Somaghi, Ramazan Ali Babaei v Minister of Immigration, Local Government & Ethnic Affairs

[1990] FCA 664

Re: RAMAZAN ALI BABAEI SOMAGHI
And: THE MINISTER OF IMMIGRATION, LOCAL GOVERNMENT and ETHNIC AFFAIRS
No. V G150 of 1990
FED No. 664
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.(1)

CATCHWORDS

Administrative Law - Migration Act - application for review of decisions refusing entry permits and denying refugee status - whether any error made by decision maker.

Migration Act 1958: ss. 6, 6A, 38

HEARING

MELBOURNE

#DATE: 22:11:1990

Counsel for the Applicant : Peter Rose

Solicitors for the Applicant : Erskine H. Rodan

Counsel for the Respondent : Ron Huttner

Solicitors for the Respondent: Australian Government Solicitor

ORDER

The application be dismissed.

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.

JUDGE1

This is an application by Ramazan Ali Babaei Somaghi, an Iranian national, to review decisions of the respondent, The Minister of Immigration, Local Government and Ethnic Affairs, concerning his right to enter Australia and to remain here, and his status as a refugee.

1. This case was heard immediately after the hearing of the case of Heshmati against The Minister. There are many elements of fact and law common to both cases, though no question arises in the case of the applicant, Somaghi, as to whether s. 6A of the Migration Act 1958 ("the Act") applies because it is common ground that he entered Australia so that the prohibitions contained in s. 6A on the grant of an entry permit under s. 6 apply. The case was tried on the affidavit evidence filed on behalf of both parties. There was no cross-examination of any witness. There were no differences between the parties on the primary facts, though there were some differences with respect to the inferences to be drawn from them and the construction to be placed upon them. I turn to the facts.

2. The applicant is an Iranian national aged 28. He arrived in Australia on 6 September 1989 on a fraudulently obtained "photosubstituted" Greek passport in the name of Gergios Fourtoulakis. He was granted a temporary entry permit permitting him to stay in Australia for one month until 5 October 1989.

3. On 7 September 1989 he approached an officer of the Department of Immigration and informed him that he had come to Australia falsely. He was then placed in custody pursuant to s. 38 of the Migration Act 1958 ("the Act"). At an interview on 8 September 1989 at the Immigration Detention Centre in Melbourne, in an application for refugee status made by the applicant and received by the Department on 15 September 1989 and at an interview on 27 September 1989 with an officer of the Department the applicant advanced claims which may be summarised as follows:-
   . the applicant had been imprisoned in Iran from 1987 to 1989 on suspicion of being involved with the Mojahidin and that he had been able to escape while attending a large memorial service following the death of the Ayatollah Khomeini in June 1989;
   . he travelled to Singapore as a stowaway aboard a ship and from Singapore he travelled alone to Australia.

4. The applicant's claims were considered by the members of the Determination of Refugee Status ("DORS") Committee on 27 October 1989. The Committee unanimously recommended that the applicant not be recognised as a refugee within the meaning of the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 ("the Convention") or the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967 ("the Protocol").

5. The delegate of the Minister received a submission dated 3 November 1989 from an officer of the DORS Secretariat giving details of the case history and claims of the applicant and conveying the recommendation of the DORS Committee. After consideration of all the available information it was the view of the then delegate of the Minister that the applicant did not have a well-founded fear of persecution should he be returned to Iran. Accordingly the delegate determined on 10 November 1989 that the applicant was not a "refugee" within the meaning of the Convention and Protocol. The applicant was informed of this decision on 13 November 1989.

6. On or about 14 November 1989 the applicant commenced a hunger strike whilst in the Immigration Detention Centre demanding that the Australian Government overturn immediately the decision not to grant him refugee status and to allow him to remain in Australia. The applicant ended this hunger strike on 20 December 1989.

7. On 23 November 1989 the applicant applied to the Department for a grant of resident status on humanitarian and compassionate grounds. On 27 November 1989 this application was refused by a delegate of the Minister.

8. On 6 December 1989 the applicant's solicitor submitted a letter to the Department requesting reconsideration of the refusal of refugee status to the applicant. In this letter the solicitor for the applicant sought to clarify certain aspects of the applicant's original account of events dealing with the activities of himself and his family in relation to the Mojahidin, his imprisonment and escape from prison. A petition with 52 signatures supporting the granting of refugee status of the applicant was attached to the solicitor's request for reconsideration.

9. Also on 6 December 1989 the applicant sent a letter to the Iranian Embassy in Canberra expressing his opposition to the Khomeini regime and the current Iranian Government. Copies of the letter were also sent by the applicant to various prominent people and organisations including the Prime Minister of Australia, other Ministers of the Australian Government, international and Australian bodies concerned with human rights.

