W187/2001 v Minister for Immigration and Multicultural Affairs

[2001] FCA 1204

FEDERAL COURT OF AUSTRALIA

W187/2001 v Minister for Immigration & Multicultural Affairs [2001] FCA 1204

W187/2001 v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 187 of 2001

MOORE J
29 AUGUST 2001
SYDNEY (HEARD IN PERTH)

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIAN DISTRICT REGISTRY	W 187 of 2001

BETWEEN:	W187/2001 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE OF ORDER:	29 AUGUST 2001
WHERE MADE:	SYDNEY (HEARD IN PERTH)

THE COURT ORDERS THAT:

1.   The application is 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 AUSTRALIAN DISTRICT REGISTRY	W 187 of 2001

BETWEEN:	W 187/2001 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	29 AUGUST 2001
PLACE:	SYDNEY (HEARD IN PERTH)

REASONS FOR JUDGMENT

Introduction

1. This is an application by an Iranian male (“the applicant”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) given on 30 April 2001, affirming a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) not to grant the applicant a protection visa.  The criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees of 28 July 1951 as amended by the Protocol Relating to the Status of Refugees of 31 January 1967 (“the Convention”).

   Background

2. The applicant is a twenty-nine year old male from Iran.  He arrived in Australia on 23 December 2000 and on 21 January 2001 lodged an application with the Department of Immigration and Multicultural Affairs for a protection visa under the Migration Act 1958 (Cth) (“the Act”). On 12 February 2001 a delegate of the Minister refused the grant of a protection visa and on 14 February 2001 the applicant applied to the Tribunal for review of that decision.

   The Tribunal’s reasons

3. The reasons for decision of the Tribunal commenced with a discussion of the relevant legislation and what is comprehended by the definition of “refugee” and by the notion of “persecution”. In a section in the decision headed “Claims and Evidence”, the Tribunal summarised the claims made by the applicant in a record of interview with the Department of Immigration and Multicultural Affairs, in his application for a protection visa, written submissions in support of the application for review and in oral evidence given at the hearing.  The Tribunal then set out the applicant's account emerging from that material.  The following is a summary of the account.

4. The applicant is a citizen of Iran, with a wife and two children still resident there.  In 1990-1991 the applicant undertook training which enabled him to gain employment as a welder at a government car assembly company.  He was employed by the company for a period of nine years, from 1991 until 13 September 2000. 

5. In late 1999, the applicant became aware of rumours of theft by employees of the company.  He had friends who worked in the accounts and stores departments of the company, who alerted him to the theft of spare parts.  The applicant explained that as the workers have shares in the company, the theft impacted on them also.  He and his colleagues reported their suspicions to company security, but were told that if they wanted the matter to be investigated they should provide evidence.  They then spent a few weeks compiling a list of the missing stores, and provided it to the security section who undertook to investigate the matter. 

6. Some time later, the applicant and his friends became aware that the investigation was not being carried out.  Employees of the factory were also not being paid their wages at this time. Consequently, in February 2000, in an effort to remedy the situation, he and some friends organised a “series of demonstrations and short strikes”. 

7. On the first occasion the demonstration, which was initially a protest against the theft which was occurring and the non-payment of wages, turned into a demonstration against the government.  Anti-government slogans were shouted and the company called in the government security forces.  In a confrontation between the security forces and the employees the applicant was struck on the head, resulting in an injury that required stitches.  He was hospitalised for one day, and had another two days off work recuperating.  During the next seven months three more strikes took place, in which the applicant participated; one in March, and two in July 2000.  On 13 September 2000 the applicant and his two friends were dismissed for their roles in initiating the strikes.

8. After ceasing his employment with the company, the applicant was warned by the director of the company that the names of he and his two friends had been given to the national security forces, for the parts they played in encouraging their fellow workers to strike.  The applicant’s brother, who had worked for the Mujahadeen, was executed in 1987 and the applicant feared a similar fate for himself.  He went into hiding, travelling to Gilan where an aunt of his lived.  He stayed with her for a period of about one month, during which the authorities went to his home looking for him.  The applicant left Iran illegally, on 5 November 2000, with the assistance of a smuggler who provided a false Pakistani passport and transport over the border at Zahedan.

   The Tribunal’s Findings

9. The Tribunal, in a section in its decision titled “Findings and Reasons”, commenced by referring to the applicant's account of having been involved in the investigation of the thefts.  While accepting that the thefts had taken place, the Tribunal was not satisfied about the applicant’s description of the part he played in investigating them.  The Tribunal said:

   “In my view, it is implausible that a person employed as a welder in a car assembly factory would have the skills required to investigate theft. The fact that the applicant wanted to help his friend who worked in the stores department does not explain the applicant’s ability to do so.  In the circumstances, I  am not satisfied that the applicant was involved in the collection of information about the thefts or in reporting these matters to the company’s security section.”

