W212 v Minister for Immigration and Multicultural Affairs

[2001] FCA 1445

FEDERAL COURT OF AUSTRALIA

W212 v Minister for Immigration & Multicultural Affairs [2001] FCA 1445

MIGRATION - refugee - Refugee Review Tribunal - Iranian national - newspaper articles critical of regime - unpublished - newspaper closed - concern re seizure of draft articles - Tribunal finding of no risk of persecution by reason of articles - whether risk of persecution by reason of membership of group of editors and writers - case presented to Tribunal on a different basis - no error or law - application dismissed

W212 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W212 OF 2001

FRENCH J
10 OCTOBER 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W212  OF 2001

BETWEEN:	W212 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	10 OCTOBER 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application be 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 AUSTRALIA DISTRICT REGISTRY	W212  OF 2001

BETWEEN:	W212 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

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

REASONS FOR JUDGMENT

1. The applicant is an Iranian national who arrived in Australia by boat without lawful authority on 27 December.  He was interviewed by an officer of the Department of Immigration and Multicultural Affairs on 31 December.  In the course of that interview, according to the record of it which appears from the materials, he was asked:

   "Why did you leave your country of nationality (Country of Residence)? - Because I do not have my basic human rights in Iran."

   He was asked by way of a supplementary question:

   "Can you explain further. - The authorities in Iran will only practice the law if they want to for eg, I wrote an articles (sic) in social & political problems in Iran and these articles were censured &  not permitted to be published, whilst some of my articles…"

   There is then a portion of the record crossed out.  It went on:

   "The articles were written for Asrazadeghan newspaper about Akbar Ghanji and religious matters including several other articles.  Because of this the newspaper was shut down by the authorities ie, the supreme leader Khameni ie the security agents ETALAAT.  The editor was arrested & is in prison & I felt my life was in danger.  All this happened around April 2000.  My personal details were submitted with the articles which were confiscated by the authorities, also the crack down on the opposition newspaper has been severe recently so this is why I fear for my life.  Basically this is the main reason why I left Iran, the situation described has scared me.

   …

   Do you have any reasons for not wishing to returning to your country of nationality (residence)? -it's not possible to live in a country when you know it's (sic) political, social & economical problems.  The Iranian society is based on lies & corruption."

2. In a written submission by migration agents in support of his application for a protection visa received on 21 January 2001, it was said under the heading, "Why I left my country":

   "In 1999, I wrote some articles about social problems faced by people in Iran and about the shortcomings of our city council.  The weekly reformist magazine, Sobhe-Karoon, published my articles.  This magazine only goes out to the people of Khozestan.  I also wrote some political articles about how politics and religion should be kept separate for the Assre-Azadegan newspaper, which used to go out all over Iran.  This newspaper was banned shortly after I wrote my controversial articles, and my articles were not published.  However, my name and address was on them.  The editor of the paper was jailed alongside some of the article writers.  15 newspapers were all banned around the same time.

   In May, 2000, Mr Sayyadnejad, the director of the protection section of the Ahwaz Steel Industries, called me to his office and warned me that I should correctly apply the Islamic standards.  Three months later, I was called for the second time to his office.  He was questioning me about the hunger strike by the company's workers.  He tried to connect me with the worker's (sic) protest, although I did not have anything to do with them.  I denied all accusations, but he continued to warn me again.

   In July-August 2000, the law of press changed and every writer became responsible for their own individual articles.  Since my name and address was in the newspaper office, I decided to leave the country before I was caught and imprisoned.  I feared for the safety of my life so I payed (sic) a man 8000,000 Toman who had some connections with some officials at the airport to arrange for me to pass though customs without any problems.  I flew to Malaysia and then to Indonesia.  From in Indonesia, I paid another smuggler $US1,400 to arrange my trip to Australia by boat.  That same smuggler took mine and many of the other peoples belongings from us."

   Under the headings "What I fear might happen if I go back to my country":

   "I fear I will be imprisoned if I go back to Iran"

   and under the next heading: "Who I think will harm or mistreat me if I go back:"

   "The authorities - the Iranian government."

