SZEUT v Minister for Immigration
[2005] FMCA 939
•14 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEUT v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 939 |
| MIGRATION – RRT decision – Iranian former Revolutionary Guard – fears from Mojahedeen and government – claims not accepted – unreasonable, illogical or irrational reasoning not found. |
Convention relating to the Status of Refugees [1954] ATS 5, art.1F
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.417, 474, 476, 477, 483A, Pt 8
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Sch.1 Pt.2 cl.8, cl.8(2)(b)(ii)
Applicants S1573 of 2003 v Minister for Immigration & Anor [2005] FMCA 47
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30
SZAWW v Minister for Immigration [2003] FMCA 479
SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 773
SZDZV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 416
Wu Guo Xiong v Minister for Immigration & Multicultural Affairs(1997) 45 ALD 127
| Applicant: | SZEUT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1971 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 16 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 14 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr T Silva |
| Solicitors for the Applicant: | Silva Solicitors |
| Counsel for the First Respondent: | Mr G Kennett |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS-
Application dismissed.
Applicant to pay the first respondent’s costs in the sum of $5,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1971 of 2004
| SZEUT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which challenges a decision of the Refugee Review Tribunal (“the Tribunal”) dated and handed down on 28 November 1997. The Tribunal affirmed a decision of a delegate made on 14 January 1997 which refused to grant a protection visa to the applicant. The applicant had arrived in Australia on a visitor’s visa in November 1994, and applied for a protection visa on 18 April 1995.
The long delays in the decision‑making leading to the Tribunal’s decision are not explained in any evidence before me. The subsequent longer delays in the applicant commencing the present proceedings are the subject of numerous affidavits by the applicant and one filed by the respondent. The latter discloses that the applicant previously commenced judicial review proceedings NG1131 of 1997 in the Federal Court on 23 December 1997. His application was dismissed by Emmett J on 22 June 1998, after a full hearing on the merits in which the applicant was represented by experienced counsel. His Honour’s judgment suggests that he considered the Tribunal’s reasons broadly, and was unable to find any error of law or failure to follow required procedures. No appeal was brought.
The respondent now submits that the applicant is estopped from raising at least some of his contentions again in the present proceedings. Since the Federal Court’s jurisdiction in the proceedings determined by Emmett J was confined by the former s.476 of the Migration Act, the extent of any estoppel might raise difficult questions of characterisation of the applicant’s grounds for review now raised. Since, for reasons which follow, I have decided that they fail on their merits, I have not found it necessary to examine questions of estoppel.
For the same reason, it is not necessary for me to address the respondent’s further contention that relief should be refused on the ground of unacceptable delay and other conduct of the applicant prior to the commencement of the present proceedings. The applicant seeks to explain at least some of this, by his pursuit of Ministerial decisions under s.417 of the Migration Act, and by his subsequent involvement in the Ms Lie High Court “class action”. This was ultimately brought to an end by the refusal of his application for an order nisi by Emmett J on 30 April 2004.
Due to constraints of time, and with the agreement of the parties, I deferred receiving evidence and submissions on these matters. It has become unnecessary for me to recall the parties for that purpose.
A consequence of the applicant’s delays is that the present proceeding is not subject to any time limit or other bar on its commencement by reason of the provisions of ss.474 and 477 of the current Migration Act. This is because a proceeding relating to a decision made before the commencement of these provisions on 2 October 2001 is subject to transitional provisions found in cl.8 of Pt 2 of Sch.1 of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). Relevant to the present Tribunal decision, the amendments apply under cl.8(2)(b)(ii) “in respect of judicial review of a decision under the Migration Act 1958 if … as at that commencement, an application for judicial review of the decision had not been lodged” (my emphasis).
