W228 v Minister for Immigration and Multicultural Affairs

[2001] FCA 1291

FEDERAL COURT OF AUSTRALIA

W228 v Minister for Immigration & Multicultural Affairs [2001] FCA 1291

W228 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W 228 OF 2001

FRENCH J
5 SEPTEMBER 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W228 OF 2001

BETWEEN:	W228 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	5 SEPTEMBER 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The Applicant is to 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	W228 OF 2001

BETWEEN:	W228 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	5 SEPTEMBER 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant is a citizen of Iran who arrived in Australia on 23 December 2000 by boat without a visa. He lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 21 January 2001.  On 15 March 2001, his application was refused by a delegate of the Minister for Immigration and Multicultural Affairs.  On 16 March, he applied for review of that decision to the Refugee Review Tribunal ("the Tribunal").  On 24 May, the Tribunal affirmed the decision not to grant a protection visa.  He has now applied by an application lodged on 11 June 2001 seeking an order from this Court to review the Tribunal's decision. 

2. At his entry interview he was asked why he had left his country of nationality.  He referred to his participation in incidents at universities in 1999.  On 11 July 1999, he decided to join in a demonstration involving students although he was not a student.  A fight broke out and police tried to control the crowd.  A group of people supporting the government beat some of the demonstrators.  He and a friend were caught and taken to the police station.  They were detained, beaten and taken to prison the next day.  He was beaten again and questioned.  He said there was no trial.  Nevertheless he spent twelve months in prison and he received a two-year suspended prison sentence. 

3. According to the officer's notes, he said that he considered leaving Iran.  There were other demonstrations during the elections.  Although he didn't participate in them, police detained him again overnight.  He was asked whether he had any reasons for not wishing to return to Iran.  According to the officer's notes, he said he would have a problem, that is police would continue to pick him up for questioning.  He gave no other reasons, according to the officer. 

4. The Tribunal in its reasons made reference to the history of the matter as given by the applicant which included oral evidence given to the Tribunal.  In addition to the material I have already referred to from the initial statement, the Tribunal referred to a visit he made to Japan in 1991.  He went to Japan on a three‑month visa but overstayed.  He was caught in 1998 and detained for three months before being returned to Iran.  He claimed that he had always intended to return to Iran to be with his family. 

5. The Tribunal referred to his involvement in the university demonstration in July 1999.  He claimed to have clashed with police and secret security forces.  He also claimed that the day after he was taken to the police station he was blindfolded and taken to Evin Prison.  He said he was interrogated there and beaten for four or five days and then moved to another room in the prison.  After about two weeks he was sentenced to the term of imprisonment of one year and the two year suspended sentence.  He also claimed that following a peaceful demonstration on 19 August 2000, some people had come to his house and arrested and blindfolded him.  He was interrogated about alleged involvement in that demonstration.  After he returned home his parents told him he should leave as his life would be in danger if he remained in Iran.  He said he left Iran illegally because he was still serving his suspended sentence and could not leave legally. 

6. The Tribunal said that his evidence at the hearing was consistent with his statement.  It referred to that evidence and his statement that he could not return because of the problems he had as a result of the student demonstrations.  He was asked why he received such a lengthy sentence for his involvement in the 1999 demonstrations.  He said he was unlucky and the authorities were angry.  He considered his sentence to be unfair.  He told the Tribunal he was not allowed to leave Tehran because of the suspended sentence.  He said that ordinarily the penalty for an illegal departure would be a fine. 

7. Having referred in a fairly sketchy outline to the applicant's evidence, the Tribunal  considered country information.  It then turned to its findings and reasons.  It considered it highly unlikely that the applicant was involved in the demonstrations which he claimed.  He was not a student.  He had no previous involvement in politics.  He had spent a large amount of time in Japan prior to his alleged involvement.  In the Tribunal's opinion, if he had gone to a demonstration as claimed and been arrested, he would have been of little interest to the authorities.  The country information was said to indicate that a large number of those arrested were released immediately and a further number were bailed.

8. The Tribunal said that the applicant's claim to have been beaten, tortured and sentenced to twelve months imprisonment, plus a two year suspended sentence, was not consistent with the country information it had.  The Tribunal did not accept that the anger of the authorities was an explanation for the applicant receiving a sentence which appeared to be longer than that imposed on others.  The Tribunal was not satisfied that he was involved in the demonstrations in 1999.  The Tribunal also considered it implausible that he would have been detained after the demonstration on 20 August 2000 which he did not even attend.  So far as his claimed illegal departure was concerned, the Tribunal considered it most likely that he left on his own passport, legally.  Even if he did not do so, the Tribunal did not accept that he had a profile that would lead him to be treated differently to others.  The most likely outcome, according to country information, would be a fine.

9. The Tribunal did not think that the applicant would face a real chance of persecution because of his application for refugee status in Australia. 

10. In his application for review of the Tribunal's decision, the applicant said that the Tribunal member failed to assess the application in accordance with the requirements of the Migration Act 1958 (Cth). He said that the decision involved an error of law and that there was no evidence or other material to justify the making of the decision. In a written statement, which he sent to the Court on 20 July, he said that the Tribunal had engaged in conjecture when making its assessments, and had no evidence on which to base its finding. He said the Tribunal's decision was based on general information about Iran. In his oral submissions to the Court, he went further and said that Iran could conceal what was really happening in relation to human rights in that country.

11. The applicant is well aware that the powers of this Court are limited.  Indeed, part of his submission, which was in the English language, referred to the provisions of s 476 of the Act, and he acknowledged that he understood the powers of the Court were limited.  He made the fair point that, since he is not a lawyer, it is very difficult for him to properly invoke those grounds.  Unfortunately, there are very many applicants for refugee status who are in that situation.  Legal aid funds are generally unavailable except in test cases and the availability of lawyers able to represent applicants on a voluntary basis is limited.  There are too many cases and not enough lawyers.

12. The applicant has, in effect, asked the Court to consider whether there is any error of law or ground of review disclosed on the Tribunal's reasons.  While I have reservations about the degree of care which the Tribunal has exercised in analysing the facts, I cannot on the face of it discern an error of law or procedure.  The Refugee Review Tribunal is not a court, it is an administrative body.  It has a large number of cases to deal with.  The Court cannot hold it to the same standard of expression in its reasons as might be expected from a court of law.

13. In my opinion, on the facts which the Tribunal has found, the conclusion that it reached was open to it.  In substance, it regarded the applicant's evidence as inherently improbable or unlikely and not consistent with the country information which it had before it.  They were conclusions of fact which it was open to the Tribunal to make and the Court cannot interfere with them.  The application must be dismissed.  The applicant is to pay the respondent's costs of the application. 

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated:              September 2001

The Applicant appeared on his own behalf.
Counsel for the Respondent:	Mr A A Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 September 2001
Date of Judgment:	5 September 2001