W26 v Minister for Immigration and Multicultural Affairs

[2001] FCA 927

FEDERAL COURT OF AUSTRALIA

W26 v Minister for Immigration & Multicultural Affairs [2001] FCA 927

MIGRATION – judicial review – Refugee Review Tribunal – Iranian national – principal claims disbelieved by Tribunal – applicant in possession of satellite dish banned by Iranian law – law of general application – no basis for concluding well-founded fear of persecution on Convention ground – test for assessing claims – real chance test – whether, notwithstanding adverse findings there was a real chance of persecution for a Convention reason – strong findings implicitly excluded such an hypothesis – application dismissed.

Migration Act 1958 (Cth)

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 cited
Chen Shin Hai v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553 cited

W26 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W26 OF 2001

FRENCH J
18 JULY 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W26 OF 2001

BETWEEN:	W26 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	18 JULY 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application is 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	W26 OF 2001

BETWEEN:	W26 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	18 JULY 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

1. The applicant is a national of Iran who was born on 24 February 1966.  He is an electrician by occupation.  He is married with one child, born on 2 January 1999.  He arrived in Australia by boat from Indonesia on 12 September 2000.  His wife and child remained in Iran.  On 27 September 2000, he applied for a protection visa which was refused on 17 October 2000 by a delegate of the Minister for Immigration and Multicultural Affairs.  He lodged an application for review of that decision with the Refugee Review Tribunal on 19 October 2000.  On 2 January 2001, the Tribunal affirmed the decision not to grant him a protection visa.  By an application filed on 31 January 2001 he sought an order of review of the decision of the Tribunal. 

   The Applicant’s Evidence and Claims

2. The applicant completed high school education in 1983 and was employed as an electrician in 1985.  According to the statement which accompanied his application his step-uncle, who had served in the Iranian armed forces, was executed about one year after the Iran revolution.  His step-uncle had a high position and was very popular.  But the new regime feared that the military would start a coup.  Because of his uncle’s execution the applicant said he was against the regime from the outset. 

3. The applicant started working in a glass factory in 1985. He began talking to other workers in the factory and expressing his opinions about the regime’s corruption and lies.  He did not join any political party.  However he called meetings and explained to other people about the deficiencies of the Iranian regime and its hypocrisy.  Eventually, after some two years had passed, the Islamic Council reported on his political critiques and he was arrested by two agents who took him to a Prosecutor’s Office.  There he was detained for two days. Eventually his captors took an undertaking from him that he would cease his activities upon his release.  Notwithstanding this undertaking, according to the applicant, he continued his political activities as he loved his country and could see the economic failings of the government.  The only way he knew he could help was to make others aware of the regime.  He believed that if he could do this, there might be a change for the benefit of the people.

4. In 1994, he was arrested and taken to Evin prison.  The arresting authorities had received a report that he was anti-revolutionary.  He was lashed on the soles of his feet and his teeth were broken.  The authorities wanted him to sign a document admitting that he had insulted the revolution and the Islamic Republic of Iran.  He refused to do this but agreed to sign a paper stating that he would stop his political activities.  He was then released through the intercession of a relative of his step-mother who had a high position in security forces in  Orumiyeh.  Following this incarceration and his release in 1994 the applicant was unemployed for about eighteen months.  In 1996 he was employed by a State enterprise manufacturing motor vehicles.  It had 3,000 employees.  His brother had introduced him to this work place.  The applicant continued to express his political opinions using break times for that purpose.  He tried to show his fellow workers evidence about corruption in Iran, in particular referring to a story that had been reported on television about a lorry smuggling gold out of the country. 

5. Late in March 2000,  somebody covertly taped his talks.  He was told this by a friend who was in contact with paramilitary volunteer forces known as Basiji.  The applicant said that security people at the company had contacted the “national forces” and reported on his activities.  His friend told him he might be arrested.  The next day he had been paged at work and he had seen some people from the Revolutionary Guard arriving so he left through the northern entrance to the factory where there was no guard. 

6. According to his statement, he told his family he had to leave.  He did not tell his  wife at the time.  He visited his mother after his escape and after a month returned to his hometown.  When released from Evin prison he had been told that his next punishment would be life imprisonment or execution.  He said he knew his life was in danger so he decided to leave Iran.  He paid a smuggler $US4,000 and left Iran on a large container ship which took him to Jakarta.  From there he travelled to Australia.  The account thus far given is that which accompanied his original application.

7. The applicant was also interviewed by the primary decision-maker.  He elaborated on his political activities at his first place of employment.  He said that he had distributed leaflets which were copied in the factory.  These leaflets, inter alia, highlighted inconsistencies in official accounts in newspapers in Iran relating to the number of votes received by candidates in parliamentary elections.   He spoke further of his imprisonment in 1994.  He said he was tortured in prison, that his teeth were broken and that cuffs were put on his legs.  His father did his best to obtain his release and approached his stepmother’s relative.