In cases similar to the present, the Minister has conceded that if “as at 2 October 2001” an applicant was party to an earlier application seeking judicial review of the present decision of the Tribunal, by reason of being represented parties in Muin or Lie at that date, then the limitations in relation to privative clause decisions do not apply to new proceedings brought in this Court after the commencement. The Minister has conceded that neither this nor the previous Part 8 applies, so that the only basis for review is the powers of the Court under s.39B of the Judiciary Act 1903 (Cth). The concession is referred to in SZAWW v Minister for Immigration [2003] FMCA 479 at [4] and Applicants S1573 of 2003 v Minister for Immigration & Anor [2005] FMCA 47 at [4-8], and was accepted by Stone J in SZDZV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 416 at [12] and by Branson J in SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 773 at [33].
I have therefore addressed the present application on the basis that (subject to the undecided issues of estoppel and discretion) the applicant would be entitled to relief if a ground for writs of certiorari and mandamus can be located. Since all of the grounds argued by the applicant contain allegations of jurisdictional error, this entitlement would follow if I accept any of his arguments.
The applicant’s claims for protection from Australia were sketchily made in his visa application lodged in April 1995. In it, he indicated that he was a 24 year old Iranian national. He claimed that “my life would be in imminent danger if I am to be returned to Iran since I am well known by the opposition groups in Iran, specifically the Mojahedine organisation of Iran”. He said that this was because he had been a supporter of the Islamic regime, had “provided support to the Iranian authorities in the form of providing information about the members and activists” of that organisation, and had “gained a reputation as a spy for the government”. He said that he had received threats which he initially did not take seriously “but recently my enemies have indicated that they are really determined to harm me”. He said: “I am not able to go back to Iran because the Iranian Government cannot protect me. It can not do so because the people who have identified and threatened me live underground”.
The applicant provided no further statements or supporting material, but some more details of his claims emerged in the course of an interview with a Departmental officer conducted 20 months later, in December 1996. A transcript of the interview is in evidence before me. The Tribunal refers in its reasons to what was said in that interview, although it is unclear how it was informed. In the course of the interview, the applicant said that his information-collecting on the Mojahedeen was performed as a member of the Pasdaran (Revolutionary Guards), and that he was also involved in some arrests of members of the Mojahedeen. Much of the delegate’s questioning was directed at whether he might be excluded from Australia’s protection obligations by Article 1F of the Convention relating to the Status of Refugees [1954] ATS 5 due to involvement in crimes against humanity, etc. However, the applicant denied any relevant conduct. I shall refer below to other aspects of this interview.
The delegate in her decision dated 31 December 1996 did not refuse the application under Article 1F, but found that the applicant’s claimed fear of persecution was not well‑founded. She said:
I find it implausible that a member of the Mujahedeen would contact (the applicant) and threaten him, and if such thing did occur I find it implausible that he would not be able to seek the protection of the Iranian authorities when he is an active member of the Pasdaran.
Furthermore, I find it implausible that the Pasdaran would kill (the applicant) upon his return to Iran and that they intimidated (the applicant’s) family members to find out his whereabouts.
The applicant lodged an application for review by the Tribunal on 28 January 1997. He did not present any supporting material until he attended a hearing on 21 October 1997, when he produced one document which he said had been sent to him by fax from his father. In his review application, he said only:
I disagree with the decision because it doesn’t go with my understanding of my people and country which is in a deep oppression. As you might know, I was carrying on political activities prior to coming into Australia. Therefore, it will not be possible to go back to Iran, otherwise I can suffer an execution or life‑imprisonment. I would be more than happy to explain about the current situation in details at the interview.
The transcript of the hearing before the Tribunal is in evidence before me, and is summarised by the Tribunal in its reasons. The applicant gave further evidence about his involvement in Pasdaran activities after leaving school, and told the Tribunal about incidents leading to his departure from Iran. His evidence about this is described by the Tribunal as follows:
The applicant stated that he was contacted by telephone in late January early February 1994 by the Mojahedeen. In this first call, the Mojahedeen caller stated that the Mojahedeen wanted the applicant to give them the names of the applicant’s colleagues, his commander and a rough plan of the Pasdaran’s headquarters. The caller also wanted information about where Mojahedeen suspects were taken after they were arrested. The caller told the applicant that he would be contacted again in ten days time and that if he did not cooperate he would be killed.
