W219/01A v Minister for Immigration and Multicultural Affairs

[2001] FCA 1667

FEDERAL COURT OF AUSTRALIA

W219/01A v Minister for Immigration & Multicultural Affairs [2001] FCA 1667

Migration Act 1958 (Cth) s 476

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited

W219/01A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
W 219 of 2001

RD NICHOLSON J
30 NOVEMBER 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W219 of 2001

BETWEEN:	W219/01A APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	30 NOVEMBER 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs of the application.

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	W219 of 2001

BETWEEN:	W219/01A APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	RD NICHOLSON J
DATE:	30 NOVEMBER 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant brings an application seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 24 May 2001. The Tribunal affirmed a decision of the delegate of the respondent not to grant to the applicant a protection visa. This application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”).

2. The applicant is a Sunni Muslim of Arab ethnicity who came to Australia from Iran.  He arrived in Australia on 12 October 2000. 

   Relevant provisions

3. Under s 36(2) of the Act a non- citizen in Australia is eligible for a protection visa if that person is someone: “… to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.” The Refugees Convention is the Convention Relating to the Status of Refugees 1951 and the Refugees Protocol is the Protocol Relating to the Status of Refugees 1967. The expression “Convention” will be used to mean the Convention as amended by the Protocol. The same criterion appears in Sch 2 of the Migration Regulations in which item 785 and 866 both include the same criterion.

4. Article 1a(2) of the Convention defines a “refugee” to be any person who:

   “…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”.

5. The reasons specified in Article 1a(2) are known as Convention reasons.  The existence of such reasons threatening the life or freedom of a refugee in a territory to which it is proposed he or she be expelled or returned gives rise to a protection obligation prohibiting such expulsion or return as a consequence of Article 33 of the Convention.

   Tribunal’s findings and reasoning

6. The principal claims made by the applicant were as follows:

   (a)He is a Muslim of Arab ethnicity from Ahwaz in the South of Iran and his father was a well known tribal leader of the Bani Turuf tribe.

   (b)During the Iran-Iraq war the authorities were suspicious of the applicant and his family, as Arabs from an Arabic region of Iran.  His father was arrested and held under house arrest for 2 years.  The applicant’s father was forced to change his religion from that of a Wahabi Sunni. 

   (c)The applicant was banned from leaving Khozistan between 1988 and 1990.

   (d)The applicant was banned from University during his study of medicine in 1992 and did military service from 1992 – 1994.  He did not get his military card until 1996 and therefore could not get an identity card, work or get married.

   (e)The applicant was detained for 4 months and tortured after anti-regime slogans were written on the walls, even though he did not take part.

   (f)After his release in 1998 the applicant was sent to internal exile in Mako by the intelligence service and was accused of belonging to the Arab Khalq.

   (g)The applicant’s half brother, who was involved with the publication of a student paper at university, was arrested after a student demonstration and was subsequently sentenced to death for a murder he did not commit.  The applicant assisted his brother to escape.

   (h)The applicant then went into hiding before leaving Tehran on a genuine Iranian passport.

7. The Tribunal’s principal findings were as follows:

   (i)The applicant’s father and members of his family may have had problems with the regime in the 1980’s.

   (ii)As the applicant’s evidence was unconvincing and because of other problems with his credibility, the Tribunal did not accept the claims of denial of military service card, expulsion from university, detention or exile.

   (iii)After his return from exile the applicant’s father had no significant problems with the regime.

   (iv)It was not plausible the applicant would be seen as a supporter of Khal-e-Arab, or face serious discrimination on the basis of race or imputed political opinion.

   (v)Although the applicant’s father had changed religion he had not been forced to do so.

   (vi)The applicant’s half brother Issa had not been involved in student politics, the publication of a newspaper nor charged with murder because of his involvement in such things.

   (vii)The applicant’s claims and evidence about assisting Issa to escape are false.

   (viii)The applicant did not leave Iran illegally and even if he did the evidence before the Tribunal did not suggest persecution for a Convention reason on return.

   (ix)The evidence supported the conclusion that ordinary Iranians, including the applicant, who did not have a political profile did not face a problem for making a protection visa claim.

   (x)In relation to two witnesses’ evidence:

   Mr Saardi’s evidence was inconsistent with the applicant’s.  Mr Saardi did not know the applicant when he got married or did military service and therefore did not know him as well as first claimed.  The Tribunal did not accept Mr Bagherinai’s evidence.

