W194 v Minister for Immigration and Multicultural Affairs

[2001] FCA 1283

FEDERAL COURT OF AUSTRALIA
W194 v Minister for Immigration & Multicultural Affairs [2001] FCA 1283

Migration Act 1958 (Cth)

W194 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 194 of 2001

FRENCH J
10 AUGUST 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 194 of 2001

BETWEEN:	W194 Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	FRENCH J
DATE OF ORDER:	10 AUGUST 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent's costs of the proceedings.

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	W 194 of 2001

BETWEEN:	W194 Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	FRENCH J
DATE:	10 AUGUST 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant is a citizen of Iran who arrived in Australia on 22 December 2000.  He lodged an application for a protection visa on 8 January 2001.  A delegate of the Minister made a decision refusing the grant of his visa on 22 February and on 23 February he lodged an application with the Refugee Review Tribunal for review of the delegate's decision pursuant to the Migration Act 1958 (Cth) ("the Act").

2. After a hearing on 11 April, the Tribunal made a decision on 1 May that it was not satisfied that the applicant was a refugee.  It affirmed the decision not to grant a protection visa to the applicant.  The evidence before the Tribunal is summarised usefully in the outline of submissions which have been put before the Court by his legal representatives who provided their services on a pro bono basis, for which the Court is grateful.

3. The evidence before the tribunal was that:

   (a)By reason of his education and membership of the health profession as a dentist, the applicant was aware of the disease and dangers to health that the condition of water in Ahvaz where he worked posed to members of the community. 

   (b) He attended a meeting in August 2000 requested by health professionals and arranged by local health authorities. 

   (c) Some months after this meeting government authorities had not done anything to improve the water situation in Ahvaz and he was involved in discussions with other members of the health profession to go on strike in order to bring attention to the water problems.

   (d) He stated that the evening after discussions with other members of the health profession, members of the security department in Iran took him to a building where they threatened him in relation to his involvement with the water problems. 

   (e) He was released at 3.30 am after it was discovered he was a relative of a security officer in Tehran and after he had signed a declaration that he would no longer involve himself in activities against the government in relation to the water problems. 

   (f) His brother and a relative in the security forces in Tehran helped to arrange for him to leave Iran because his relative in the security forces had been given orders that if anyone was caught talking against government procedures, they would be killed.

4. The Tribunal, after reviewing in detail the claims and evidence advanced by the applicant at his arrival interview, in support of his application for a protection visa, in his departmental interview and at the hearing before the Tribunal, turned to its findings and reasons for its findings.  It referred to his claim that if he were to return to Iran, he will be persecuted because he tried to instigate a strike in relation to water quality problems in Ahvaz.  He has also indicated that he would be at risk as an intellectual who had been educated overseas.

The Tribunal said that in its view significant aspects of his claims were inherently implausible.  In particular it considered his claims in relation to his alleged detention and release from detention to lack credibility.  It did not consider him to be a credible or reliable witness. 

1. The Tribunal accepted that the applicant is a dentist who trained in India, and that there is a problem with water quality in Ahvaz.  It accepted that he attended a meeting in relation to this which was hosted by the Ministry of Health, and that he considered the government was not taking action quickly enough, and that he discussed this with health professional friends.  However, the Tribunal did not accept that he tried to instigate a strike or that he was detained for this reason or at all.

2. The Tribunal expressed the view that the applicant was of no interest to Iranian authorities at the time he left Iran, and that he is of no interest to them currently.  It was of the view that he had fabricated his claims in this regard in an attempt to create for himself the profile of a refugee. 

3. In supporting its findings the Tribunal referred to three considerations.  First, it thought it inherently implausible that he would take upon himself the role of instigating a strike of health professionals in Ahvaz.  It referred to the fact that at the relevant time he had had only a short period of employment as a dentist and only a short period of residence in Ahvaz, that period being from January to October 2000.  Nothing in his evidence suggested that he had had a history of political activism in relation to any issue. 

