Sobhani v Minister for Immigration and Multicultural Affairs

[2001] FCA 1746

FEDERAL COURT OF AUSTRALIA
Sobhani v Minister for Immigration and Multicultural Affairs [2001] FCA 1746

MEHRAN SOBHANI v MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS

W 336 of 2001

CARR J
7 DECEMBER 2001 
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W336 OF 2001

BETWEEN:	MEHRAN SOBHANI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	CARR J
DATE OF ORDER:	DECEMBER 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs. 

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	W336 OF 2001

BETWEEN:	MEHRAN SOBHANI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	CARR J
DATE:	7 DECEMBER 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 18 July 2001, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant.   The applicant, who is a citizen of Iran, arrived in Australia on 19 June 2000.  On 1 March 2001 the applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) (“the Act”). On 26 March 2001, a delegate of the respondent refused to grant a protection visa and on 29 March 2001 the applicant sought review of that decision.

   THE APPLICANT’S CLAIMS AND THE TRIBUNAL’S DECISION

2. At his initial interview upon arrival in Australia, the applicant’s claims were, in summary, that: 

   ·     He was an umarried Shi’ite Muslim who had lived in Ahwaz, at the same address, since birth.  He was the owner of a clothing shop.  He performed his standard two years’ military service between 1989 and 1991. According to the interviewer’s notes, he claimed to have obtained a valid Iranian passport in his own name by legal means.  Those notes indicate in some detail, that a people-smuggler took the passport from him.

   ·     He began planning to come to Australia about a year before he arrived. He departed Iran on 30 May 2000.  He spent two nights in Malaysia and nine days in Indonesia on the way to Australia.

   ·     Neither he nor any member of his family had ever been involved in any activities either with or against any political group or the government of Iran. 

   ·     There was an incident in which he and his sister were stopped by authorities when they were walking together in the market.  He was later taken to the office of an organisation concerning itself with social corruption and had to wait for his parents to come and verify that he was only walking with his sister.

   ·     He complained of corruption.  He spoke of the high cost of living.  He said he had no other reasons for leaving Iran than those recorded at his entry interview but cited as an example of corruption the fact that his brother who served in the Iran/ Iraq war was only paid veterans’ compensation for a short time.

3. In a written statement attached to his application for a protection visa, lodged eight months after the arrival interview, the applicant claimed as follows:

   ·     He had not divulged his whole story at the initial interview because he was afraid for his life in Iran because when he was told that his interview would be recorded he feared that his file would reach Iranian authorities.

   ·     The applicant claimed that he had attended at the organisation in Teheran responsible for paying monies and providing goods and services to war veterans such as his brother.  The name of the organisation was the Buniade-Janbazan.

   ·     By bribing a servant at that organisation the applicant obtained access to his brother’s file and found that some officers of the organisation had embezzled the entitlements which should have gone to his brother.

   ·     When he remonstrated vigorously with those in charge at the Buniade-Janbazan he had been taken into custody by intelligence officers beaten and tortured to the extent that he was hospitalised.

   ·     With the aid of a nurse at the hospital he had escaped custody.

   ·     He had fled Iran from a port called Govaneh in a fishing boat which took him to Dubai.

   ·     After one week in Dubai he had telephoned his brother’s home and been informed that the authorities had gone to their home and searched it looking for the applicant.  They had threatened his family and told them that they had to submit the applicant to the authorities as soon as they got any information about him.  He flew from Dubai to Malaysia and then to Indonesia.

   ·     He feared harm if returned to Iran because he had fled from the hospital when he was in custody, because he had left the country illegally and because he had problems with Janbazan organisation.

4. In written submissions to the Tribunal, prepared by his migration agent, the applicant asserted that when he had angrily denounced the Buniade-Janbazan officials, he had also “yelled angry criticisms of the regime and its clerical leadership for theft and corruption and treatment of the people of Iran.”  He further claimed to fear persecution for reasons of imputed political opposition to the ruling fundamentalist Islamic theocratic leadership in Iran arising out of this “enraged outburst”.

   THE TRIBUNAL’S DECISION

5. Rather than attempt to summarise the Tribunal’s findings and reasons, I set them out below.  I have added numbers to the paragraphs to facilitate the references which I make later in these reasons.

