SBAO v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 373

FEDERAL COURT OF AUSTRALIA

SBAO v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 373

SBAO v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S.232 of 2001

MANSFIELD J
9 APRIL 2002
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.232 OF 2001

BETWEEN:	SBAO APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	9 APRIL 2002
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay to the respondent costs of the application.

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.232 OF 2001

BETWEEN:	SBAO APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	9 APRIL 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The applicant is an Iranian of Bakhtiari ethnicity, and a Shi’a Muslim.  He was born in 1971, and after completing 12 years of primary and secondary education, he underwent a short period of training and qualified as a welder.  Between 1991 and January 1999 he worked as a welder in Ahvaz in Iran, and then subsequently in Bandar Abbas until he left Iran.  He left Iran legally, using a genuine passport.  He arrived in Australia on 15 July 2001, and then applied for a protection visa under the Migration Act 1958 (Cth) (the Act).

2. On 25 October 2001 a delegate of the respondent refused to grant that visa to him.  He sought review by the Refugee Review Tribunal.  On 29 November 2001 the Tribunal affirmed the decision of the delegate.

3. This application now seeks an order under s 39B of the Judiciary Act 1903 (Cth) setting aside the Tribunal’s decision.

4. For the applicant to have been granted the visa, it was necessary that the delegate of the respondent and, on review, the Tribunal be satisfied that he is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act (the Convention).  That is because s 36(2) of the Act prescribes that matter as a criterion about which the delegate of the respondent and, on review, the Tribunal must be satisfied if it is to grant the visa to the applicant.  If the Tribunal is not satisfied that that criterion is met, then it must refuse to grant the visa to the applicant:  s 65(1).  In practical terms, in the present matter, that meant that the Tribunal had to be satisfied that the applicant is a refugee as defined in Article 1A(2) of the Convention, namely a person who:

   “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 APPLICANT’S CLAIMS

5. The applicant claimed to have a well-founded fear of persecution if he were to return to Iran by reason of his ethnicity and by reason of political opinion, namely an anti-government political opinion, either actually held by him or imputed to him.

6. He claimed that his troubles in Iran began in 1998 when he was walking with his girlfriend.  The Basij (religious police) assaulted his girlfriend.  He intervened and was himself assaulted and shot in the foot.  He was hospitalised briefly and then detained for about a week before being released.  Thereafter he claimed to have been detained regularly on virtually a weekly basis by the Basij, and assaulted or taken to a mosque and beaten and questioned for a day or two on each occasion.  He claimed that, in early 1999, on one such occasion he threatened to expose his treatment publicly.  He said he was then blind-folded, and taken to a place of detention and placed in a cell.  He said he wrists were slashed to make it look like he had attempted to commit suicide.  He was released after seven days.  He then left Ahvaz and went to Isfahan where he remained for a period, living with his mother, to avoid further trouble.  He then went to work in Bandar Abbas, visiting Isfahan from time to time.

7. He claimed that in February 2001 in Shahin Shahr in Isfahan he took part in an anti-government demonstration.  During the course of the demonstration, some persons were assaulted, when the disciplinary forces arrived.  The demonstrators dispersed, but he said then that the Basij, who had observed the demonstration, also attacked the demonstrators and subsequently sought to have arrested those who had been demonstrating.  The applicant fled from the scene and remained with a low profile in Isfahan until his departure from Iran.

   THE TRIBUNAL’S REASONS

8. The Tribunal generally was not impressed with the applicant’s evidence.  It said:

   “In my view, significant aspects of the applicant’s evidence were vague, confused and inconsistent with the independent evidence.  I am of the view that the applicant has exaggerated and embellished parts of his evidence and has fabricated others.  Overall I do not consider that the applicant is a credible or reliable witness.”

   That view of the applicant’s reliability as a witness clearly affected its consideration of his individual claims.  It dealt with them sequentially.