4. As an employed dentist, with a short history of employment in this capacity and a short period of residence in Ahvaz, he could not be described as a leader in the local community of health professionals.  In the Tribunal's view, the applicant's profile was not one which would lead to his views being acted upon by other health professionals in his locality. 

5. Secondly, even if he had suggested that a strike would be an appropriate option, the Tribunal considered it implausible that he would be detained for the reason he had claimed.  It noted that no strike had even been tentatively organised let alone taken place.  While the applicant claimed that his friends were going to talk to other health professionals, there is no evidence to suggest that such discussions would have led to any action taking place.  

6. The Tribunal noted the independent evidence which indicated that when mass public demonstrations concerning water quality in Abadan were held in that city in July 2000, people were only arrested if they were involved in property damage during rioting.  There was other independent evidence said to suggest that Iranian authorities had paid attention to grievances raised by striking workers.  In the Tribunal's view, it was highly implausible that the Iranian security forces would take any adverse interest in the applicant merely because he had suggested that health professionals go on strike. 

7. Thirdly, the Tribunal considered that the applicant's account of his alleged detention and release from detention was confused and illogical.  The problems with his evidence led the Tribunal to conclude that his account of the incident lacked credibility.  He claimed that when he mentioned the name of a relative, highly placed in the security forces, to his interrogator he was released on an undertaking that he would not continue with his activities.  He claimed that he was then advised by his brother that their relative had said he would have to leave Iran because his file had only been temporarily closed and that he would be rearrested three days later.  He claimed that the person who interrogated him released him in order to do his relative a favour.  The applicant had claimed that his file was temporarily closed.    However, the Tribunal observed he had not satisfactorily explained what would have triggered his rearrest three days after his release from detention if, as he claimed, he was released after signing an undertaking to cease his activities.  In the Tribunal's view, if he had been detained and the person who was interrogating him wanted to do a favour for his relative, it was incomprehensible that he would release him on the basis that he would automatically be rearrested three days later.  If the interrogator had released him on that basis, and that his name would be on the black list at the airport within two weeks, as asserted, this would put the interrogator at risk of being investigated as to why he had released the applicant in the first place.  In the Tribunal's view, if the applicant were of continuing interest to the Iranian authorities, it would be obvious that the person who had interrogated him had released him when he was not supposed to do so.  Any investigation into this would then reveal the relative's role.  In the Tribunal's view it was implausible that these two officials would take such a risk. 

8. In the Tribunal's view, if the interrogator had wanted to do the applicant's relative a favour, it would have been logical to get him to sign an undertaking and then not rearrest him unless he breached it.  Another logical option would have been to release the applicant on no conditions and not keep a file on him.  Indeed, if the applicant's relative is so highly placed, as claimed, he could presumably have arranged for the applicant to be released without any further adverse consequences. 

9. Overall, the Tribunal considered that the problems with the applicant's evidence concerning his alleged detention and release from detention were such that it could not be satisfied that he was detained at all or was of any interest to the Iranian authorities at the time he left Iran.  It was also not satisfied that his father was detained and questioned following his departure from Iran. 

10. The Tribunal also considered and rejected a contention that he was at risk in Iran because he was an intellectual who was educated abroad.  That issue is not before me on this application.  The Tribunal also considered briefly and dismissed any concern that he would fear persecution in Iran because he had applied for refugee status in Australia.  Again, that issue is not before me on this application.

The amended application for review asserts that there was no evidence or other material to justify the making of the decision, that being the ground of review under s 476(1)(g) of the Act. This was said to be on the basis that the Tribunal determined the application on the basis that the applicant's evidence lacked credibility, having reached that view by contrasting his evidence with the Tribunal's own assessment of the likelihood of relevant events having taken place without such assessment being supported by either evidence or other objective material. On the view I take, the no evidence ground which is the sole ground relied upon in this case, is not made out. I might add that in that connection I have examined the passages relied upon and the subject of criticism by counsel for the applicant, and I am unable to perceive any other basis upon which they would disclose a ground of review.