   “FINDINGS AND REASONS

   1.  The Tribunal has listened to the Applicant’s argument about failing to reveal his true claims due to having been told his words might be leaked back to the Iranian authorities.  This is a claim about having tried alternately to limit and fabricate what information he gave to Department of Immigration and Multicultural Affairs to meet a particular range of concerns at the time, in spite of a request that he speak the truth.  That the Applicant succumbed to this kind of deception is on the record by his own admission, although he claims he perverted the facts, out of fear, on only one occasion, that being the occasion of the Department of Immigration and Multicultural Affairs entry interview, and never again.  The overall picture of his evidence reveals, however, that many of his claims mutated a number of times from the moment of their appearance in his primary application form.  This trend cannot be waved aside as just another reflection of the fear the Applicant had upon arrival, especially since he claimed to have overcome it in order to make the claims he submitted his primary application.  The Tribunal is of the view that many of the Applicant’s most significant later claims are the real fabrications in his case and that they are borne of a fear that came upon him after his entry interview: a fear of being deported over having made an inadequate, though truthful bid for leave to remain in Australia in that first instance.

   2.  The Tribunal accepts that the Applicant is an Iranian national who owned a clothes shop, was dissatisfied with the government and resentful of its treatment of his brother.  It goes without saying, then, that the Tribunal accepts that the Applicant’s brother is a veteran of the first Gulf war, that he was injured, that he received compensation for a time, that the payments stopped and that the cessation was contentious, at least as far as the Applicant is concerned, if not also his brother.

   3.  The Tribunal accepts that the entry interview record is an accurate account on the grievances aired by the Applicant on the occasion of the interview.  It does so on the basis of direct references by the Applicant and on the grounds that many of his later claims about his brother’s problem build directly from the information reported in the record of that interview.

   4.  The Tribunal does not accept as consistent or credible the Applicant’s account of the visit to the veterans’ foundation, the sighting of the file, the clash with the head or the subsequent torture.  The Tribunal does not accept as consistent or credible the Applicant’s claimed reasons for “omitting” this information at the time of his entry interview.  Even dealing with his account of that conflict, as far as possible, at face value, the Tribunal does not accept in any event that the Applicant has satisfactorily argued that the attack upon him was Convention-related; however, the Tribunal stresses that this conclusion is somewhat moot because it is a conclusion in relation to facts it does not accept as credible.

   5.  The Tribunal does not accept as credible or consistent the Applicant’s account of escape from Iran, which he says was first from a hospital where he was imprisoned to the house of a friend, then by train to the coast and then by boat to Dubai.  The Tribunal concludes that this is a fabrication full of loose ends regarding documents and expenses, and inconsistencies regarding contact with his family.  The Tribunal concludes that he fabricated this to portray himself as a person who could not possibly have managed to depart legally from Iran, let alone via an international airport.  The Tribunal does not accept on the Applicant’s evidence that he was any such person. 

   6.  The Tribunal accepts what the Applicant cumulatively claimed or thinks he claimed in his entry interview to have been his true mode of egress from Iran.  It concludes that he departed Iran legally via Mehrabad airport on a valid passport which he had no difficulty in obtaining.  The Tribunal concludes that the Applicant passed all the security checks because although he does not like the Iranian government, he has not voiced his dislike in any way or form that has caused it to care.  The Tribunal concludes that he departed Iran with a real Iranian exit stamp, dated 30 May 2001, in his passport and that, his being a citizen of an Islamic nation, this entitled him to enter Malaysia without a visa.  The Tribunal concludes that the illicit travel and visa details, and all the smuggling, started after that.  The Tribunal intuits that the Applicant threw or gave away his passport, or sold it, probably in order to enter Australia undocumented the better to avoid early turnaround.

   7.  The Tribunal is not satisfied that the Applicant would be treated upon return to Iran even as a person who departed the country illegally, for it concludes on his albeit oddly divulged evidence that he departed legally.  The Tribunal considers it is reasonable to expect the Applicant to obtain a replacement passport, in lieu of the one now “lost”.  The Tribunal can see no reason to be concerned that the Applicant would face punishment in Iran over his travel documentation. 

   8.  In the remote event that the Applicant were a person who departed Iran illegally, although none of his evidence founds a conclusion to the effect that he did, the Tribunal would conclude on the evidence before it that he did not do so for a Convention-related reason.  It would thus conclude that any penalty the Applicant might face for illegal departure from Iran would be applicable under laws of general application and that he would not be treated as a political dissident (DFAT Country Information Report 327/99 refers).

