Shams v Minister for Immigration and Multicultural Affairs

[2001] FCA 1420

FEDERAL COURT OF AUSTRALIA

Shams v Minister for Immigration & Multicultural Affairs [2001] FCA 1420

SAEED SHAMS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 181 of 2001

HILL J
18 SEPTEMBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 181 OF 2001

BETWEEN:	SAEED SHAMS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	18 SEPTEMBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application be dismissed.

2.   The applicant pay the costs of the respondent Minister.

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 181 OF 2001

BETWEEN:	SAEED SHAMS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	18 SEPTEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, Mr Shams, applies to the Court for judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”) confirming the decision of a delegate of the respondent Minister for Immigration and Multicultural Affairs not to grant to him a protection visa. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”).

2. The applicant came before me originally some weeks ago in Perth.  At the time video facilities were not functioning and I thought it undesirable, unless he agreed, to hear the matter by telephone.  He did not agree.  The applicant had also sought legal aid but the application had apparently been forwarded to the Australian Government Solicitor rather than a Registrar of the Court.  In consequence legal aid was not available to him.  That was another reason for adjourning the proceedings to a date to be fixed.  The hearing accordingly was stood over until today to be heard by video link. 

3. At the applicant’s request I made an order that the matter be referred to a legal practitioner for advice and, if appropriate, for representation of the applicant.  The practitioner considered the matter but ultimately advised the Registrar that he did not wish to make any submissions and would not appear at the hearing.  In consequence the applicant was unrepresented before me, although he had the aid of an interpreter.

4. Not surprisingly, the applicant is unfamiliar with Australian law. In particular, he is unaware of the limitation placed by Parliament upon the jurisdiction of this Court under s 476 of the Act. In consequence the applicant made submissions which went to the factual basis of the application he had made to the Tribunal. In making these submissions he sought to persuade me that I should believe his claims. I should say that I have no reason to disbelieve anything he has said. However, a consequence of the limited jurisdiction of this Court is that the Tribunal is the final arbiter of the facts.

5. The applicant is a national of Iran.  Briefly, it may be said that the applicant’s case before the Tribunal was that he had visited his sister in June 2000 at Abadan in Iran and had been caught up in a demonstration which had taken place there.  A number of people were killed during the course of the demonstration.  The applicant says that he was arrested and transferred to a detention centre, detained there and tortured.  He said he faced, as punishment for his part in the demonstration, a long period of imprisonment or even execution.

6. While he was being transferred to a court he took the opportunity to escape.  He spent some time in hiding and ultimately left the country by the main airport in Tehran.  He claimed also that his father had been arrested and gaoled in consequence.  He relied on these matters as demonstrating that he was a person to whom Australia had protection obligations because he came within the definition of “refugee” in Article 1A(2) of the 1951 Convention Relating to the Status of Refugees as affected by the 1967 Protocol Relating to the Status of Refugees (the “Convention”).

7. The Tribunal expressed the view that there were a number of internal inconsistencies in the applicant’s evidence, that it was inconsistent with independent evidence and implausible.  It said that it did not find him to be a credible or reliable witness.  Particularly, it found his claims of arrest and subsequent escape implausible for reasons which it set out.  It also did not accept that he had departed Tehran other than legally.  In this latter respect the Tribunal based itself upon country material which suggested that it would not be possible for a person who was wanted by the authorities to leave Iran even by paying a bribe.  The Tribunal also rejected what the applicant had said about his father.  It found that likewise to be not credible. 

8. Accordingly, the Tribunal stated that it was not satisfied that the applicant had a well-founded fear of persecution for any reason that fell within the terms of the Convention.  The Tribunal went on to say that if it was wrong and the applicant was indeed arrested in Abadan, it was not satisfied that he was a refugee.  In this respect, it suggested that one reason why he would not be a refugee was that any arrest he suffered was as a result of offending what the Tribunal referred to as a law of general application, that is to say, a law prohibiting demonstrations.  The Tribunal took the view that the authorities would not impute political opinions to him in any event as a result of what he had done. 

9. It has been well established by the Full Court of this Court that where the Tribunal has reached a firm conclusion that a person does not have a well-founded fear of persecution for a convention reason there is no need for the Tribunal to ask itself the question, “What if I am wrong?”:  see, for example, Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 240 per Sackville J. If such a question is asked, it raises the implication that the Tribunal was uncertain in coming to the conclusion that it did. That implication will, however, depend upon a reading of the whole of the Tribunal’s reasons. If a Tribunal is uncertain there is much to be said for the view that it should give an applicant before it the benefit of the doubt.

10. I think, however, that it is clear from a reading of the Tribunal’s reasons in the present case that the Tribunal had no doubt that the applicant was not a person with a well-founded fear of persecution.  Indeed, the Tribunal seemed to have no doubt that the applicant was not telling the truth.  I should say, however, that had the Tribunal based its decision on the conclusion that imprisonment contrary to a law prohibiting demonstrations could not constitute persecution for a Convention reason, namely political opinion, it would in my opinion, in many cases at least, have committed a reviewable error.  A law prohibiting demonstrations can be said on one view to be a law of general application.  But, where such a law is used to prevent political views being expressed, as may well be the case in a country such as Iran, it seems to me not correct to regard such a law just as a law of general application.  A person who disobeys that law in order to express a political opinion would suffer punishment, in my view, for that political opinion even if it is correct otherwise to describe the law as one of general application.

11. However, as I have said, it seems clear enough from the Tribunal’s reasons that the Tribunal simply did not accept that the applicant was arrested or detained in Iran, as he said he was, or that he had departed from Iran in the circumstances he described.  It is not for this Court to substitute its view of the facts for that of the Tribunal.  So to do is to engage in merits review rather than judicial review.

12. In the circumstances, I have no option but to dismiss the application, which I do.  I order the applicant to pay the Minister’s costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             9 October 2001

Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	L B Price
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 September 2001
Date of Judgment:	18 September 2001