Salehi v Minister for Immigration and Multicultural Affairs

[2001] FCA 1166

FEDERAL COURT OF AUSTRALIA

Salehi v Minister for Immigration & Multicultural Affairs [2001] FCA 1166

RAHMAN SALEHI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W 110 of 2001

GRAY, CARR AND MOORE JJ
22 AUGUST 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 110 of 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA

BETWEEN:	RAHMAN SALEHI APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	GRAY, CARR AND MOORE JJ
DATE OF ORDER:	22 AUGUST 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.   The appeal be dismissed.

2.   The appellant pay the respondent’s costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 110 of 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA

BETWEEN:	RAHMAN SALEHI APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	GRAY, CARR AND MOORE JJ
DATE:	22 AUGUST 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT:

1. This appeal is from a judgment of a single judge of the Federal Court of Australia. The judge dismissed an application pursuant to s 476 of the Migration Act 1958 (Cth) (“the Migration Act”) for review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal had affirmed a decision of a delegate of the respondent not to grant to the appellant a protection visa pursuant to s 36 of the Migration Act.

2. Section 36(2) provides that a criterion for a protection visa is that the person applying for it is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. By s 5(1), the term “Refugees Convention” is defined as meaning the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the term “Refugees Protocol” is defined to mean the Protocol relating to the Status of Refugees done at New York on 31 January 1967. The effect of those

   
   

   instruments, so far as relevant for present purposes, is that Australia has protection obligations to 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”.

3. The appellant is a citizen of Iran, who was born on 22 November 1967.  He arrived in Australia on 30 April 2000 by ship from Indonesia.  On 30 May 2000, the appellant made an application for a protection visa (class XA).  The application was refused by a delegate of the respondent on 3 July 2000.  The appellant then applied to the Tribunal for review of the delegate’s decision.  The Tribunal made its decision on 28 September 2000, and published lengthy reasons for decision.  The appellant then applied to the Federal Court of Australia for judicial review of the Tribunal’s decision.  At the hearing by a single judge of the Court, the appellant was represented by counsel.  The judgment from which this appeal is brought was delivered on 26 March 2001.

4. The appellant filed his notice of appeal by facsimile from the detention centre at Port Hedland on 12 April 2001.  The notice of appeal consists of a typed form, to which hand-written additions have been made to supply information about the particular case.  The grounds of appeal are as follows:

   “I would like to appeal from the whole decision and judgment which made (sic) by the judge.”

   The orders sought in the notice of appeal are:

   “1.      I wish to my case consider (sic) differently.

   2.        And also I hope my case must go back to the RRT.”

5. The function of this Court when hearing an appeal of this kind is limited. It is to determine whether the single judge from whom the appeal is brought has made an error in considering the application for judicial review of the Tribunal’s decision. It is not for this Court to consider afresh whether the appellant is a person to whom Australia has protection obligations. Similarly, the function of the single judge was to determine whether one or more of the grounds specified in s 476 of the Migration Act for review of the Tribunal’s decision had been made out. It was not the function of the single judge to determine afresh whether the appellant was a person to whom Australia had protection obligations. Only the delegate of the respondent in the first place, and the Tribunal in the second place, could make such a determination.

6. The claim that the appellant put to the Tribunal was that he had a well-founded fear of persecution, if he were to return to Iran, by reason of his political opinion, real or imputed.  He claimed to have come to the attention of the Iranian authorities, and to have been harassed and persecuted, for three reasons.  First, he said that he had been instrumental in persuading his father to refuse permission for a man called Hussain to marry the appellant’s sister.  Hussain was a neighbour of the appellant’s family and was a Pasdaran (revolutionary guard), whose father was a mullah.  Hussain had caused the Basij (security forces) to take an adverse interest in the appellant because of the rejection of Hussain’s proposal.  Second, the appellant claimed that Hussain had seen the appellant’s father to be in possession of a picture of the former Shah and had imputed to the appellant monarchist views.  Third, the appellant claimed to have participated in student demonstrations in Tehran in July 1999 and to have fled from those demonstrations when a friend drew his attention to the fact that Hussain was watching him.  The appellant claimed that it was this incident which led him, at a later time, to leave Iran.

7. The Tribunal did not accept the appellant’s claims.  It found his evidence in relation to those matters to be unconvincing, unsatisfactory and lacking veracity.  The Tribunal accepted that there may have been a marriage proposal by Hussain.  It did not accept that the appellant had played a major role in the rejection of the proposal or that the rejection led Hussain to cause the authorities to take an adverse interest in the appellant.  The Tribunal did not accept that the appellant had been the subject of adverse interest because of imputed monarchist views; it did not accept the appellant’s statement that he, rather than his father, was a target for persecution for monarchist views because the authorities had respect for his father’s age.  The Tribunal was not satisfied that the applicant was targeted by Hussain or that he was harassed, arrested, questioned or harmed by the Iranian authorities at the instigation of Hussain.  The Tribunal was not satisfied that the appellant had participated in the student demonstrations in July 1999, that he was identified there by Hussain, or that he fled from the demonstrations and left Iran in consequence of that identification.

