also accepted that the applicant was fearful of returning to Iran.  Even so, it correctly noted that its task was to assess whether the applicant’s subjective fear was objectively well-founded.

10. The Tribunal regarded the applicant as a credible witness, accepting his evidence about the occasion when he and his wife were arrested and accepting that they had been insulted and badly treated.  The Tribunal also accepted that his outspoken remarks ultimately led to the applicant leaving the Police force.  I do not think that it matters whether the applicant resigned (as stated by the Tribunal) or whether he was dismissed as the applicant now claims.  The Tribunal was, in my opinion, more influenced by the huge gap in time between the 1985 incident and his leaving the country than it was by his reason for leaving the Police force.  On the other hand, the Tribunal noted in its reasons that:

    “[t]he applicant understood that the information he gave to the tribunal did not suggest that he had a high profile or that he had been in serious or constant trouble with the authorities.”

    Expressed in this fashion, it is not clear whether the Tribunal was recording a concession that the applicant had made or its own finding.  Read in the context of the entire reasons, it would seem appropriate to proceed upon the premise that the statement could be regarded as part of the Tribunal’s reasoning process leading to a finding that it later made when it recorded that:

    “… It therefore finds that from the time he left the police force, at least for the next decade, he had no conflict with the authorities and they indicated no problem with his behaviour.”

11. The Tribunal next addressed the applicant’s claim that a friend in the police force had told him sometime in the year 2000 “that a file had been opened on him and his old record brought to the surface”.  The Tribunal did not accept that part of the applicant’s evidence.  It found “this story thin and unconvincing”.  After a gap of about fourteen years, the Tribunal was of the opinion that there was:

    “… no sound reason why this should be so.  None of the suggestions he made seemed to be of any great substance”.

12. It dismissed this allegation.  It also dismissed as irrelevant the applicant’s accepted political support for the reformist President Khatami.  The Tribunal said:

    “Given the very large public displays of support for Khatami and the reformists, the Tribunal is satisfied that the applicant has no political profile which makes his (sic) stand out from this (sic) crowd.”

13. Dismissing a further claim by the applicant that he might be a risk because he was friendly with a family who had had a son in the Mujahadeen, the Tribunal concluded that it was left:

    “… with nothing of substance to support the applicant’s claim that the authorities have now turned against him.”

14. In his application for an order of review and his supporting affidavit the applicant first addressed matters relating to his state of health and the difficulties that he encountered during his long voyage to Australia.  These matters and his enforced absence from his wife and children evoke much sympathy but they are not grounds for giving to him the status of a refugee.

15. The applicant submitted that an important part of his claim related to his distribution of anti-government pamphlets in Iran.  He said that information on this subject had been given to his migration agent and to his psychologist but, as he agreed, that information had not been presented to the Tribunal.  The obvious response to this submission is that no fault can attach to the Tribunal if information, peculiarly within the knowledge of the applicant or his agents, is withheld from the Tribunal.  There is, however, a further answer, which is to this effect:  there is not – even at this stage – any information about the nature or the content of the pamphlets.  Without that information, neither the Tribunal nor this Court could entertain any form of intervention on behalf of the applicant.

16. The rest of the applicant’s complaints would, if accurate, have to be dismissed as matters of no consequence.  For example, the Tribunal said, at one stage in its reasons, that the applicant claimed that the police had opened a new file on him, whereas he now claims that he told the Tribunal that his friend had said “they are re-opening your case”.  The applicant alleged that the Tribunal did not consider a letter that the applicant’s brother had written him (in which the brother set out information which, if correct, would corroborate the applicant’s fear of persecution).  That claim is wrong.  The Tribunal did consider the brother’s letter but it refused to accept that its contents were true.

17. After considering the reasons of the Tribunal and the written and oral submissions of the applicant, I have come to the conclusion that this application could not succeed on its facts.  It is not otherwise necessary to consider the effect of the amendments to the Migration Act 1958 (Cth) that were implemented in October 2001. In my opinion, there is no error in the reasoning process of the Tribunal. There is no warrant for this Court to interfere. The application is therefore dismissed with costs.

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

Associate:

Dated:             29 April 2002

The Applicant appeared in person
Counsel for the Respondent:	Mr M J Roder
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	8 April 2002
Date of Judgment:	29 April 2002