W232 v Minister for Immigration and Multicultural Affairs

[2001] FCA 1383

FEDERAL COURT OF AUSTRALIA

W232 v Minister for Immigration & Multicultural Affairs [2001] FCA 1383

Migration Act 1958 (Cth)

W232 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W232 OF 2001

FRENCH J
17 SEPTEMBER 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W232 OF 2001

BETWEEN:	W232 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	17 SEPTEMBER 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	W232 OF 2001

BETWEEN:	W232 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	17 SEPTEMBER 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant is a citizen of Iran.  He arrived in Australia in August 2000.  On 27 August he was interviewed by an officer of the Department of Immigration and Multicultural Affairs.  On 3 February 2001, he made an application for a protection visa under the Migration Act 1958 (Cth). He was interviewed by an officer of the Department, who was a delegate of the Minister, on 14 March. On 2 April, the delegate made a decision refusing to grant him a protection visa. On 4 April, he applied to the Refugee Review Tribunal for a review of the delegate's decision. On 30 April, the Tribunal wrote to him and told him it had information that could be a reason for rejecting his application, that being the initial interview record which was said to differ in significant ways from later claims he made. He was invited to comment and a response was received from his advisers on 4 May.

2. A hearing was conducted by the Tribunal in relation to his application on 8 May.  At the hearing he gave evidence.  Evidence was also given by Reverend Bev Fab, who is a Uniting Church Minister, and by the applicant's cousin, Mr "E".  On 24 May, the Tribunal made a decision affirming the delegate's decision not to grant a protection visa.  On 12 June, he lodged an application with the Federal Court for a review of that decision.  The application for review simply says that the decision was wrong in fact and in law. 

3. The applicant appears before me unrepresented and, of course, has all the difficulties that an unrepresented applicant faces in bringing such an application.  As was explained to him, the grounds upon which the Tribunal's decision can be reviewed are confined to those set out in the Act.  They do not allow this Court to revisit and reconsider the factual merits of the case.  In particular, the Court cannot set aside Tribunal decisions as to credibility just because it thinks the Tribunal ought to have believed the applicant when it did not. 

4. The Tribunal decision made reference to the Refugees Convention and then reviewed the contents of claims and evidence given by the applicant at various stages of the process.  It referred to claims he made at his initial interview on 27 August 2000.  These claims included the following:

   1.The applicant left Iran on a genuine Iranian passport on 15 July.

   2.The applicant had a birthday party in 1999 and the police raided the party, taking everyone in for questioning and confiscating cassette tapes.  The applicant was detained for two days and his grandmother gave the deed to her house for security for his release.  The applicant had to report to the police for a few weeks after his release and had to pay a substantial amount to get the deeds back.

   3.In August 1999, police raided his father's house and took a satellite dish which was at the house.  The applicant was in the house at the time and was arrested.  His father paid money for his release but the police recorded the conviction.

   4.When he was selling alcohol to the public, morals police came looking for him and asked his neighbours questions about him.  When he found this out, he stopped selling alcohol.  He claimed that if he were caught selling alcohol, he would suffer a very serious penalty and he left Iran so the police could not find him.

   5.His uncle was caught with a lady at his house ten years ago and then went to Japan.  When he returned, he was arrested at the airport and imprisoned for two years.  He claimed that his selling alcohol was a much worse infraction and the penalty would be high.

   6.He stated that neither he nor his family had any involvement in activities against the government or any political group.

   7.His sister was involved in demonstrations at the university in 1999 and was detained and suspended for two weeks.  He was also involved in the demonstration but not arrested.

   8.Neither he nor any member of his family had been involved in any political group or organisation.

5. The Tribunal then referred to his claims and evidence in written submissions to the Department dated 8 March 2001, in the written submissions to the Tribunal and in his oral evidence to the Tribunal at the hearing on 8 May.  It also set out in its decision matters which it raised with him and his answers to them.  It referred to evidence given by his witnesses, the Reverend Fab and Mr "E".  In its findings and reasons for decision, the Tribunal began by observing that the applicant made a set of claims immediately upon arrival in Australia but that when he lodged his protection visa application six months later, he added to those with a set of new claims of which there had been no suggestion when he first arrived.  The Tribunal did not accept the later claims he made as credible and it set out the reasons for its rejection of them.