The applicant immediately told his commander about the telephone call. The commander told the applicant not to worry too much about it, that the applicant should try and get information when the Mojahedeen called next. The commander told the applicant that as a member of the Pasdaran he would be protected. The applicant’s telephone was tapped by the Pasdaran.
The Mojahedeen called ten days later (on or around February 10, 1994) to the applicant’s home, and made the same request as the first call. The Mojahedeen caller told the applicant to go to “Freedom Square” and wait under the “Freedom Tower” (in Tehran) at 4pm that day. On the order of his commander, the applicant went to the allocated place at the allocated time. A number of Pasdars were placed in discreet places in the Square, to arrest any Mojahedeen members that showed up. The applicant waited for about one hour but no‑one showed up. The applicant and his colleagues made their way back to their barracks.
When the applicant and his Pasdars colleagues were crossing the road (at a Zebra crossing) near their barracks, a white Chevrolet sped up and hit the applicant and sped away. The applicant’s colleagues tried to chase the car (on foot) but were unable to catch it. The applicant was immediately taken to a hospital where he was diagnosed as having a concussion, broken nose and his teeth were broken. The applicant was kept in hospital for about four days. The applicant had five days off work. The Pasdaran assigned body‑guards to the applicant and the applicant stayed at the Pasdaran barracks. The applicant claimed that the driver of the car was from the Mojahedeen and that he was being targeted.
The Tribunal asked the applicant why he had not mentioned this incident before given its apparent gravity. The applicant stated that the officer from the Department had not asked about it at his Departmental interview, and he had been very nervous at this interview.
The Tribunal in its reasons summarised relevant country information, before giving its “Findings and Reasons”. It will be necessary for me below to set out some significant passages from this. The Tribunal indicated its general reasoning at the start:
The Tribunal is not satisfied, overall, with the applicant’s credibility. Although the Tribunal is satisfied that the applicant was a member of the Pasdaran – in spite of the contradictory information between the information provided in the application form and the applicant’s oral claims, the Tribunal is not satisfied with other aspects of the applicant’s claims.
Its reasoning then dealt with the following matters:
·It concluded that it was not satisfied that, what it called the “crucial incident he raised at his Tribunal hearing regarding his being hit by a car that the applicant claims was driven by the Mojahedeen”, “actually occurred”. In support of this conclusion, the Tribunal referred to the fact that these claims were “raised so late in the processing of his refugee application”, and to what it thought was an implausibility of the claims when measured against country information that the MKO (i.e. the Mojahedeen) “is not currently very active in Iran”.
·The Tribunal noted that the applicant said at the hearing that “his fear of the Mojahedeen has ‘almost vanished’”.
·In relation to the applicant’s claims that his greatest fear in returning to Iran now was from the Pasdaran, the Tribunal found that it was “implausible … that the Pasdaran would suspect a valued member of their ranks of having suddenly developing MKO sympathies, simply because of a failure to return to Iran after having been abroad”.
·The Tribunal then considered whether the applicant would also have a well‑founded fear of persecution as a result of “departing Iran ‘illegally’ (using bribes to facilitate his departure)”. It said that it was “satisfied that the treatment the applicant would undergo upon return to Iran – as the result of his illegal departure – does not amount to persecution within the meaning of the Convention, because, without more, punishment for illegal departure is an ordinary enforcement of a state’s migration law and does not of itself make a person a refugee”.
·It then addressed the applicant’s claimed fear arising from information that his father was interrogated by the Pasdaran and documents of the applicant seized. It considered that this fear was “not well founded” for the purposes of the Convention.