10. The applicant's hunger strike and his claims of suppression by the Khomeini regime were the subject of an item in the SBS News broadcast at 6.30 SBS News on 13 December 1989. On 14 December 1989 an article appeared in the Melbourne Herald newspaper concerning the applicant's hunger strike.

11. On 14 December 1989 the Department received a letter from the applicant asking the "Responsible Authorities" to consider his situation.

12. On 19 December 1989 the DORS Secretariat received a copy of a letter dated 10 December which had been sent to the Department by the Iranian Political Prisoners Action Committee based in London. This body had written in support of the applicant's claim for refugee status and requested the Australian Government to afford the applicant the "basic democratic rights to recognised political refugee status". As a result of these developments the DORS Committee agreed to reconsider the applicant's case. The Department also undertook investigations about the applicant's movements overseas prior to his arrival in Australia. The investigation showed that:-
    . the applicant had departed Iran illegally on 10 April 1988 and arrived in Greece via Turkey on 19 May 1988;
    . the applicant had applied for refugee status in Greece and had been refused. His application in Greece did not mention the Mojahidin activities. Rather in Greece the applicant claimed that:
    

- he was involved in the Labor Union in the industrial town of Alborz;

- he was not politically motivated but only acted upon the grievances of fellow workers when he reported complaints to the management;

- in 1981-82, he was constantly threatened and "frequently beaten up by the regime's henchmen"; - in 1984 he was arrested and detained for questioning. He was also tortured during interrogation and asked to sign a pledge that he would discontinue his role in the Union; - he was released due to pressure brought to bear by his co-workers on his behalf and on guarantee by a relative; - after his release he returned to work. However, after 1 year he began criticising the Khomeini government. One of the criticisms (again, as Union representatives) was of compulsory military service, to which he was ideologically opposed. The authorities then pressured his factory for his resignation so he could be freed for military service; - he eventually handed in his resignation after having worked for the company from 31.1.82 - 23.8.87 as an Electrical Technician;

- shortly after his resignation, he received a summons to report to the Sepah (local security police). He then fled to Tehran where he kept himself hidden for 1 month; - at this time, he also discovered that his guarantor had been arrested, the family home placed under surveillance and his brother arrested and tortured for the purpose of discovering the applicant's whereabouts; - he then departed Iran illegally on 10.4.88 for Turkey and arrived in Greece on 19.5.88;

. the Applicant had arrived in Singapore by air on 1 September 1989.

1. On 13 February 1990 a letter was written to the applicant by the Department informing him of the rejection on 23 November 1989 of his application for grant of resident status on humanitarian and compassionate grounds.

2. On 19 February 1990 the applicant was interviewed by an officer of the Department and the findings of the Department mentioned above were put to him. He denied that they had any basis in fact.

3. On 26 February 1990 the applicant submitted a written statement to the Department acknowledging that he had been in Greece for one year and that he had applied for and been refused refugee status in Greece. He stated that, whilst he had only provided the Greek Government with parts of his case, he had told the Australian Government everything about his case. He stated also that he did not tell the truth to the Australian authorities initially because the smuggler who had assisted him with his travel had told him that if he told the truth he would be deported back to Greece.

4. On 6 March 1990 the solicitor for the applicant submitted further information to the Department in which he noted that:-
   . the applicant had been in Greece prior to flying to Singapore and that he had applied for refugee status in Greece;
   . the applicant was under pressure to lie to the Department about his travel and the circumstances of his departure from Iran because the truth could have resulted in difficulties for his family in Iran;
   . because of the heavy Pasdaran (Iranian Revolutionary Guard) presence in Greece the applicant had "softened" his refugee claims in case the information was referred back to Iran, which may then endanger his family and colleagues;
   . the applicant's sister in Iran had been executed (in 1986, due to her own alleged Mojahidin involvement) and that his brother had been imprisoned; but he does not know what has happened to him;
   . the applicant remains adamant that the information he had provided to the DORS Committee relating to his activities in Iran remains true.

5. On 7 March 1990 the DORS Secretariat put to the solicitor for the applicant that his claim to have been in prison from 1987 to 1989 was inconsistent with the fact that the applicant had left Iran on 10 April 1988 and that this inconsistency had not been addressed by the applicant. The applicant responded that he could not remember the precise dates that he was in prison, but that before entering Greece he had been in Turkey for one month and that prior to entering Turkey he had been imprisoned in Iran for two years.

6. The applicant's claims were reconsidered by the members of the DORS Committee on 9 March 1990. The Committee recommended (3-1) against the grant of refugee status, the dissentient being the representative of the Attorney-General's Department.

7. The delegate of the Minister received a submission dated 12 April 1990 from an officer of the Department detailing the case history and claims of the delegate and conveying the recommendation of the DORS Committee.