   Then the next heading, "Why I believe they will harm or mistreat me if I go back:"

   "Because of my controversial articles and my political opinions about the separation of religion and politics which are against the government of Iran."

   "Why I believe that the authorities in my country will not protect me if I go back:"

   "It is the authorities that are persecuting me, so I cannot expect protection from my country."

3. The delegate of the Minister made a decision on 27 February refusing to grant a protection visa to the applicant and on 1 March the applicant applied to the Refugee Review Tribunal ("the Tribunal") for a review of the delegate's decision.  That application was supported by a written submission and oral evidence at the hearing.  In the written submission put up by his migration agents and dated 24 April, there was a point by point response to various findings of the delegate, although, of course, the procedure before the Tribunal necessarily involves a hearing de novo.

4. It was submitted that while other writers were not arrested when Assre-Azadegan's editor was arrested, this did not mean that all the writers on that paper went unpunished.  Since there was a power struggle at the time between two major factions of the Iranian government, particularly on the media issue, journalists and writers did not have a safe and secure future in Iran.  However, due to their political beliefs they chose to continue their activities until the time they had to stop.  This was why the applicant stayed in Iran and tried closely to follow changes in the media legislation with the hope that he would be able to continue his activities.

5. It was also submitted that the applicant had never claimed he was fearful for his own life because of the publication of his articles.  Rather, he had tried to explain his involvement in two newspapers as a writer.  His fear of persecution was based on a change in media laws in which every writer would be held accountable for his or her article.  This was contrary to the previous law in which the editor of the newspaper and the individual writer was accountable for the entire content of the paper.  It was also submitted that the applicant had started his journey as a writer by writing articles with humanitarian themes.  However, he did not stop there.  These articles were only the beginning.  He continued his writing with articles containing a very serious critical theme of Islam and the Islamic republic.  The articles mentioned in his interview strongly opposed the Islamic regime and Islamic values promoted by the regime. They were sent to the newspaper office.  It was closed down and confiscated by the Iranian authorities.  The normal practice of the Iranian authorities was to search for incriminating evidence when raiding a place like that.  It was quite reasonable for the applicant to take safety measures in order to protect himself when he learnt about this incident.  However, he did not want to flee the country immediately.

6. The applicant closely observed the battle over the media legislation going on between the reformists and the conservatives.  He finally decided to flee the country when media legislation was passed in the parliament under which writers were held accountable for their articles.  Since he had previously sent three articles in which he highly criticised the Islamic Republic, he knew he was going to face persecution if he stayed in the country.  That was why he left before it was too late.

7. In relation to his departure and its implications for his return, it was submitted that while he was able to travel out of Iran without difficulty, that would not be the case if he were forced to return.  Repressive conditions in Iran would make it extremely difficult to verify the fate of those forcibly returned.  Many times only those able to return to the first country of asylum after deportation could verify the persecution faced by those deported back to Iran.

8. It was also submitted, having regard to independent country information relied upon by the applicant's migration agents, that he would have attributed to him an anti-government political opinion due to his articles being found among other materials in the Assre- Azadegan building.  It was submitted that the subsequent search for him and the arrest and interrogation of his father about his whereabouts was strong evidence that his fear of persecution was objective and real.

9. The Tribunal decided, on 24 May, to affirm the decision not to grant a protection visa.  It referred to the claims in evidence that I have already mentioned and then went on to refer to what passed at the oral hearing.  The applicant had given evidence largely consistent with his statement.  His main concern had related to three articles he sent to the newspaper in Teheran.  He produced a receipt relating to the delivery of the articles.  The receipt was dated about mid-February 2000.  He said the newspaper was closed down by the authorities shortly after he dispatched the articles.  The first article was about the role of Islam in the world and discussed the use and abuse of religion and the need to separate religion and politics.  The second article was about potable water and the failure of the President to deliver on his promises and the third was about the rule of the current president.  However he told the Tribunal that the articles were not printed.