·It concluded: “Given the serious reservations the Tribunal has in relation to the applicant’s credibility, and the implausibility of the applicant’s claims, the Tribunal cannot be satisfied that the applicant has a real chance of being persecuted for a Convention reason in Iran in the foreseeable future, and is therefore not satisfied that the applicant’s fear of persecution for a Convention reason is well founded”.
The applicant’s further amended application which was filed at the hearing by his Solicitor, Mr Silva, attacked numerous aspects of the Tribunal’s reasoning. It contained 7 grounds which Mr Silva elaborated in his written and oral submissions. Many of his submissions were difficult to follow, and I did not always understand the general ground of judicial review upon which he relied. However, I shall endeavour to address them, by grouping them by reference to the section of the Tribunal’s reasons to which they related. I shall do this in the sequence in which they arise when reading the Tribunal’s reasons, rather than in their numerical sequence.
As will appear, I do not accept the factual basis of any of the submissions. It is therefore unnecessary for me to explore legal issues of whether any of them separately or in combination would give rise to jurisdictional error.
Ground 2: The Tribunal made jurisdictional error as it has been unreasonable in the sense of being “Wednesbury Unreasonable” in holding that the incident of being hit by a car did not occur.
This ground challenged one aspect of the Tribunal’s reasoning in the following paragraph:
The applicant failed to mention both in his written application and at interview with the Department, and in his written application to the Tribunal, a crucial incident he raised at his Tribunal hearing regarding his being hit by a car that the applicant claims was driven by the Mojahedeen. The applicant stated that it was this incident that made him fear for his life because the Pasdaran “could not always protect” him and that sooner or later he would be killed. The applicant was unable to give a satisfactory explanation as to why he had not raised this crucial evidence previously, stating only that he had been nervous at his Departmental interview, and that he had not been asked about the incident. The applicant (sic: Tribunal) finds this explanation to be lacking in credibility and is not satisfied that the incident claimed by the applicant, and raised so late in the processing of his refugee application, actually occurred.
As I understand Mr Silva’s submission, it was that the Tribunal acted unreasonably by basing its concern about the lateness of this claim in part upon the fact (which Mr Silva did not challenge) that the incident had not been mentioned during the applicant’s interview by the Department officer on 11 December 1996. He argued that, if the Tribunal had properly considered the transcript of that interview, it would have concluded that the applicant had been wrongly denied an opportunity to tell the officer about the incident, and would not have declined to accept the applicant’s explanation for not mentioning the incident during the interview.
In support of this argument, he took me to the following exchange in the transcript of the Departmental interview, and submitted that it showed that the interviewer wrongly “diverted the applicant from giving the information about the car incident”:
Q: Why did you escape from Iran?
A: Because as I have brought it in my case, I got telephone calls from Mujahedeen, they called me and said that they knew in what kind of work I was involved in and that I were a member of the Sepah and I was involved in collecting intelligence etc. They called and told me that they wanted me to work with them; otherwise I would lose my life. I asked them about the kind of cooperation they were demanding. They were asking for the rough plan of our base and the names of those who were working with me in this connection.
Q: Wouldn’t the Pasdaran protect you?
A: I officially transferred whatever I received to my superior and they wanted to protect my life. But as you know, very prominent people with a great number of guards have been assassinated. There is no security against terror.
…
There are many logical and legal difficulties facing the submission that this aspect of the Tribunal’s reasoning establishes jurisdictional error. I shall not pause to consider the legal difficulties, since in my opinion it has no substance in its factual basis. I do not myself read the above passage in the transcript of the interview, nor any other passage in the transcript, as revealing any diverting or preventing of the applicant from referring to this significant incident. More importantly, I consider that it would have been well open to the Tribunal to form the view that the applicant had several opportunities during the interview to refer to the incident if, as he claimed to the Tribunal, it had provided the major impetus for his decision to flee Iran. One opportunity was in response to the question set out above, and I consider that it was open to the Tribunal to read the applicant’s response as appearing to provide a complete explanation for his “escape from Iran”.