8. On 20 April 1990 the Minister's delegate decided that the applicant did not have the status of refugee within the meaning of the Convention and Protocol and refused to grant refugee status to the applicant.

9. On 2 May 1990 a deportation order was made against the applicant signed by a delegate of the Minister. On 14 September 1990 the delegate of the Minister who had signed the deportation order made decisions refusing to grant a temporary entry permit to the applicant and refusing him a permanent entry permit.

10. The delegate of the Minister furnished a statement pursuant to s. 13 of the Administrative Decisions (Judicial Review) Act 1977 at the request of the applicant which, after stating material questions of fact, gave the reasons for the decision of 20 April 1990 to refuse the grant of refugee status to the applicant. Those reasons were in the following terms:
    

"22. The former Minister's Delegate reconsidered the case in the light of all available information.

23. The former Minister's Delegate considered that the new claims advanced did not dispel but added to the initial credibility problems the then Minister's Delegate had with the Applicant's claims of imprisonment and persecution in Iran. He noted particularly the discrepancies in the Applicant's account of:

. the timing and mode of travel to Australia; . discrepancies between the substance of refugee applications lodged by the Applicant in Greece and Australia;

. the Applicant's insistence that he travelled to Australia alone.

24. The former Minister's Delegate noted that in the refugee application lodged by the Applicant in Greece, he had not mentioned any involvement with the Mojahidin, an omission which added further to the then Minister's Delegate's initial doubts that the Applicant ever had Mojahidin links. The Applicant sought to justify the discrepancy by stating that he had softened his story in Greece to protect his family. However, the former Delegate found it difficult to credit that a person who would send a letter highly critical of the Iranian regime to the Iranian Embassy in Canberra could, at the same time, be seriously concerned about his family's safety. The Applicant's explanation for this discrepancy was thus, in the former Delegate's view, unconvincing.

25. Notwithstanding these doubts, the former Delegate noted the Applicant's acknowledgment that he did not have any difficulties with the Iranian authorities until his alleged arrest and detention in September 1987. The Applicant admitted that before his arrest, he did not have a profile sufficient to warrant the prospect of persecution. Although the Applicant later sought to explain his lack of profile by saying that he was in hiding before 1987, this is in direct conflict with his first account.

26. The former Delegate assessed that the Applicant's case rested on his account of the circumstances of his alleged arrest and imprisonment in 1987. In examining the Applicant's alleged experiences in 1987, the former Delegate assessed that there were two possible scenarios:

(1) that as claimed by the Applicant, he was imprisoned for his Mojahidin activities from 1987 until after the death of Khomeini in June 1989;

(2) that, as found by DILGEA ("the Department"), the Applicant was not in prison in Iran but was in Greece when Khomeini died and for many months before the demise of Khomeini in June 1989.

27. Given that the Applicant had admitted that he was in Greece for one year prior to his arrival in Australia in September 1989, the former Delegate had concluded that the Applicant's claim to have suffered persecution as per the first scenario had no basis in fact. The former Delegate made this conclusion in accordance with paragraph 204 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status:

. before reaching this conclusion, the Department, in accordance with the dictates of natural justice, drew the inconsistency to the attention of the Applicant both at an interview on 19 February 1990 and in a subsequent telephone call on 7 March 1990 to his solicitor.

. Despite the Department's advice that it had authoritative information that the Applicant had left Iran in April 1988, he continued to insist that the account given in his initial application in Australia remained true and correct, that is, that he had been imprisoned in Iran for two years (1987-1989) and had escaped from Iran after the death of the Ayatollah Khomeini (June 1989). When challenged directly with the discrepancy in the dates, the Applicant said he could not recall the dates of his imprisonment. . The former Delegate did not accept that the Applicant had provided a plausible or coherent explanation of the inconsistency and, in view of his lack of credibility, was therefore not prepared to extend to the Applicant the benefit of the doubt.

28. The former Delegate assessed the Applicant's claims of his sister's execution and brother's imprisonment in the context of the already apparent credibility problems. However, the former Delegate noted that the Applicant had not claimed or established that he would be imputed with any profile because of these events.

29. In view of this lack of credibility and profile, the former Delegate assessed that both at the time of his departure from Iran and arrival in Australia, the Applicant had not established that a real chance existed of facing persecutory treatment from the Iranian authorities if he were to return to Iran.

30. The former Delegate then considered the issue of whether the Applicant's submission of a letter critical of the Iranian government to the Iranian Embassy raised the prospect of his becoming a refugee 'sur place".

