Soleimani v Minister for Immigration and Multicultural Affairs

[2001] FCA 886

FEDERAL COURT OF AUSTRALIA

Soleimani v Minister for Immigration & Multicultural Affairs [2001] FCA 886

Migration Act 1958(Cth) ss 476 and 478
Federal Court Rules O 54B r 2

MASHALLAH SOLEIMANI v MINISTER FOR IMMIGRATION and MULTICULTURAL AFFAIRS
S 46 of 2001

BRANSON J
ADELAIDE
12 JULY 2001

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 46 of 2001

BETWEEN:	MASHALLAH SOLEIMANI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	12 JULY 2001
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        The decision of the Refugee Review Tribunal be affirmed.

2.        The applicant pay the costs of the respondent.

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 46 of 2001

BETWEEN:	MASHALLAH SOLEIMANI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	12 JULY 2001
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

INTRODUCTION

1. By an application filed on 24 April 2001 Mashallah Soleimani (“Mr Soleimani”), a national of Iran, has sought judicial review of a decision of the Refugee Review Tribunal dated 29 March 2001.  By its decision the Tribunal affirmed a decision of a delegate of the respondent that Mr Soleimani is not entitled to a Protection (Class XA) Visa.

2. A criterion for the grant of a protection visa is that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (together referred to as “The Refugees Convention”).  Australia will have protection obligations under the Refugees Convention to Mr Soleimani if he is 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 grounds upon which an application may be made for review by this Court of a judicially-reviewable decision of the Tribunal are identified in s 476 of the Migration Act 1958 (Cth) (“the Act”). Section 478 of the Act requires an application for review by the Court of a judicially-reviewable decision to be made in the manner specified by the Federal Court Rules. O 54B r 2 of the Federal Court Rules requires the application to be in accordance with Form 56. Form 56 provides for the grounds of the application to be identified. Mr Soleimani’s application is made on a printed Form 56. However, his application makes no reference to any of the grounds of review identified in s 476 of the Act. It was not contended by the respondent that the application was for this, or any other, reason incompetent. I therefore proceed on the basis that the application is competent.

   Factual Background and Claims

4. Mr Soleimani arrived in Australia by boat.  He was detained on arrival as an unlawful non-citizen.

5. Although the reasons for decision of the Tribunal state that Mr Soleimani arrived in Australia on 10 April 2000, his initial interview is recorded on a form headed “Department of Immigration and Multicultural Affairs Initial Interview For Unauthorised Boat Arrivals” which is dated 7 April 2000.  The record of his initial interview includes the following questions and answers:

   “Why did you leave your country of nationality?  I want to be free.  Everyday is the same in Iran – go to sleep/work – The future is not guaranteed in Iran.  As what happened to my father, he worked for 28 years and after he finished, he did not have any reward.  The future is not sure.  There is no freedom of speech, no promotion, no attention to the younger generation by the Government.  I don’t want to be a slave, I want to have dignity in the sports, and reputation with life.  The law is not respected in my country – The government has caused this to happen.

   Why did you come to Australia?  It is a good and calm quiet country.  The people who visit Iran tell us it is a good country and a country who accepts refugees.  Refugees [indecipherable] respects human rights.  I am a human being and Australia accepts my rights as a person.  Also the law works in Australia.

   Do you have any reason for not wishing to return to your country of nationality?  Iran - I don’t want to live there because the life is the same everyday.  I would like to see my parents, but I don’t want to live there.  If I am respected as a human being, I can do what I want, if I go back to Iran, there is no respect for me, unless I am a very rich person.  It will be the same as before.  If I have something I will be respected, if I don’t I won’t be respected in Iran.”

6. Mr Soleimani was interviewed again on 9 April 2000.  On that occasion he spoke of an inability to speak directly to the authorities, of being detained for a period of two days two years ago when speaking to his girlfriend and of subsequently being acquitted by a court, and of corruption in the administration of the law generally in Iran.

7. It appears that Mr Soleimani was held in detention in the Adelaide Remand Centre.  On 5 December 2000, with the help of an interpreter and a registered migration agent, he applied for a Protection (Class XA) Visa.  He made a written statement in support of his application.  In this statement he claimed that his father had worked for nearly twenty-eight years with the SAVAK, the secret service of the Shah’s regime.  He further claimed that at the beginning of the revolution his father was arrested and imprisoned for a term of twenty-five years, although he was in fact released after seventeen years as part of a political amnesty.  He stated that he was dismissed from school after eleven years of study after defending his father’s actions and opposing the revolution.  He confirmed in this statement that he had left Iran because of his concerns for human rights and freedom of speech.  He said that in June 1999 he was a bystander when university students demonstrated against the government and that he subsequently provided shelter in his family’s house to Mohammad Reza Kashani (“Mr Kashani”) who was afraid for his safety.  He claimed to have assisted Mr Kashani to leave the country on a fake passport and to have so upset Mr Kashani’s mother by doing so that she threatened to report him to the authorities.

   Reasons of the Tribunal

8. The Tribunal accepted that Mr Soleimani is a national of Iran.

9. The Tribunal was unable to decide whether Mr Soleimani was being truthful or not when he claimed that his father was a SAVAK officer.  Mr Soleimani had claimed before the Tribunal that he was too fearful to mention this in his first interview but the Tribunal noted that before his first interview he had believed that Australia respected human rights.  The Tribunal concluded that it was possible that Mr Soleimani’s father was employed in some capacity by SAVAK and it proceeded on that basis.