There were also other opportunities for the applicant to draw attention to the claimed incident in oral or written statements to the delegate. These included early invitations: “Do you have any further material you wish to give me in support of your application?” and “Are there any mistakes in your application which you wish to correct?”. The applicant also had ample opportunities before and after his Departmental interview, to recount the incident in a written statement or submission.
I do not accept that the Tribunal acted irrationally, unreasonably or in any other way contrary to its statutory duty to review the delegate’s decision, by drawing an adverse conclusion in relation to the applicant’s credibility in part from its opinion that he had been given an opportunity at the time of the Departmental interview to refer to an incident crucial to the history upon which he claimed refugee status.
Ground 5: The Tribunal made jurisdictional error as it dealt with the applicant’s fear for fleeing from Iran in an unreasonable manner to the extent of it being Wednesbury unreasonable.
Ground 1: The Tribunal made jurisdictional error as it made findings (in relation to credibility of the applicant) for which there is no evidence. The Tribunal found that the applicant had claimed that the Mujahedeen pursued him and his Pasdaran colleagues while they were walking back to the Pasdaran head quarters.
These two grounds attacked the Tribunal’s reasoning in the following paragraph, which followed immediately after the paragraph extracted above:
The Tribunal also finds the applicant’s claims of fleeing Iran because he feared for his life from the Mojahedeen (MKO) to be implausible. The independent evidence above (at p11‑12) indicates that the Iranian authorities have made every effort to crush the Mojahedeen and to this end, have arrested and executed large numbers of known and suspected supporters and members. Whilst the government still regards the MKO as a major threat to security and stability, by and large, the MKO is not currently very active in Iran.
Given the lack of activity by the MKO in Iran, coupled with the very effective operation of the Iranian security apparatus in crushing the MKO, it appears implausible that a member of MKO would make contact on two occasions by telephone with a member of the Pasdaran as claimed by the applicant, would then suggest a public meeting with a member of the Pasdaran as claimed by the applicant, and then proceed, in broad daylight, to pursue members of the Pasdaran, and in particular the applicant, while he and his colleagues were walking back to the headquarters of the Pasdaran headquarters. The Tribunal finds these claims to be implausible and therefore not credible.
Mr Silva’s argument in support of Ground 5 was that it was irrational for the Tribunal to have based its opinion as to the implausibility of the applicant’s “hit‑and‑run” claim upon an opinion that there was “lack of activity by the MKO in Iran, coupled with the very effective operation of the Iranian security apparatus in crushing the MKO”. The irrationality arose because, he argued, the Tribunal had itself made a finding that the MKO was “active”. Such a finding was implicit in the Tribunal’s adoption of country information that the MKO “is not currently very active” (emphasis added).
I do not accept this argument. It involves giving the language used by the Tribunal a reading which is contrary to the High Court’s injunction in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277 and 291. I am unable to read the Tribunal’s reasoning as proceeding upon inconsistent findings. On a fair reading of its reasons, I consider that the Tribunal has probably taken from the country information’s reference to “is not currently very active” an opinion that it was inactive rather than that it was active. I consider that it was open for the Tribunal to draw from the country information an opinion that the MKO was unlikely to make an appointment “in broad daylight” and then engage in a hit‑and‑run attack on a Pasdaran member such as the applicant. I can find nothing “Wednesbury unreasonable” about this aspect of the Tribunal’s reasoning.
Turning to Ground 1, Mr Silva took me to a transcript of the hearing before the Tribunal so as to establish that the Tribunal’s conclusion of implausibility was also based on mistaken factual findings about the applicant’s evidence concerning the hit‑and‑run attack. I shall not set out the relevant transcript in full – it appears at pages 7 and 8 of the transcript.