31. The former Delegate was aware that the Refugee Convention has been interpreted as ruling out the possibility of granting refugee status when a person commits actions in the country in which he claims recognition of refugee status solely for the purpose of creating a pretext for invoking fear of persecution. (Judgements of Courts of the Federal Republic of Germany examined in Atle Grahl-Madsen, The Status of Refugees in International Law, (Sijthoff, Leyden, 1966), vol 1, pp 242-245, have shown the limits on the extent to which a person may become a refugee 'sur place').

32. The former Delegate noted that the German courts have considered political actions undertaken by persons in exile under three hearings (outlined below) and that persons falling under headings (1) and (2) may win recognition as refugees, while those falling under (3) may be excluded from the benefit of Convention status:

(1) actions undertaken out of genuine political motives;

(2) actions committed unwittingly or unwillingly (eg as a result of provocation), but which nevertheless may lead to persecution 'for reasons of (alleged or implied) political opinion';

(3) actions undertaken for the sole purpose of creating a pretext for invoking fear of persecution.

33. In the former Delegate's assessment, the Applicant's action did not appear to have been undertaken for political motives or to have been committed unwillingly or unwittingly. Rather, his despatch of a letter to the Iranian Embassy detailing his opposition to the Iranian Government appeared to have been undertaken for the sole purpose of enhancing his claim for refugee status. This conclusion is supported by the timing of the letter: . the former Delegate noted that the letter was sent on the same day as the solicitor's request for reconsideration of the case; . this led him to assess that the act was not committed in 'good faith'.

34. The former Delegate took note of the view of the Attorney-General's Department that German cases on refugees 'sur place' have no value in Australian law, and that the Applicant's action of sending the letter would, by itself, result in the Iranian authorities imputing him with a political profile and he would face persecution if he were to return to Iran. According to the Attorney-General's Department, therefore, the Applicant's fear of persecution was well-founded and he should be given refugee status. However, while the former Delegate acknowledged the reference to German court judgements regarding refugees 'sur place' the German cases were not considered by him to be precedental. Rather, the reference was made to show that such a situation had been dealt with previously in the courts of Germany and that the decision taken had resulted as described above.

35. According to the former Delegate, the Applicant had not established a claim to refugee status before he despatched the letter to the Embassy, neither did he act in good faith in sending a provocative letter to the Iranian Embassy. Accordingly, even if the actions by the Applicant did give rise to a real chance of persecution, the fact that the act did not arise from a Convention related criterion meant that he should not be extended the benefit of the protection of the Convention. In the former Delegate's view, persons who have committed a politically pertinent act solely to seek to bring themselves within the terms of the Convention may not claim good faith. In any event, the former Delegate considered that there was a real chance that such an act would not result in any adverse attention from Iranian authorities. He noted advice that the tactic of sending provocative letters to their embassies by Iranians abroad has been repeated frequently over the years and may be seen, also by Iranian authorities, as nothing more than a final attempt to secure residency in a chosen country.

36. After consideration of all the available information, the former Delegate concluded that the serious inconsistencies in the Applicant's claims placed doubts on the credibility of his claims for refugee status, and that the Applicant had, overall, failed to establish that his claimed fear of returning to Iran was well-founded. Accordingly, the former Delegate determined that the Applicant was not a refugee within the meaning of the Convention and Protocol."

1. On 24 May 1990 the applicant filed his application for an order of review of what were said to be the following decisions of the Minister:-
   "A. Decisions of the Respondent to be reviews:-
   

1. That the Applicant not be granted a temporary entry permit on compassionate and humanitarian grounds;

2. That the Applicant not be granted permanent residence in Australia on compassionate and humanitarian grounds;

3. That there were no strong grounds for the grant of a permanent entry permit to the Applicant notwithstanding that he is a refugee within the meaning of the convention relating to the status of refugees that was done at Geneva on the 28th of July 1981 or that the protocol relating to the status of refugees that was done at New York on the 31st of January 1967;

4. That the Applicant be deported from Australia."

1. Although all relevant decisions were made by various delegates of the Minister no point was taken by the Minister that they are not made parties and that he is the only respondent.

2. It was common ground between the parties that s. 6A of the Act applies in the case of the applicant which distinguishes his case from that of Heshmati. Leaving aside the submissions of counsel for Heshmati based on s. 6A of the Act, the submissions made in both cases attacking decisions not to grant entry permits, whether temporary or affording permanent residence, were substantially the same in each case, though directed to decisions which differed in form. There were some differences other than formal differences which I have considered.

3. Counsel who appeared for the applicant and the respondent in Heshmati were the same counsel, instructed by the same solicitors, who appeared in the matter of Somaghi.

4. As the submissions in each case were substantially the same (leaving aside s. 6A and its implications) my reasons for judgment in the case of Heshmati also dispose of the case of Somaghi so I see no useful purpose in repeating them. For the reasons given in the Heshmati case I would dismiss this application with costs.