10. In relation to the applicant’s claim to have enlisted support for and organised the strikes, the Tribunal said:

    “Whilst I accept that the applicant discussed the thefts with fellow workers and had more information about the thefts than was the case for some other workers as he had a friend who worked in the stores area, I am of the view  that the applicant has exaggerated his role in strikes held in his workplace.  I do not accept that the applicant actually organised strikes, or that he was seen as an organiser of the strikes by company management.”

    A person who had been employed by the same company as the applicant gave evidence at the hearing before the Tribunal.  Although he ceased working for the company on 4 April 2000, he stated that he heard about the theft that was occurring in the company, and was also aware of the applicant’s efforts to inform fellow workers of their rights.  The Tribunal, however, stated:

    “Given that the witness left his employment in early April 2000, I do not consider that his evidence is of any assistance to the applicant.  As noted above, I accept that the applicant encouraged other workers to defend their rights. However, … I do not accept that the applicant was seen to be an organiser or instigator of the strikes in the workplace.  I cannot place any weight on Mr Shamsaei’s evidence as corroboration of the applicant’s claim that he was dismissed from his employment in September 2000, or that he is of any adverse interest to the Iranian authorities.”

11. The Tribunal also did not accept that the initial demonstration, which the applicant claimed to have instigated, developed into an attack on the government as depicted by the applicant.  It stated:

    “I do not accept that the applicant was perceived to be an instigator of the strikes, as an anarchist or as against the company or the government.”

    The Tribunal did not find it credible that the applicant was perceived to be anti-government and yet allowed to remain in the employ of the company until three months after the last strike took place.  It said:

    “In my view, it is implausible that the applicant, if he had been seen in this light, would have remained in employment for some seven months after the first – and according to the applicant, most significant – strike.  I am of the view that if the applicant had been considered to have instigated a strike and was seen as being against the government, he would have been dismissed and arrested at the time of the first strike.”

    In response to the applicant’s claim that this was because the company did not want the thefts exposed, the Tribunal said:

    “I do not find this explanation satisfactory.  In my view, a company with some three thousand staff, some one thousand of whom had already been on strike in part because of their concern about theft within the company, could hardly believe that the theft had not been exposed outside the company.

    ..

    Furthermore, I consider it implausible that if the company considered that the applicant was an anarchist who was against the government, he would not have been arrested prior to or at the time of his dismissal.  I do not accept that management would dismiss him and then publicly announce that his name had been given to the government security forces.”

12. In relation to the execution of the applicant’s brother for his Mujahadeen activitiesin 1987, the Tribunal did not consider this would result in the authorities being adversely interested in the applicant.  Particularly as the applicant has been employed in a government company since that time, it did not consider the applicant to have a well-founded fear of persecution for this reason.

13. The Tribunal also addressed the issue of the applicant’s illegal departure from Iran and his claim for asylum.  It accepted independent evidence, however, that the applicant would not be “imputed with a political opinion adverse to the Iranian authorities merely because he has applied for refugee status in Australia.”

14. The Tribunal concluded by finding, on all the evidence, that the applicant does not satisfy the criterion set out in s 36(2) of the Act for a protection visa.

    Conclusion in the application for judicial review

15. The applicant was unrepresented at the hearing and addressed the Court through an interpreter.  The grounds of review set out in the application were in the most general terms.  The applicant conceded that he had no understanding of the Australian legal system and its laws.  The applicant effectively invited the Court to scrutinise the reasons of the Tribunal to ascertain whether any reviewable error was apparent in the approach adopted by the Tribunal.

16. The applicant did not satisfy the Tribunal he was entitled to a protection visa substantially because the Tribunal did not accept critical parts of the applicant's account of his experiences in Iran.  The Tribunal did not accept that the applicant had the prominent role he claimed in the strikes and stoppages nor did it accept that he was of interest to the authorities.  The Tribunal's ultimate conclusion was based, in large measure, on the findings of fact that it made.  In my opinion, the approach of the Tribunal does not manifest judicially reviewable error.  Accordingly the application should be dismissed and the applicant ordered to pay the respondent's costs.  I so order.

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

Associate:

Dated:             29 August 2001

The applicant appeared in person
Counsel for the Respondent:	A Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	21 August 2001
Date of Judgment:	29 August 2001