I accept that a careful reading of the transcript suggests that the applicant said that the incident occurred on the day following his claimed Mojahedeen appointment in Freedom Square, rather than on the day of the appointment and at the time when the applicant said: “I came back home with the person responsible for me”. It is, however, not entirely clear whether the Tribunal proceeded upon a mistake in this respect. Moreover, Mr Silva did not give emphasis to the possible mistake by the Tribunal as to the day on which the incident occurred, as having a material bearing on the reasonableness of its reasoning as to implausibility.
Mr Silva’s attack was upon the Tribunal’s suggestion that the applicant had said that he was in company with other people when he was hit. He argued that this suggestion was found in the Tribunal’s reference to the incident occurring: “while he and his colleagues were walking back to the headquarters of the Pasdaran”. He took me to the following passage in the transcript:
A: … At that night I stayed at the garrison because I was scared, then on the following day I was accompanied home with my Sepahi friends to see my family. When I found my family safe, I told my friends to go and everything was o.k. and after that I came to the conclusion that for the present, the safest place for me would be my garrison. After they left, because I told them they could take the vehicle with them, I was just crossing the road, so I could find a way to go back to garrison, and the street had a normal, quiet traffic, there were only few in the distance of 50 to 60 metres or a bit more from me, when I was passing the zebra crossing, there was a white Chevrolet that all by a sudden speeded up towards me. I was shocked for a few seconds, as I tried to pull myself from the street, I was hit by the car and thrown off. In that accident most of my teeth were broken. My head and my nose as well. Fortunately my commander had left without my knowledge, a few of my friends to keep an eye on me.
Q: Did they take you to the hospital?
A: Yes, they did.
Q: How long were you in hospital for?
A: About 4 days. And after that I began the treatment of my teeth, then I thought there wouldn’t be a second time for me.
Q: Did you take any time off work?
A: Those guys who were assigned to protect me, chased the car, one of them chased the car by a motorbike, and the other two took me to the hospital. But unfortunately they couldn’t catch up with the car.
…
Once again, the transcript is not perfectly clear, nor is it clear that the Tribunal intended to make a finding that the applicant claimed to have been in close company with a “colleague” when he was hit. If the Tribunal intended only to draw attention to the applicant’s claim that his colleagues were in the vicinity, then it would have been correct. It is clear that the applicant claimed that at the time colleagues had been assigned “to protect me” and that these people immediately “chased the car”.
Even if the Tribunal made the mistaken finding as argued, I am far from satisfied that this had such significance as to establish “Wednesbury unreasonableness” affecting the Tribunal’s opinions about the credibility of the applicant in relation to this incident and generally. The more significant point relied upon by the Tribunal, and not challenged in Mr Silva’s arguments before me, was that the Tribunal thought that it was unlikely to the extent of being “implausible” that the MKO would engage in a hit‑and‑run attack in broad daylight in a public street on a Pasdaran member who was under the protection of his colleagues. I consider that this reasoning was open to the Tribunal on the evidence before it, and was not so irrational nor unreasonable as to establish jurisdictional error.
Ground 3. The Tribunal made jurisdictional error as it took irrelevant consideration into account in assessing the overall credibility of the applicant: Yusuf.
This ground attacked the paragraph appearing immediately after the paragraph which I have addressed under Grounds 5 and 1:
The Tribunal also notes that the applicant does not now seriously rely on these aspects of his claims, having stated that his fear of the Mojahedeen has “almost vanished”. Nevertheless, the fact that the applicant has sought to make these claims, in spite of having retreated from them, remains a significant problem for his overall credibility.
Mr Silva argued that the Tribunal’s reasoning in this paragraph was irrational because it treated the fact that the applicant no longer had fears from the Mojahedeen as a reason for disbelieving his claim about the hit‑and‑run incident. As he pointed out, this would not follow logically, since a period of three years had elapsed between his arrival in Australia and the Tribunal’s decision.