8. In relation to his post-release activities at the car factory, the applicant added that at the meetings which he arranged there had been discussion of news from newspapers. He had a satellite dish which he used to listen to foreign radio broadcasts from stations in the United States and from Great Britain.  The dish was hidden in his house and he used it at night.  He said he was warned three times about his activities.  The first warning was in 1997, a year after he started at the company, the last two warnings occurred  in the space of two months in the autumn of 1999.  He was asked why he was insulting the regime.  He was told he was playing with his life and that he should have pity on his family.  The third time he had been handcuffed and one of those speaking to him had said if he continued his activities his life would be in danger. 

9. On the day he left the car factory after being paged, he saw some armed Sepahs there.  They are members of the Sepah Pasdaran or Revolutionary Guards together with people from the Islamic Council.  A friend of his told him that a letter had been written saying that he was a dangerous person for the regime and it had been given to the Sepah.  His friend told him they would probably come and take him.  After leaving the car factory he went to his home where he stayed for less than ten minutes, got his bank passbook and travellers’ cheques and went to the bus terminal.  His mother’s place to which he travelled was in the Iranian province of West Azarbayjan.  He did not see his wife because his home was under surveillance.  He returned to his hometown because he decided to leave the country.  He had taken a domestic flight from Tehran to Bandar-e-Abbas.  He was not stopped by security forces.  If he had gone by road there would have been check points through which he would have had to pass.  On the night he arrived in Bandar-e-Abbas he was taken to a container ship. 

10. In a submission dated 24 November 2000, the applicant’s representative provided a further statement in which he contended that his political activities must have been important or he would not have been in prison for six months.  He was a self-described “outspoken political critic of the regime” and said his political activities were not restricted to his work.  He was involved in distributing “articles, pamphlets published against the regime”.  He encouraged his friends and colleagues  to oppose the regime. 

11. According to his representative’s submissions to the Tribunal, when arrested in June 1994 the applicant was taken into custody by a detachment of Sepah Pasdaran.  However an officer of the Intelligence Ministry or Bezarat-e-Ettela’at took over his interrogation.  He was held for interrogation for six months before his stepmother had intervened through a cousin in the Ettela’at office in Orumiyeh.  He was taken before a court to “rubber stamp his release” and was warned that the next time he was taken he would be either imprisoned for a lengthy term or “liquidated as an enemy of Islam”.  He had been dismissed from his employment and it had been eighteen months before he had found work again with a larger State organisation.  There he had “resumed his political preaching sometimes attracting a large audience during break times”.  His representative said that the Ettela’at had arranged for someone to tape one of his break time exhortations to his colleagues and had then arranged for the local Sepah Pasdaran unit to arrest him.  However he had been warned by a friend and decided to flee.

12. It was submitted by the applicant’s representative that he had a well-founded fear of persecution “arising from his persistent anti-regime “preaching” to work colleagues criticising the clerical rulers and their corruption in their governance of the Islamic republic”.  He had left Iran illegally as a stowaway without a passport or an exit permit.  The fact that he had applied for asylum “thereby vilifying the Iranian Islamic regime” was itself another act of political criticism of the regime.  If he were returned to Iran undocumented he would come to the attention of national agencies such as the Ettela’at or the Intelligence wings of Sepah Pasdaran and their enforcers the Basij.

13. The Tribunal took evidence from the applicant’s cousin in Melbourne by telephone. She had come to Australia in 1993 but before that had lived in his hometown.  He had always been an anti-revolutionary person and had talked against the revolution.  She knew he had been in prison about a year before she had come to Australia but did not know for how long or why he had been there.  She had heard from his father that he had said he would not return to Iran and would rather commit suicide.  She said his family was very worried about him.  She had gone back to Iran last year and during that time she had seen him two or three times.  She said he was a very sensitive and soft hearted person who had not wanted to see people suffering but wanted to enlighten or to make them aware. 

14. The Tribunal also heard directly from the applicant at the hearing.  In the course of that evidence he said he did not consider himself a political person but had tried to encourage people to think about the country’s problems.  When asked why he had been arrested in 1994 and imprisoned for six months, the applicant said he had been continuing his anti-government preaching with four or five other people in the company.  One day the Islamic Council and the Basiji had raided their room and had searched it.  There they found newspaper clippings which he kept concerning important issues, although they did not find any of the pamphlets which he had published.  Two days after this he had been arrested.  He said he had not known that he had been taken to Evin prison until after his release. He denied his own representative’s contention that he had sometimes addressed a large audience at his place of work following his release.  At the last gathering that they had held he had lost control and had started swearing against the regime, the religion and the leadership.  He had said that if this was Islam, he did not want Islam, if this was God, he did not want God.  This was the day on which his friend told him his speech had been recorded and he would be arrested because of the strong evidence against him.  This was what led to his escape. 