6. The Tribunal stated that it gave the applicant the opportunity to comment on the differences between his original claims and later claims.  It did not accept his explanation for failing to make all his claims when he first arrived in Australia.  He told the Tribunal that because he was young and inexperienced, he relied on information allegedly provided to him by the smuggler who brought him to Australia.  He claimed that the smuggler told him to keep his claim simple and say as little as possible.  The Tribunal observed, however, it is generally accepted that people smugglers bringing illegal immigrants to Australia have a good understanding of Australia's immigration laws.  It did not believe that the smuggler would have advised the applicant to withhold information about his alleged political activities if that claim were true because it is clearly a Convention related claim.

7. He had claimed he was coming to Australia to seek refugee status.  The Tribunal assumed therefore that he would have had some basic knowledge of the refugee definition, at least to the extent that political matters fall within the Convention and criminal matters do not.  The Tribunal gave significant weight to the fact that the interview on arrival was conducted very soon after he reached Australia and well before he had had any opportunity to talk with other detainees who may have had an influence on his later claims.  He had made statements about an interest in conversion to Christianity which he did not disclose on arrival. He said that this was because he had not been baptised at that time and had not actually converted.  However, according to the Tribunal, he now claims that one of the reasons why he left Iran was because he wanted to convert to Christianity and believed it was dangerous to do so there.  He had failed to mention this at his arrival interview.

8. Another reason why he failed to make all his claims at the arrival interview was said to be that he did not have a lawyer at the time.  The Tribunal did not accept this as a reasonable explanation for failing to tell the truth.  The questions which he was asked at his arrival interview were clear and so were his answers.  He was warned at the arrival interview that he should understand that if the information he gave them was different from what he told people later, this could raise doubts about the credibility of what he said.  The Tribunal was satisfied the claims he made during his arrival interview were the true reason why he came to Australia and why he feared returning to Iran.  It found all of his later claims to be embellishments and not credible.

9. The Tribunal then examined the principal claims which were later raised.  The first is that he had been introduced to Christianity through his friend, Artin, and members of Artin's family, Artin's aunt and his friend, Alice.  The Tribunal noted that all were Armenians and that independent evidence clearly indicated that Armenian Christians in Iran do not seek to convert people and, in fact, have a policy of turning away any Muslim who expresses an interest in Christianity.  The Tribunal did not accept that Artin and his friend Alice would so easily and freely introduce the applicant to the Armenian church.  It then went on to refer to evidence that non-Muslims were not permitted into Armenian churches and that there were guards at the doors to enforce this.

10. The applicant claimed that Armenian Christians in Iran invited anyone along to their services so long as they were satisfied they were not intelligence officers, but this was  contrary to the independent information which was before the Tribunal.  The Tribunal went on to say he showed little knowledge of the Armenian church in Iran during his Tribunal hearing.  He believed that Armenians actually do try to convert people because that is a duty set out in the Bible.  The Tribunal noted that he had been studying Christianity while in the detention centre and found that his knowledge of Christianity had derived primarily from that source, not from his contact with Armenian Christians in Iran.  The Tribunal was not satisfied that he had contact with Armenian Christians, while in Iran to the extent that he had claimed.

11. In his submissions to this Court the applicant said that in his initial case officer interview he had expressed an interest in Christianity and said that because he had been in isolation camp prior to that happening, that is, the isolation camp aspect of the Port Hedland Detention Centre, where there was no access to Bibles, this demonstrated that he had developed an interest in Christianity before leaving Iran and had not simply invented it for the purposes of his Tribunal hearing.  I note that the Tribunal did not find that he had no interest in, or knew nothing about, Christianity before going to the detention centre.  It simply said that his knowledge of Christianity had derived primarily from that source and said it was not satisfied that he had contact with Armenian Christians to the extent that he had claimed.  It was not an open and shut finding that he was not interested at all in Christianity and knew nothing about Christianity before the detention centre.  In any event, this was a finding of fact which the Tribunal was, of course, entitled to make.

12. The Tribunal went on to refer to the applicant's claims that he had passed low-level military information to his girlfriend, Alice.  It said that he did not know why Alice wanted the information, nor did he even ask he why she wanted it.  He claims that he told the Tribunal that he did ask questions of Alice.  The Tribunal notes that he claimed to have suspected that she was with Mujaheddin and that she later confirmed this but the Tribunal did not accept that he would have taken the risks which he claimed to have taken without having as much information as possible about Alice and her activities.