There was criticism of the Tribunal's judgment that it was inherently implausible that the applicant would take upon himself the role of instigating a strike of health professionals in Ahvaz.  In the written submissions it is observed that the Tribunal based its reasons on his short period of employment and residence in Ahvaz.  Such a conclusion, it said, was speculative as there was nothing on which to base the finding and that fact did not exist. 

The actual period of residence was a matter of evidence before the Tribunal.  This was said nevertheless, not to provide any justification for a finding, that his view would be of any less influence than others.  On the contrary, it is said the fact that he was educated abroad and had recently moved into the locality might suggest that he would be more aware of the extent of pollution in water, that he would be more determined to take action than members of the local community who might have adapted to or accepted the problem, that he would be less aware of local government's attitude to people who questioned or challenged government authorities and that he would be the kind of fresh blood needed to inspire or convince others to take action. 

1. These are all arguments which are entirely legitimate as arguments in support of an inference contrary to that drawn by the Tribunal. However, they do not go to the question whether there was material upon which the Tribunal could arrive at the conclusion which it did and which was a critical conclusion in relation to its rejection of his application for a protection visa. Were it able to be shown that there was no evidence upon which the Tribunal could draw the inference that it did then it is arguable that the ground of review for which s 476(1)(g) provides would be made out and alternatively that error of law would be made out. In any event, in my opinion, the threshold necessary to engage those grounds has not been made out in that case. It was open to the Tribunal to reason, as it did, from the period of employment and from his status that his account of instigating a strike of health professionals in Ahvaz was not to be accepted.

2. The Tribunal also considered as a fall-back position or the alternative hypothesis the assumption that he had suggested that a strike would be an appropriate option.  Its finding in this respect was criticised by counsel for the applicant on the basis that the Tribunal had found, as it did, that there was no risk to the applicant because no strike had been organised, no strike had taken place, there was no evidence to suggest a strike would eventuate and that in the mass public demonstrations in Abadan people were only arrested if they were involved in property damage during rioting and that there was other independent evidence suggesting that Iranian authorities had paid attention to grievances raised by striking workers. 

3. It was put for the applicant that there is no evidence to suggest that the strikes would not have been held if he had not been arrested.  On the contrary, the evidence that the Iranian authorities listened to the demands of the striking workers and the fact that he was in a position to instigate such strikes suggests it is more probable that the strikes would have occurred.  These strikes would clearly be seen as direct meddling in governmental affairs, especially as the government had already pledged to take action.  Accordingly, instigation of a strike might even be seen as an attempt to incite anti-government sentiment. 

4. There are difficulties, I think, with some of the Tribunal's reasoning, particularly its reasoning from the reaction of the authorities to demonstrations about water quality in Abadan in July 2000, to their likely reaction to a person seen as instigating or inciting a strike by health professionals providing services to the community.  It is certainly arguable that the second is a more threatening scenario than the first from the point of view of an authoritarian government.   However, this is a matter of competing inferences which are open. Given that the alternative inference is open and is also related to other factors concerning the inconsistencies, confusion and illogicality of the account of the applicant's alleged detention and release the Court cannot interfere with the conclusion which the Tribunal has come to, that the applicant is not at risk of persecution on account of his alleged instigation of the strike if he were to be returned to Iran.   

5. I am left with the position that the no evidence ground which is raised in respect of that alternative finding by the Tribunal is also not made out.  For these reasons the application must be dismissed, with costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated:              September 2001

Counsel for the Applicant:	Ms E K Montgomery
Solicitor for the Applicant:	Messrs Tottle Christensen
Counsel for the Respondent:	Mr A A Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	10 August 2001
Date of Judgment:	10 August 2001