15. Contrary to what his representative had told the Tribunal, the applicant said he returned to his hometown before his departure from Iran and stayed there for a week with a friend but did not contact his wife.  He was asked why rather than returning to his hometown he did not leave through the border into Northern Iraq.  He said the only relative he had living overseas was his cousin in Australia so he decided to come to Australia.  The smuggler whom he sought out suggested Australia anyway.  He told the Tribunal he returned to his hometown quite discreetly.

16. The Tribunal pointed out that the applicant changed his evidence in a number of respects, both in the supplementary statement produced by his representatives and at the hearing before the Tribunal.  The applicant said that the case officer who had interviewed him had not been interested in details so he had been brief.  The Tribunal however noted that the interview with the primary decision-maker had lasted over three hours.  The Tribunal put to him that it was unlikely that if authorities had been looking for him they would not have looked for him at his mother’s house.  He said he had not given his mother’s address to the car company.  His parents had divorced when he was aged 11 and, in any event, the only way for authorities to find his mother’s address would have been from personnel records of the company.  The Tribunal referred to country information from the Australian Department of Foreign Affairs and Trade that a person could criticise the government without fear of arrest.  The authorities would be concerned only with those attempting to co-ordinate or participate in organised political opposition or who were seen as potentially in a position to do so.  The applicant agreed about the response to criticism.  His case, however, was different because there was a tape of him insulting the leadership and the State religion and that was why they were looking for him.  It was put to him that the most likely penalty for someone who had departed Iran illegally was a fine.  He said there was a political file in relation  to him and he had twice been required to give undertakings.  If he were to return his departure would be looked at in the light of his previous record. 

17. It was also put to the applicant that the act of applying for asylum abroad was not itself an offence in Iran.  At the worst a returned asylum seeker would not suffer much more than verbal harassment unless the person had had a high opposition political profile.  The applicant said that if none of the incidents that he had described had happened to him, this would be true but the Tribunal should take into account the incidents that had happened to him. 

    The Tribunal’s Reasoning

18. After referring to country information, the Tribunal noted that the applicant had changed his evidence in a number of significant respects in the course of the processing of his application.  These changes allegedly related to the level and nature of his activities at the work place.  The Tribunal considered that his claims that his political activities were not confined to talking to his colleagues at the car factory and had extended to distributing pamphlets outside the work place was an embellishment of his original evidence.  It accepted that he had always been an anti-revolutionary person and that he talked against the revolution.  It accepted that he spoke about the situation in Iran at his place of work.  However the Tribunal relied upon advice from the Department of Foreign Affairs and Trade that people in Iran can criticise the government without fear of arrest.  The government is only concerned with those who are attempting to co-ordinate or are participating in organised political opposition or are seen as potentially in a position to do so.  Despite another claim by the applicant that as a result of his activities some 200 people travelled to join demonstrations in Tehran in July 1999, the Tribunal did not accept that he would have been regarded by Iranian authorities as a co-ordinator or participant in organised political opposition. 

19. Given the nature of his activities, the Tribunal considered it “implausible” that the applicant would have been imprisoned for six months in 1994 for his political activities.  Reference was made to advice from the Department of Foreign Affairs and Trade said to support this conclusion.  The Tribunal also considered it “implausible” that the applicant would have been imprisoned for six months in the circumstances which he described where his premises had been searched and newspaper clippings found which he had kept regarding important issues. 

20. The Tribunal accepted the applicant’s cousin’s evidence that he was in prison in 1994 but did not accept the applicant’s evidence about the reason for that imprisonment.  It did not accept that he was imprisoned and tortured by reason of his political opinions or that he was warned at the time of release that the next time he was taken he would be either imprisoned for a lengthy term or liquidated as an enemy of Islam.  The Tribunal accepted that a former co-worker of his at the glass factory may have fled to Switzerland but did not accept that that was because of political activities done in conjunction with the applicant. 

21. Having regard to the view it had formed of the applicant’s credibility, the Tribunal did not accept that he was detained for two days in 1987, around two years after he had started working at the glass factory, because of his political activities.  Nor did it accept that he was in prison in 1994 for six months because of political activity.  The Tribunal considered that both the applicant and his representatives had overstated the degree of attention to which someone like the applicant, who criticised the regime to his co-workers, would have been subjected.  It did not accept that he received warnings in 1997 and autumn 1999 by the Islamic Council with respect to political activities.  Nor did it accept, as put in a further statement submitted by his representatives to the Tribunal, that he was caught several times by the Basiji and Islamic society and others and had been interrogated and harassed and threatened with death.