10. In relation to the Tribunal's question about the lack of any action against him in the next six months, he said that it took some time for debate at the legislative level about closure of newspapers to occur.  He referred to a case of an editor who had been arrested eight months after the closure of the newspaper which the editor had worked for.  He told the Tribunal that he had some articles published before those sent to the newspaper.  However, they had not caused him any specific problems.  He also stated that while he provided information about his situation at work, this was not the main issue.  The main issue was the articles which he had written.  The main problem was the change in the law which meant the authorities could bring allegations and charges against anyone.  Anyone who wrote an article would be defined as a writer, and if he had not come to Australia he might have been one of those detained.

11. After his arrival in Australia and after his interview with the Department he first learned that his father had been detained. His father told him he had been detained for several days and interrogated about his whereabouts.  Again, when he was asked why the authorities would be seeking him so long after the newspaper was closed down, he said it took some months for the debate before the arrests started.  He said the timing for an arrest was not predictable.  He said he had had everything in Iran and had he not had this problem he would not have departed.  It was also submitted that the applicant's father's detention would indicate that his articles had been found.

12. The Tribunal referred to country information about repressive press laws.  It accepted that there had been a crackdown on the press starting in April 2000.  It found, however, the applicant was neither a journalist nor an editor.  It noted, without making a finding, that he claimed to have submitted three articles that he found following the crackdown could cause him problems. However, he had not had any problems by late November 2000, almost seven months after the newspaper to which he had sent the articles had been closed down.  It was the Tribunal's view that had he been of interest to the authorities in their crackdown on the press they would not have waited seven months to make a move against him.  According to him they had his address and it would have been a simple matter to track him down if the articles were discovered and if he were of concern to the authorities.  The Tribunal therefore did not accept that the authorities had any interest in the applicant.

13. The Tribunal also referred to the applicant's claims that some people had been arrested many months after the closure of papers for which they worked.  However, it inferred from country information that only editors or journalists capable of being of influence were of interest to the authorities.  In the Tribunal's view, the applicant as an accountant in an iron foundry in Ahwaz would not be perceived as someone of influence.  The same applied to leaders who had been murdered.  These had been mentioned by the applicant's adviser in submissions.  The Tribunal understood that people of influence would pose a threat to authority in Iran and understood that those in power are often reluctant to relinquish it.  However, the applicant was not in this category.  He had no involvement in politics and was not a journalist.  In the circumstances, the Tribunal did not accept that the authorities would be interested in chasing after him even if they found some articles.  It also did not accept his argument that the authorities did not react earlier because of political debate that took a number of months to play out.

14. Independent country information from August 2000 indicated that many journalists and editors had been gaoled since April 2000.  The applicant did not leave the country until November 2000.  If he were of interest, he would have been detained at an earlier stage.  The Tribunal did not accept that the applicant's father was detained one and a half months after his departure.  That was even further removed in time from the submission of the articles and the closure of the newspaper.

15. The Tribunal accepted that the applicant had published some articles in a local paper but noted his evidence that he had not had any problems as a result of that.  He had also referred to some problems at work but at the hearing did not maintain these issues as issues of concern to him or that his questioning about workers' actions had anything to do with the articles he sent to the newspaper.  The Tribunal noted that he left Iran with a legal Iranian passport.  It referred to the consequences of applying for asylum in Australia and concluded that the country information indicated that that did not bring with it any serious consequences.  As a result, the Tribunal found there was no real chance he would face persecution because he no longer had his passport and because he applied for asylum in Australia.  So on all those bases the Tribunal found he did not have a well-founded fear of persecution.

16. The applicant filed an application for an order or review of the Tribunal's decision on 6 June.  Mr Sheiner, who appeared pro bono for the applicant and whose assistance in that regard is greatly appreciated by the Court, filed a minute of amended application for an order of review.  That application set out two grounds:

    "(a)The Tribunal's decision contains errors of law that involve an incorrect application of the law to the facts as found by the Tribunal or an incorrect interpretation of the applicable law.

    PARTICULARS

    (i)The Tribunal failed to consider whether there was a real chance that the Applicant would face persecution in the event that he returned to Iran and continued to express his political opinions through his writing.