9. Firstly, the Tribunal rejected the applicant’s claim that he faces or may face persecution in Iran by reason of being Bakhtiari.  It noted that no independent evidence before it suggested that Bakhtiaris, either in Khozestan Province or elsewhere in Iran, were subject to persecution for reason of their ethnicity.  The reference to Khozestan in particular was because the applicant, in the course of his evidence to the Tribunal, suggested that Bakhtiaris in Khozestan were particularly identified as monarchists and supporters of the Shah, and for that reason were particularly the target of persecutory conduct even though Bakhtiaris generally may not have been so targeted.  The Tribunal noted, apart from the absence of any independent evidence supporting the applicant’s claim, that he and his siblings had each obtained full secondary education and that all of his siblings other than the applicant had undertaken tertiary education.

10. The Tribunal accepted that on one occasion the applicant was detained when he was “caught walking in the street with his girlfriend”, and that the applicant was then shot and detained because he retaliated when his girlfriend was assaulted.  However, it concluded that that incident occurred not because of the applicant’s race or for any other Convention reason, but because it was a direct consequence of his retaliation against the Basij who assaulted his girlfriend.  It did not make any finding as to why that assault upon his girlfriend involving the applicant occurred in the first place, but in the light of its findings it is apparent that the Tribunal must have excluded his ethnicity or his claimed political opinion as the cause or as a cause of that assault.

11. The Tribunal did not accept the applicant’s claim that, following that incident, he was detained and mistreated more or less every week during 1999.  It said:

    “The applicant did not advance any convincing explanation for why this occurred.  He did not claim that he was ever again caught with his girlfriend.  There was nothing in the applicant’s evidence to indicate that he was involved in any political activities, or in any other activities which would attract the adverse attention of the Basij in particular or the Iranian security forces in general.  In my view, given that the applicant was not charged with any offence following the incident in which he was shot, I consider it implausible that the Basij would have any ongoing adverse interest in him as a result of this incident.

    That aspect of the applicant’s claims contributed to the Tribunal’s view that the applicant had exaggerated his evidence.

12. After the applicant had moved to Bandar Abbas in late 1999 or early 2000, he did not complain of any problems either with the Basij or with the Iranian authorities generally for some 12 months.

13. The Tribunal then addressed the applicant’s claims in relation to his participation in a demonstration in Shahin Shahr in February 2001.  It concluded:

    “Overall, the inconsistency of the applicant’s evidence concerning the Shahin Shahr demonstration with the relevant independent evidence, as well as the generally unsatisfactory nature of the applicant’s evidence in relation to this aspect of his claims, leads me to conclude that the applicant did not in fact participate in the demonstration as he has claimed.  I am of the view that the applicant fabricated this claim in an attempt to enhance his claims to refugee status.”

14. The Tribunal’s reasons indicate that it explored in some detail with the applicant the date of the demonstration to which he referred.  It had independent evidence that there was a peaceful demonstration which took place on 9 February 2001, the date attributed to the demonstration by the applicant.  Because the reports of that demonstration confirmed that security forces did not intervene in it, the Tribunal rejected the claim that Basijis attacked demonstrators during that demonstration.  It specifically addressed the applicant’s claim that there had in fact been two demonstrations, the peaceful one referred to in the independent information which was a student demonstration, and a separate one in which he was involved.  It did not accept that to have been the case.  There was no evidence before it, other than the applicant’s claims, to suggest that two separate demonstrations were held in Shahin Shahr on that day, and it regarded the applicant’s evidence about his involvement as being unsatisfactory, partly because he could not explain satisfactorily to the Tribunal how he was able to escape when he was involved in a physical confrontation with armed Basijis, and partly because he had not been arrested although he claimed that the security forces were aware of his identity and had otherwise arrested persons following that demonstration.

15. Consequently, the Tribunal was of the view that at the time the applicant left Iran, he was of no adverse interest to the Basij in particular or to the Iranian security forces either in Ahvaz or in Bandar Abbas or anywhere else in Iran.  It was not satisfied that he is a person to whom Australia has protection obligations under the Convention, and accordingly he did not satisfy the criterion specified in s 36(2) of the Act for the grant of a protection visa.