I consider that this argument relies upon a misreading of the Tribunal’s reasoning. I do not understand the first sentence in the above paragraph as intended to provide a further reason for the Tribunal’s credibility concern. Rather, the Tribunal is noting that, since the applicant has little current fear of the Mojahedeen, it was no longer directly relevant to his satisfaction of the Convention definition to decide whether the incident upon which he claimed in the past to have feared the Mojahedeen actually occurred. The point made by the Tribunal was, however, that its credibility finding about this claim “remains a significant problem for his overall credibility”.
I consider that this point was not illogical, irrational or unreasonable, but was open to be made by the Tribunal in the course of its fact‑finding.
Ground 7. The Tribunal made jurisdictional error as it took irrelevant considerations into account in deciding what the punishment would be to the applicant for illegal departure.
Ground 6. The Tribunal made jurisdictional error as it made a finding without evidence which was critical to the ultimate finding that the applicant was not a refugee. (Alternatively the Tribunal was Wednesbury unreasonable in dealing with the issue of the consequence of the applicant leaving Iran without the knowledge of Pasdaran).
Mr Silva’s arguments in support of these grounds addressed the following paragraph in the Tribunal’s reasoning. It is important, when reading it, to understand that it followed the Tribunal’s rejection of the applicant’s separate claim “that the Pasdaran would suspect a valued member of their ranks of having suddenly developing MKO sympathies, simply because of a failure to return to Iran after having been abroad”. The Tribunal also noted that, since arriving in Australia, “the applicant has not been involved in political activities of any kind, indicating that in spite of his “enlightenment”, the applicant has chosen not to participate in any anti‑Iranian government activities and does not have a deep commitment to doing so in the foreseeable future”. It then, following on these findings, addressed whether he had a Convention basis for other fears arising from his departure from Iran:
The applicant has claimed departing Iran “illegally” (using bribes to facilitate his departure). Whilst this claim is consistent with the information above (at p12), the Tribunal is not satisfied that this gives rise to a well founded fear of being persecuted within the meaning of the Convention. There is some evidence of corruption in Iran – including the trial of the head of customs at Tehran airport for graft, and “widespread corruption, economic mismanagement and abuses of power” (Ibid, Reuter Business Briefing, 14 March 1996), the Tribunal accepts the applicant was able to use bribery to obtain his passport and exit Iran illegally. Iranian law imposes a fine or prison sentence of up to 12 months for illegal departure. However, the most likely penalty for an Iranian who has left Iran illegally is a fine. A prison sentence seems to be rarely used except when the person refuses to pay the fine, or in cases where the person’s illegal exit was prompted by a wish to evade justice (Ibid, DFAT Iran Country Profile, March 1996). The Tribunal is satisfied that the treatment the applicant would undergo upon return to Iran – as the result of his illegal departure – does not amount to persecution within the meaning of the Convention, because, without more, punishment for illegal departure is an ordinary enforcement of a state’s migration law and does not of itself make a person a refugee (See Wu Guo Xiong v MIMA (1997) 45 ALD 127). There is nothing in the applicant’s evidence to suggest that in this case any punishment would be for reasons of actual or imputed political opinion rather than ordinary enforcement of a migration law.
In support of Ground 7, Mr Silva argued that the Tribunal’s reasoning was flawed because it had misread the DFAT country information when referring to offences under Iranian law concerning “illegal departure”. He argued that the section of this report, paragraph 1.7.6 which described “Penalties for Illegal Departure” did not apply to members of the armed forces, whose situation was referred to in two paragraphs under the heading 1.7.5 “Overseas travel by members of the armed forces”. As a result of its misreading of this information, the Tribunal had taken into account irrelevant material and its decision was Wednesbury unreasonable.
In support of Ground 6, Mr Silva argued that the Tribunal made a further mistake in its reading of that information. He argued that it showed that a Pasdaran member would not be entitled to obtain a passport, and that the Tribunal therefore erred by assessing his fears in this respect against “civilian” passport offences. Its reasoning that any prosecution would not have a Convention relationship was, therefore, flawed.