    (ii)The Tribunal failed to consider whether the Applicant had a well-founded fear of persecution as a member of a social group, namely reformist writers, journalists and editors in Iran.

    (iii)The Tribunal erred in law in not finding the denial of a freedom of expression in Iran in the case of the Applicant amounted to persecution.

    (b)The Tribunal acted in excess of jurisdiction.

    PARTICULARS

    (i)The Tribunal failed to consider whether there was a real chance that the Applicant would face persecution in the event that he returned to Iran and continued to express his political opinions through his writing.

    (ii)The Tribunal failed to consider whether the Applicant had a well-founded fear of persecution as a member of a social group, namely reformist writers, journalists and editors in Iran.

    (iii)The Tribunal erred in law in not finding the denial of a freedom of expression in Iran in the case of the Applicant amounted to persecution."

17. The applicant also filed submissions.  The substance of the first submission, which was in the forefront of his case, was that the Tribunal had erred in law by focussing solely on whether he faced persecution by reason of his submission of articles to the Asrah Azadagan newspaper and whether there was a real chance that he  would be arrested for those articles.  It was said to have failed to consider, as it was obliged to do, whether having regard to the oppressive press laws in Iran there would be a real chance the applicant, given his political opinions and his activities as a writer, would face persecution in the form of gaol and detention in the foreseeable future on his return to Iran.

18. There is no doubt that the Tribunal focussed upon whether the applicant was of any interest to the authorities by reason of articles which he said he had submitted to the newspaper but which were not published.  It made no findings as to whether he had submitted such articles to the newspaper.  However it had regard to the time lapse between the alleged closure of the newspaper and the departure of the applicant from Iran without any action being taken against him.  On the strength of that fact and its consideration of evidence of the arrest of journalists and editors within shorter periods, after closure of their newspapers, the Tribunal did not accept that the authorities had any interest in him.  It was of the view that the only people of interest were editors and journalists because they were people of influence.  The applicant was not in that category, had no involvement in politics and was not a journalist. That was the basis upon which the Tribunal dealt with the applicant's contentions.  It also did not accept the contention that his father was detained one and a half months after his departure. Plainly the Tribunal made a finding adverse to the credibility of the applicant, at least in that respect, and adverse to the applicant's hypothesis of persecution in relation to the articles as to which it made no finding.

19. The applicant did not, in my opinion, put to the Tribunal a case that the applicant would be expressing political opinions if returned to Iran which would put him in harm's way.  The focus of the applicant's contentions, notwithstanding the reference to the subject matter of the articles, was entirely upon the consequences of his having written them and submitted them for publication and the possible consequences of that past conduct were he to be returned to Iran.  He certainly did not present through the written material as somebody contending that he would be seeking to exercise the expression of his political opinions if returned, which would subject him to persecution.  It is not surprising, therefore, that the Tribunal did not have regard to that hypothesis in its reasons and, in my opinion, it did not err in law in failing to do so.  That basis for rejecting, as I do, the primary contention also underpins the rejection of the second contention that the applicant is to be regarded as part of a particular group of reformist writers, journalists and editors in Iran.  That is again a prospective basis for persecution.  It cannot be sustained having regard to the Tribunal's finding that the authorities have no interest in the applicant by reference to his past conduct, which I cannot impugn.

1. The question whether denial of freedom of expression in Iran in the case of the applicant amounted to persecution is again a prospective matter.  There is no doubt a generally repressive law affecting freedom of expression in Iran.  In my opinion, however, the existence of a generally repressive law of that kind does not of itself establish a discriminatory denial of freedom of expression to a particular social group or to persons by reference to their race or ethnic origin or religious or political opinions which could amount to persecution.  In the circumstances, I am not satisfied that any error has been made out on the part of the Tribunal and the application will be dismissed with costs.

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

Associate:

Dated:               October 2001

Counsel for the Applicant:	Mr P Sheiner
Counsel for the Respondent:	Mr P Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	10 October 2001
Date of Judgment:	10 October 2001