13. Again, although the applicant contests the correctness of that finding, it is a finding of fact and his criticisms of it are not matters which I can act upon within the framework of this review proceeding.  The Tribunal noted that he had given detailed historical information about the Mujaheddin but found it was clear that this was the result of research he carried out since his arrival in Australia, not from first-hand knowledge.  It referred to the fact that the Mujaheddin keeps a web site which, among other things, detailed claimed terrorist hits in Iran.

14. The Tribunal then looked at his claim that he left Iran on a passport issued in his real name, which he claimed before the Tribunal was illegally obtained, although at his arrival interview he had said it was a genuine passport.  The Tribunal did not accept that if he were in the danger he now claims, he would have risked departing Iran under his real name.  It did not accept that his uncle was in a position to remove his name from any airport black list, even temporarily.  The Tribunal also referred to the evidence given by Reverend Fab, with whom the applicant had some dealings and whose church services he was attending in the detention centre at Port Hedland.  The Tribunal noted her evidence but also noted that it was not her job to assess the credibility of people seeking out her services.  The Tribunal accepted that she gave candid, honest and professional evidence but did not accept that her evidence led to the conclusion that the applicant's claims were credible.  The Tribunal was not satisfied that he was a Christian in Iran, but rather that he had studied it in the Port Hedland Detention Centre for purely opportunistic reasons.  The applicant again, in criticising the Tribunal decision, questioned its finding that it was not the job of Reverend Fab to assess the credibility of people seeking out her services.  Of course, she was entitled to give evidence, and it being an administrative hearing, no doubt she could tell the Tribunal that she thought somebody was believable, but in the end it was the Tribunal's function to decide who it believed and who it does not believe in the matter that is put before it.  It cannot be bound by what a particular witness may say.

15. The Tribunal also rejected the applicant's claim that he had worked with the intelligence section of the military and found that his description of his work activities and the low level of security surrounding military papers in his unit was not consistent with working for an intelligence unit which would be governed by high security measures. This conclusion was reached by reference to independent information and arguably, commonsense. 

16. The Tribunal found that the additional claims which the applicant made, after interview upon arrival, were not credible and placed no weight upon them.  It then considered   the claims he had made upon interview and found that they related essentially to violations of laws of general application. These violations would have exposed him to penalties not on Convention grounds but rather for breach of laws of general application relating to the sale of alcohol, the possession of satellite dishes, the possession of western music and the like.  There was additionally no evidence before the Tribunal which satisfied it that the applicant had suffered a penalty for any of his past offences more serious than that which others would face for the same offence. It was not satisfied that he had been targeted for prosecution or for more serious penalty than usual for a Convention reason.  It was not satisfied that if punished in future for having sold alcohol or for any other offence, he would suffer a particular penalty for a Convention reason. 

17. The Tribunal also made reference to his claim that his uncle was once caught with a woman in his house ten years previously and that his uncle had gone to Japan and on his return had been imprisoned for two years.  This was cited by the applicant as an example of the harsh penalties imposed for morals infringements.  There was no evidence before the Tribunal that the incident with his uncle would affect the applicant's penalty directly in any way and it concluded that while they may be harsh punishments, the penalties were imposed under laws again of general application.

18. The Tribunal also referred to a claim that the applicant had been involved in student demonstrations in Teheran in 1999 in which his sister was also said to be involved and for which she had been briefly detained and later suspended from her university.  The applicant, however, was not detained.  He told the Tribunal that he had no continuing problems as a result of his involvement in the 1999 demonstrations.  The Tribunal was not satisfied that any person in authority knew he participated in the demonstrations.  It was not satisfied that he would be of any interest to the authorities in the reasonably foreseeable future as a result of his involvement.  It was not satisfied that he had a well-founded fear of persecution in Iran as a result.  The Tribunal, on that basis, found him not to be a refugee.

19. On the material before it and the reasoning which it undertook, the conclusions were open to the Tribunal. They were simply open to the Tribunal to make and there is nothing to suggest that there is any basis shown upon which I can, within the grounds of review available under Part VIII of the Migration Act, interfere with that decision.  I have to dismiss the application with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated:              October 2001

The applicant appeared on his own behalf.
Counsel for the Respondent:	Mr PR Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 September 2001
Date of Judgment:	17 September 2001