10. The Tribunal noted that Mr Soleimani did not claim to have suffered harassment arising from his family background after he left school, or to have been denied employment on this ground.  It noted independent evidence that in recent years the authorities in Iran have adopted a far more relaxed attitude towards people associated with the Shah’s regime.  The Tribunal was satisfied that Mr Soleimani was not persecuted during at least his final eight years in Iran because he was a member of the family of a SAVAK employee.  It was further satisfied that he was not denied any basic rights in Iran during at least the last eight years in which he live there, and was generally able to express his views and conduct his life without politically motivated discrimination by the authorities.

11. The Tribunal was not satisfied that Mr Soleimani attended the university protests in June 1999 or assisted Mr Kashani to hide and then leave Iran.  However, because it could not reject these aspects of his claim with certainty, it considered whether, if he did do these things, he therefore faces a real chance of persecution should he return to Iran.  The Tribunal noted that Mr Soleimani had not even been questioned by the authorities by the time that he left Iran in February 2000, and that there was nothing before the Tribunal to suggest that the authorities were aware of his role in the protests or of his assistance to Mr Kashani.  The Tribunal was not satisfied that the Iranian authorities currently regard Mr Soleimani as a person who was politically active in the June 1999 protests or who helped a political activist escape from Iran.  The Tribunal was not satisfied that the Iranian authorities have suspicions about his political views because of his father’s background.

12. The Tribunal also rejected Mr Soleimani’s claims that he would suffer persecution if returned to Iran because he left that country illegally.  The Tribunal doubted that he had left Iran using another person’s passport.  However, even if he had, the Tribunal concluded that he would not suffer any significant problem on his return and, in any event, any penalty which he might suffer would flow from the enforcement of a law of general application and would therefore not amount to persecution.

13. As to Mr Soleimani’s opposition to the political regime in Iran, the Tribunal noted that independent evidence suggested that expression of a diversity of views is increasingly allowed in Iran and grumbling about the government is tolerated.  It was satisfied that Mr Soleimani’s views “are typical of those which are tolerated in Iran today” and that the limitations that do exist in Iran on the right to express political views were not such as to amount to persecution so far as he is concerned.

14. The Tribunal concluded that it was not satisfied that Mr Soleimani is a person to whom Australia has protection obligations under the Refugees Convention and that he was therefore not entitled to be granted a protection visa.

    CONSIDERATION

15. Mr Soleimani, who appeared before the Court without legal representation, expressed concern with respect to two past mistakes of interpretation.  One, he indicated, had lead to an error of a few days in his date of departure from Iran and the other gave rise to the inference that he did not know the true date of the University protests in 1999.  It is sufficient to note that the Tribunal did not attach any significance to the precise date of Mr Soleimani’s departure from Iran and that, although it noted the discrepancy with respect to the date of the University protests in 1999, it was prepared to act on the basis that this might have arisen in the course of the interpretation of Mr Soleimani’s evidence.

16. Mr Soleimani also expressed concern at having been held in jail and of having been interviewed in that uncongenial environment. The circumstances that led to Mr Soleimani’s being detained in jail (or possibly in the Adelaide Remand Centre) are not known to me. However, I do not consider that they could give rise to a ground upon which the decision of the Tribunal may be reviewed by this Court (see s 476 of the Act).

17. Mr Soleimani also expressed the view that p 26 of the Tribunal’s reasons for decision “does not make any sense whatsoever” and suggests that the member’s mind was occupied with other issues and that she was “not really talking about [him].”  I do not accept Mr Soleimani’s view about p 26 of the Tribunal’s reasons for decision, although I do acknowledge that the second to last sentences on the page, which had a complex construction, could give rise to difficulties of comprehension.  I have summarised the effect of p 26 of the Tribunal’s reasons for decision in [12] and [13] above.  Nothing appearing on p 26 of the Tribunal’s reasons for decision gives rise to a ground upon which the decision may be reviewed.

18. The other issues raised by Mr Soleimani, including his wish to place further evidence before the Court, all went to the merits of his claim to be entitled to a protection visa. He referred to his involvement with Mr Kashani; to his fear that if he returns to Iran he will die; and to his resentment of being detained in Australia, a country in which he thought that he would obtain help. None of these matters gives rise to a ground of review which this Court is entitled to entertain. The further evidence which Mr Soleimani wished to place before the Court was evidence intended to enhance the credibility of the claims made by him before the Tribunal. This evidence was not before the Tribunal. The Court does not itself have the power to determine whether any person is entitled to a protection visa; its jurisdiction is limited to reviewing the decision of the Tribunal on one or more of the grounds identified in s 476 of the Act. It is for the Tribunal to determine, on the evidence before it, whether an applicant for a protection visa is entitled to such a visa. No useful purpose would have been served by my adjourning the hearing to allow Mr Soleimani to place further evidence before the Court. For this reason I declined to do so.

19. I am not satisfied that the Tribunal failed to observe any procedure that it was required to observe, that it acted outside of its jurisdiction, that its decision involved an error of law or that there was no evidence or other material to justify the making of its decision.  Nothing before me suggests that the decision of the Tribunal was induced or affected by fraud or actual bias.  To the contrary, the reasons for decision of the Tribunal reveal a careful consideration of the claims made by Mr Soleimani and a willingness to acknowledge the difficulties that attend the making of firm findings of fact concerning the validity of claims made by putative refugees.

20. The decision of the Tribunal must be affirmed.  Mr Soleimani is to pay the respondent’s costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:       11 July 2001

Counsel for the Applicant:	Applicant appeared in person
Counsel for the Respondent:	Mr Roder with Ms Southcott
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	9 July 2001
Date of Judgment:	12 July 2001