I shall not pause to consider the legal foundations for the argument that such mistakes would result in the invalidity of the Tribunal’s decision, since I am far from satisfied that the Tribunal misread the DFAT information. Indeed, I consider that Mr Silva’s arguments both proceed upon a misreading of that information.
Paragraph 1.7.5.1 of the DFAT report says that “there is a ban on overseas travel for conscripts and regulars of the armed services, who are not permitted to hold current passports. However regular serving members can apply for special exemption on a case‑by‑case basis to take a private overseas trip”. Their passport then receives a “red stamp exit stamp”. Contrary to Mr Silva’s arguments, I do not read this information as clearly having a bearing on the applicant as a member of the irregular “Pasdaran” organisation. In its terms, it appears to relate only to “conscripts and regulars of the armed services”.
My reading is confirmed in the next paragraph, 1.7.5.2, which appears to deal with the situation of Pasdaran members: “If a member of the Pasdaran (Islamic Revolutionary Guard Corps) with a current passport attempted to leave Iran through a legal exit point without such permission, he/she would be quickly detected both through the lack of an exit stamp and the computer check done on all Iranians travelling overseas”.
The DFAT report then, in paragraph 1.7.6.1, refers to the effect of an illegal departure, without any apparent distinction between travellers with or without a military background: “While the law states a fine or prison sentence of up to 12 months for illegal departure, the most likely penalty for an Iranian who has left Iran illegally is a fine”. It goes on to consider the effect of having applied for asylum abroad.
I am not satisfied on my own reading of the information relied upon by the Tribunal in the passage attacked under these grounds that it has made any findings of fact which were not reasonably open to it. I am not persuaded that it has taken into account any information, which, as a matter of law, was irrelevant to its assessment of the applicant’s claims to fear persecution on return to Iran.
Ground 4. The Tribunal made jurisdictional error in making a finding, without evidence (alternatively Wednesbury unreasonable or seriously irrational or seriously illogical) that the applicant’s father was not clearly of interest to Iranian Authorities.
This ground attacked the Tribunal’s reasoning in relation to the applicant’s fears arising from the fact that “the applicant’s father has informed the applicant that the Pasdaran have taken his father for interrogation, and have confiscated the applicant’s documents apart from one document”. The Tribunal reasoned:
All that this document confirms is that the applicant worked for the Pasdaran (as already accepted by the Tribunal) and was given a three month assignment by the Pasdaran, from May‑August 1991. This document makes no mention of an intention by the Pasdaran to punish or persecute the applicant. This document therefore has no probative value in establishing the applicant’s claim of being persecuted upon return to Iran, and therefore the Tribunal does not accord it weight. The fact that the applicant’s father was able to send the applicant this document indicates that the applicant’s father was not held by the Iranian authorities for any period of time, and is clearly not of interest to the Iranian authorities. The Tribunal is satisfied therefore that the applicant’s fear arising from his father being questioned is not well founded for the purposes of the Convention.
Mr Silva argued that there was irrationality in the Tribunal’s reasoning that the father was not of interest to the Iranian authorities from the fact that he was able to send a document to the applicant by facsimile.
I am not persuaded by this argument. I consider that it was open to the Tribunal to assess this element in the applicant’s claims by reference to the father’s willingness and ability to communicate openly with the applicant. I do not consider that this part of the Tribunal’s reasons demonstrates such serious flaws in its decision‑making as to come within the “illogical reasoning” error referred to in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 per Gleeson CJ at [9], McHugh & Gummow JJ at [36‑37], and Kirby J at [81], [128] and [137]; and in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 per Gummow and Hayne JJ at [38].
Conclusion
For the above reasons, I am not persuaded that the applicant has made out any grounds for the relief sought in his application, and I therefore dismiss the application.
I certify that the preceding forty‑seven (47) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 14 July 2005
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