   Grounds of application

8. No grounds of the application were specified on behalf of the applicant, who was unrepresented and has no legal training. In the course of his submissions it was arguable that matters to which he referred might arguably give rise to the following grounds, namely procedural non-observance in the terms of s 476(1)(a); the existence of actual bias in terms of s 476(1)(f) and the absence of evidence or other material to justify the making of the decision in accordance with ss 476(1)(g) and (4).

   Submissions

9. The applicant addressed the Court at some length in relation to issues which he considered relevant to a review of the decision of the Tribunal.  The respondent in written submissions contended only that there was no error of law or other ground of review emanating from the reasons of the Tribunal.  In oral submissions the respondent addressed the specific issues raised by the applicant and made further general submissions. 

10. The issues raised by the applicant were:

    (1)As to the applicant’s father:

    (a)The Tribunal wrongly claimed he had said his father was the head of the Arabic tribe and was not involved in any political group.

    (b)It also wrongly claimed that the applicant said after his father returned from exile he did not say anything against the regime.

    (c)Had his father done so he would have been punished like all Arabic people in Iran.

    (d)The Tribunal wrongly concluded his father could make his life better without changing his religion.  That change had only occurred by force and was a sacrifice by his father to reduce discriminatory pressure on the family.

    (e)The Tribunal also wrongly concluded his father was arrested by mistake and did not have serious problems with the authorities because he came back from exile.  He asked how could his father possibly have a normal life and a successful business.

    (f)The Tribunal must have been biased to reach these views.

    (2)The Tribunal could not refuse to conclude the applicant had experienced discrimination in his education and employment.

    (3)The Tribunal should have discovered regimes like the Iranian regime had many excuses to get rid of all opposition.

    (4)In relation to his stepbrother:

    (a)he had offered to produce a videotape, photograph or any written document but the Tribunal had said it would not be necessary.

    (b)This showed bias by the Tribunal.

    (c)The Tribunal did not want a statement from a witness who had escaped to America.

    (5)The Tribunal had not requested a copy of articles to foreign newspapers.

    (6)He had not mentioned some matters to some interviewers because “its difficult for me that I give you all my secrets”.

    (7)The Tribunal had failed to give weight to information he had provided on the manner in which the Revolutionary Court tried cases.

    Reasoning

11. I accept the submissions for the respondent that the oral submissions for the applicant addressed factual matters going to the merits of the Tribunal’s fact finding. That is, the submissions sought to re-agitate before this Court the facts found by the Tribunal. This Court does not have jurisdiction to remake the findings of fact made by the Tribunal or to review them save upon the existence of an error of law within the scope of s 476(1) of the Act: Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [56].

12. I also accept the submission for the respondent that the way in which the applicant formulated what the Tribunal found or he had said in evidence involved some misstatements.

13. I turn to some of the specific issues raised by the applicant.

14. The first aspect of actual bias alleged by the applicant was in relation to the findings about his father after he had been in exile and what his father did, in particular in relation to changing his religion:  par 1(d) above.  The Tribunal’s reasons show it carefully considered the issue in the following passage:

    “[The applicant] claimed that his father’s religion had been changed by force after he was detained and sent into exile in 1982.  He said that his family was originally Wahabi Sunnis, like most people from his area and he still considered himself to be a Wahabi.  However, because his father wanted to “smooth the path” for his children, he changed his religion and became a Shi’ite.  When asked what would have happened if his father had not changed his religion, he said that he did not know, but added that Wahabi Sunnis were seen as heretics and some had been executed.  He also said that his father had been primarily concerned about the future of his family and had been prepared to compromise to ensure their well-being, but he did not do everything the authorities expected of him.  Following the first hearing, I read several reports on religion in Iran, but found nothing which suggested the Sunnis in general or Wahabis in particular faced serious problems in Iran because of their religion.  When I advised [the Applicant] of this at the second hearing, he said that the Iranian regime was trying to eliminate the Sunni religion, but did not say so publicly.  When asked for information on the actions the regime took to achieve this end, he said that there had recently been discussions in the Iranian parliament on budget allocations for religious minority in Iran, including Wahabis, when one of the members requested that the budget for Wahabis be cancelled to stop them acting against the Shi’as.  Furthermore, Sunni scholars were prohibited from continuing education.  In addition the Mufti of the Sunnis was executed some years earlier.”