   9.  On the evidence before it, the Tribunal is not satisfied that the Applicant faces a real chance of Convention-related persecution in Iran.  He is not a refugee.

   CONCLUSION

   10. Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Convention. Therefore the Applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.”

   GROUNDS OF APPLICATION

6. The grounds of review were stated as follows:

   “a)There was no evidence or other material to justify the making of the decision that the applicant did not have a well-founded fear of persecution by reason of his political opinion, real or imputed if returned to Iran within the reasonably foreseeable future.

   b)The decision involved an error of law, being an error of law involving the incorrect interpretation of the applicable law of an incorrect application of the law to the facts as found by the Tribunal or both.” 

   MY REASONING

7. The applicant was not legally represented at the hearing before me today.  He made oral submissions to me which, subject to the matter of the Tribunal allegedly putting pressure on him (which I will mention in a moment) were of a factual nature and went to the merits of the Tribunal’s decision.  They did not, in my opinion, raise any question of error of law or jurisdictional error on the Tribunal’s part. 

8. In the course of his oral submissions the applicant complained that the Tribunal had put him “under pressure continuously” because of the fact, as asserted by the Tribunal, that he had mentioned all of his claims at the first interview.  The applicant went to some length to explain to me that due to fear from the Iranian authorities he had not mentioned, at the first interview, his problems with the Buniade-Janbazan.  As he had not mentioned this, he was able to give details of himself and his family.  The applicant invited me to listen to the tape of the proceedings before the Tribunal on this point i.e. the continuous pressure and the content of that pressure.

9. In my view, it is apparent from the applicant’s submissions that he has misunderstood the Tribunal’s reasoning.  At paragraph numbered 3 of its reasons above it can be seen that the Tribunal accepted that the entry interview record was an accurate account of the grievances aired by the applicant at that interview.  What the Tribunal said in that paragraph is that many of the applicant’s later claims about his brother’s problem built directly from the information reported in the record of that interview.  It is apparent from the record of interview, and the applicant acknowledges this to be the case, that at the interview he said in the context of corruption in Iran that one instance of this was when his brother finished serving in the war with Iraq, his compensation payments/pension soon stopped.  The Tribunal well understood that the applicant had not mentioned all his later claims at the first interview.  The point which the Tribunal made was that the applicant was prepared at his entry interview to express dissatisfaction with the Government of Iran (see p 7 of its reasons which is not reproduced above).  In my view, this particular point urged upon me by the applicant does not have the potential to raise any question of error of law or other reviewable error. 

10. I have scrutinised the papers and the Tribunal’s reasons to see whether there was reviewable error.  In the first parts of its reasons the Tribunal set out the relevant law correctly and, in my view, there is nothing later in its reasons to suggest that it did not apply the law as earlier recited.

11. The essential basis for the Tribunal’s decision was simply that it did not believe the applicant.  In particular it did not believe the applicant’s evidence about his outbursts at the Buniade-Janbazan.  The Tribunal’s findings against the credibility of the applicant can be seen in paragraphs numbered 1, 4 and 5 of its reasons set out above.  The Tribunal found, on evidence which emanated from the applicant himself (see the statement made at interview and the further statement referred to at p 10 of the Tribunal’s reasons) that the applicant departed Iran legally via Mehrabad airport on a valid passport which he had no difficulty in obtaining.  It further found that the applicant departed Iran with a real Iranian exit stamp in his passport because although he did not “like the Iranian government” he had not “voiced his dislike in any way or form that has caused it to care.”  It thus disbelieved the applicant’s later evidence that he left Iran illegally.

12. In terms of the grounds of review I am satisfied that there was evidence or other material to justify the making of the decision that the applicant did not have a well-founded fear of persecution by reason of his political opinion, real or imputed, if he returned to Iran within the reasonably foreseeable future. 

13. Neither the applicant’s submissions nor my examination of the papers have disclosed, in my view, any error of law.

14. In my opinion, the Tribunal’s conclusion that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention was open to it on the material before it.

15. In my view, the Tribunal made no reviewable error whether of law or jurisdictional error.

    CONCLUSION

16. As no jurisdictional error, error of law or any other reviewable error has been disclosed, the application will be dismissed with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

A/g Associate:

Dated:             7 December 2001

The Applicant appeared in person:
Counsel for the Respondent:	Mr P R Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 December 2001
Date of Judgment:	7 December 2001