    THE GROUNDS OF REVIEW

16. The applicant in his application does not identify any grounds which, if established, would warrant the court’s intervention in the Tribunal’s decision under s 39B of the Judiciary Act. At the same time as his application, he filed a statement headed “affidavit”, which also does not identify any such grounds. Both of those documents really do no more than re-assert the facts which he had presented to the Tribunal and which it had rejected.

17. The applicant’s particular complaints in those documents were that he had participated in a demonstration in February 2001 contrary to the Tribunal’s finding, and that he had been harassed by the Basij during the whole of 1999, and that that claim had been overlooked by the Tribunal.  He further claimed that the Tribunal had confused the demonstration in which he had participated with the student demonstration referred to in the independent country information in which he did not participate.  Finally, he complained that the Tribunal had not apprehended that his claim to persecution by reason of being Bakhtiari was focused upon being a Bakhtiari in Khozestan, where Bakhtiaris are vulnerable to persecution because of their monarchist attitudes and their support for the Shah, rather than in the whole of Iran..  In his oral submissions in support of his application, the applicant again repeated those matters.  In addition, he asked rhetorical questions in an endeavour to highlight the nature and genuineness of his claims, namely why so many Bakhtiaris have left Khozestan in Iran if they were not vulnerable to persecution there, and why he should have left Iran and left his family and his job and his home connections there but for the persecution which he was suffering.

18. I have carefully considered those matters. In my view. they do not indicate reviewable error on the part of the Tribunal. In the recital of the Tribunal’s reasons referred to above, it is clear that the Tribunal appreciated that the applicant was claiming persecution not simply by reason of being Bakhtiari, but by reason of being Bakhtiari in the Khozestan area of Iran because of his claim that persons from that area are perceived as supporters of the Shah. The Tribunal specifically noted that claim, and referred to it again in that section of its decision entitled “findings and reasons”. It rejected that claim on the basis of independent country information and the way in which his family had been able to pursue educational opportunities. It also referred in some detail to the nature of the applicant’s claims about being detained and mistreated by the Basij during the whole of 1999. It rejected that claim for reasons which it expressed. It was satisfied only that the applicant had been detained on the one occasion when he had been involved in an assault following the Basij assaulting his girlfriend. Although it did not then address the reason why the assault upon his girlfriend had occurred in the first place, it positively excluded that the treatment which the applicant then received was for any Convention reason. Those matters are matters of fact which, although the applicant may disagree with them, do not demonstrate any error on the part of the Tribunal so as to warrant intervention under s 39B of the Judiciary Act.

19. It is also apparent from the Tribunal’s reasons that it understood the applicant’s claim to have participated on 9 February 2001 in a demonstration which was different from the student demonstration referred to in the independent country information which also took place in Shahin Shahr on that day.  It rejected the claim that there were two such demonstrations, based upon the absence of any independent evidence to that effect, together with its dissatisfaction with elements of the applicant’s evidence about how he had managed to evade arrest on that occasion, or prior to his departure from Iran, if he had been involved in the way he claimed.

20. It is understandable, given the applicant’s circumstances, that he might not be able to focus upon matters which might expose the Tribunal’s decision to review. I have therefore considered the Tribunal’s reasons for decision independently, to ascertain whether any such ground emerges. In my view, no ground emerges from that consideration of the Tribunal’s reasons which would justify the making of an order under s 39B of the Judiciary Act in relation to that decision.

21. In my judgment the findings that the Tribunal made are not shown to have been imbued with error of a nature which would warrant the Court’s intervention under s 39B of the Judiciary Act. It is therefore unnecessary to consider whether, even if that were the case, s 474(1) of the Act would preclude the Court from making such an order in the present circumstances. I consider that the application should be dismissed. I see no reason why the ordinary rule as to costs should not apply. The applicant is therefore ordered to pay to the respondent costs of the application.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             2 April 2002

Counsel for the Applicant:	The Applicant appeared in person.
Counsel for the Respondent:	Ms K. Southcott
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	26 March 2002
Date of Judgment:	9 April 2002