8. The Tribunal also considered whether the circumstances of the appellant’s departure from Iran might give rise to protection obligations.  It found that it was probable that the appellant had departed Iran legally, using his own Iranian passport, which he disposed of prior to his detention in Australia.  The Tribunal accepted that, on return to Iran without his Iranian passport, the appellant might be subjected to questioning by the Iranian authorities and might even be fined or imprisoned for illegal departure.  The Tribunal was satisfied that, even if this were so, it would not amount to persecution, because the punishment for illegal departure would be an ordinary enforcement of Iran’s migration law.  The Tribunal also found that the applicant did not face a real chance of persecution by reason of having made a failed application for a protection visa in Australia, if he were to return to Iran.  It found no evidence that failed refugee claimants, persons who have left Iran illegally, or deportees face any significant problems upon return to Iran, and applying for asylum abroad is not an offence in Iran.

9. The Tribunal concluded that it was not satisfied that the appellant had a well-founded fear of harm for reasons of his political opinion.  It was not satisfied that he had a real chance of persecution in the reasonably foreseeable future if he was to return to Iran because of his political opinion, his lack of a passport or his application for refugee status in Australia. 

10. Before the single judge, the appellant’s counsel relied on only two grounds to argue that the Tribunal’s decision revealed judicially reviewable error. The first was based on s 476(1)(g) of the Migration Act, namely that there was no evidence or other material to justify the making of the decision. This ground was raised in respect of the conclusion of the Tribunal that there was no real chance that the appellant would suffer persecution upon return to Iran if he had departed Iran illegally. Because the Tribunal had found that it was probable that the appellant had departed Iran legally, it was argued that there was no evidence to justify the making of the decision that he would not suffer a real chance of persecution if he had departed illegally. In his reasons for judgment, the learned judge referred to s 476(4)(b), which requires that the ground in s 476(1)(g) is not to be taken to have been made out unless the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist. His Honour concluded that all that the Tribunal was doing was considering what the position would be if it was wrong in finding that the appellant had departed Iran legally or, if he were thought to have departed Iran illegally because he did not have an Iranian passport on return.

11. The second ground on which the appellant sought to overturn the Tribunal’s decision was based on s 476(1)(e) of the Migration Act, namely error of law in that the Tribunal incorrectly applied the law to the facts. It was said that the Tribunal fell into such an error when it did not consider whether the making of particular claims by the appellant in his application for a protection visa in Australia could result in him having a real chance of persecution because of the nature of those claims. The claims concerned were his claims of persecution by Hussain, imputed monarchist views and participation in student demonstrations. The appellant also referred to his alleged possession of political beliefs in opposition to the regime in Iran. The submission was that the Tribunal failed to address this issue when it decided that a failed claim for refugee status in Australia was unlikely to give rise to a chance of persecution on return. The learned judge rejected this submission. His Honour referred to the fact that the Tribunal had considered the nature and contents of the particular grounds in its reasons for decision. Having regard to the way in which the issue of what might happen to the appellant on his return to Iran was raised, and to the finding of the Tribunal that there was no evidence that failed refugee claimants faced a real chance of persecution, the Tribunal was not obliged to consider the grounds specifically again in the context of the issue of a failed claim for protection in Australia. His Honour considered that the submission invited the Court to consider the merits of the appellant’s case, which the Court was not permitted to do.

12. Although counsel appeared for the appellant before the single judge, and although he has subsequently received legal assistance as part of the Court’s free legal assistance scheme pursuant to O 80 of the Federal Court Rules, the appellant appeared in person before this Court. He did not put to this Court any submission indicating that the learned judge had made any error in coming to the judgment from which the appeal is brought. The Court has been unable to perceive any error on the part of the learned single judge. It appears to the Court that the learned judge was correct to conclude that the appellant had not made out any ground of review under s 476(1)(g) of the Migration Act with respect to the Tribunal’s finding as to what was likely to happen to the appellant on his return to Iran if he had left Iran illegally. It also appears to the Court that the learned judge was correct to conclude that the Tribunal had made no error in applying the law to the facts in reaching its conclusion that the appellant did not face a real chance of persecution by reason of having made a failed application for a protection visa in Australia.

13. Accordingly, the appeal must be dismissed.  The appellant should be ordered to pay the respondent’s costs of the appeal.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:             22 August 2001

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Mr P R Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 August 2001
Date of Judgment:	22 August 2001