    The finding of the Tribunal on this issue was:

    “I accept that the [applicant’s] father converted from a Sunni Muslim to a Shi’a when [the applicant] was a youth, but I do not believe that the (sic) was forced to do so.  At the hearing he said that his father decided to become a Shi’a because he thought this would assist his children later in life and, when asked, said that he did not know what would have happened to his father if he had not converted.  There is nothing in the other evidence before me which suggests that Sunnis are forced to become Shia’s, nor that Sunnis generally face serious restrictions on their right to practice their religion or other forms of serious discrimination in Iran.  In these circumstances, and in light of the evidence given by [the applicant] at the hearing, while I accept that [the applicant’s] father changed his religion many years ago, I do not accept that he was forced to do so.  [The applicant] does not claim that he or any other member of his family has faced problems in Iran for reasons of religion and I am not satisfied that he has a well-founded fear of persecution in Iran for this reason.”

    These deliberations provide no foundation whatsoever for any allegation of actual bias.  It is apparent the Tribunal considered the appropriate materials and issues and made a decision of fact.

15. In relation to par 1(e) above, the issue of the seizure of the applicant’s father by mistake and problems he may have had after returning from exile, the reasons of the Tribunal record:

    “When asked if his father had had any problems with the authorities since the 1980s, [the applicant] said that he was questioned if he attended Arab gatherings and that he had been detained twice in the last 10 years, the first time for 2 days, for failing to comply with rules or regulations regarding the distribution of flour and the second for 4 days after being accused of saying that Arabs should be able to dress in a traditional manner.  He was released after the authorities realised they had made a mistake.”

    The Tribunal found as follows on the issue:

    “…following his return from exile, he generally complied with the wishes of the government and going so far as to change his religion in order to improve his children’s prospects.  This approach appears to have had the desired affect as, apart from one very brief period of detention which ended when the authorities realised they had made a mistake, [the applicant’s] father did not any have (sic) serious problems with the authorities because of his ethnicity after his return from exile.  He was able to run a successful business and derive a good profit from his agricultural lands.”

    The applicant’s contention can be seen as in truth a request for the Court to (impermissibly) reconsider the merits of the Tribunal’s findings of fact.

16. Concerning the issue in par 2 above, the Tribunal made an explicit finding of fact that it was not “plausible” that the applicant faced serious discrimination in areas such as education and employment because of his ethnicity.  That was a conclusion of fact which the applicant seeks (impermissibly) directly to challenge in this Court. 

17. So far as the issues concerning his stepbrother, referred to in par 4 above, it would not have made any difference if the Tribunal had seen the original documents and other evidence because it found as a matter of fact that the stepbrother was not involved in student politics or arrested and falsely charged with murder because of those activities.  This was a conclusion of fact open to it.  In an interview the applicant had claimed events such as these involving his stepbrother had occurred as the consequence of “tribal clashes”.  There were other foundations for disbelieving the applicant’s account in relation to his escape from prison, namely the evidence was far fetched and did not relate to a Convention reason. 

18. In any event there is no credible evidence that the applicant had offered and the Tribunal had refused to accept original documents and other evidence.  No reference is made to that in the Tribunal’s reasons.  The applicant’s former solicitors declined to make any further submissions following the hearing.

19. It was apparent from the applicant’s oral submissions that when he alleged bias he intended to convey that the Tribunal had a closed mind to believing his account of the salient features of his claim. It is understandable that applicants sharing detention should come to view the high degree of disbelief of applicants which has now come to be characteristic of decisions of the Tribunal. However, when there is evidence on which a Tribunal can properly base a finding of disbelief, without more there is no scope for the operation of the legal concept of actual bias. There is no basis for s 476(1)(f) being applied as a ground of review here.

20. Nor is there a basis to invoke s 476(1)(a) in connection with the applicant’s offer to provide original documents and other materials. Sections 424 and 426 do not compel the Tribunal to accede to such an offer nor does s 424A have any operation when the information is the applicant’s information: s 424A(3)(b).

21. The no evidence ground in s 476(1)(g) is not one which can apply here because, on the matters raised by the applicant, there was evidence on which the Tribunal could reach its findings.

    Conclusion

22. For these reasons the application must be dismissed.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Associate:

Dated:             30 November 2001

Counsel for the Applicant:	The applicant represented himself
Counsel for the Respondent:	Mr M Ritter
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 November 2001
Date of Judgment:	30 November 2001