22. The applicant’s account of his movements after leaving the car factory was found to be implausible if he were indeed wanted by the authorities as claimed.  Moreover the Tribunal considered it implausible that having fled from his home town because he feared arrest by the Revolutionary Guards, he would have returned there before arranging to leave Iran and to come to Australia.  The applicant’s conduct was not consistent with his claim that he was in fear of being arrested by Iranian authorities.  The Tribunal did not accept that he was wanted by Iranian authorities as claimed nor that his home was placed under surveillance after he left his hometown nor that since he arrived in Australia he has been told, as he had claimed, by his wife, that security forces were looking for him and inquiring about his whereabouts.  It did not accept that if he were to return to Iran now or in the reasonably foreseeable future, there would be a real chance that he would be persecuted by the Iranian authorities by reason of his political activities at the glass factory and the car factory as he originally described them.  The Tribunal accepted that if he were to return to Iran the applicant would continue to talk about the situation to his colleagues at his place of work and that he would continue to criticise the present regime.  However, having regard to the advice of the Australian Department of Foreign Affairs and Trade it was not accepted that there was a real chance that he would be arrested, imprisoned or otherwise persecuted by reason of expressing his political opinion in this fashion. 

1. The Tribunal accepted that the applicant had a satellite dish which he used to listen to foreign news broadcasts.  Such dishes are banned in Iran but, in the Tribunal’s view, it was “… well established that the enforcement of a law of general application is not, without more, persecution for a convention reason”.  In order to come within the terms of the Convention prosecution for a breach of the law would have to be selective on a Convention ground or a person would have to be punished more harshly for a Convention reason than others convicted of the same offence.  There was nothing to suggest that if the applicant were to be prosecuted for possessing a satellite dish he would be being singled out for a Convention reason or treated differently, for a Convention reason, from others charged with the same offence.

2. The Tribunal accepted that the applicant had left Iran illegally by stowing away on a container ship with the assistance of a smuggler.  Departing the country illegally is an offence but the Tribunal referred to advice from the Department of Foreign Affairs and Trade that the most likely penalty for that offence is a fine.  If the applicant were to be punished for having left Iran illegally it would be as a result of the enforcement of the law of general application and this would not, without more, constitute persecution for the purposes of the Convention.  The Tribunal did not accept that there is a political file on the applicant in Iran recording his imprisonment, his undertakings and his illegal departure and did not accept that if he returned to Iran now or in the reasonably foreseeable future there would be a real chance that he would be imprisoned and killed as a result of his previous record.  Nor did it accept that he had a well-founded fear of being persecuted by reason of his having applied for refugee status in Australia if he were to be returned to Iran now or in the reasonably foreseeable future.  This was based on advice from the Department of Foreign Affairs and Trade that the act of applying for asylum abroad is not itself an offence in Iran and that the worst he could expect would be verbal harassment. 

3. The Tribunal said, in conclusion:

   “I have considered the totality of the Applicant’s circumstances as someone who has been critical of the regime in Iran in discussion with his work colleagues, who possessed a banned satellite dish in Iran, who departed Iran illegally and who has applied for refugee status in Australia.  However, even taking into account the cumulative effect of all these circumstances, I am not satisfied that the Applicant has a well-founded fear of being persecuted for a convention reason if he returns to Iran.  It follows that he is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Consequently the Applicant does not satisfy the criteria set out in subsection 36(2) of the Migration Act for the grant of a protection visa.”

   Grounds of Application for Review

4. A minute of a substituted application for an order of review was filed on 3 July and substituted for the existing application at the hearing on 5 July.  The grounds of the application are:

   “a)The Tribunal erred in law in determining that prosecution for the possession of Satellite dish would not be for a convention reason unless the Applicant was singled out and treated differently from others charged with the same offence.  Where the purpose of a law is to prevent or punish the dissemination of information and opinions contrary to or critical of the State and its constituent parts, punishment for a breach of such law is or can be persecution for reasons of political opinion, notwithstanding that the law is one of general application.

   b)The Tribunal erred in law in that it applied the wrong test of proof to its satisfaction in determining whether the Applicant’s claims of past persecution had in fact occurred and of its obligation to test and determine the Applicant’s claims to have a well founded fear of persecution if returned to Iran.

   PARTICULARS

   i.The Tribunal proceeded on the basis that the Applicant as an Iranian asylum seeker who had entered Australia illegally was unlikely to be worthy of belief, if it considered there was any unlikelihood or inconsistency in the claims made by the Applicant.

   ii.The Tribunal failed to take into account the fact that it could be wrong in its conclusion and the risk to the Applicant if it were wrong.

   iii.The Tribunal accepted the evidence of the Applicant’s cousin that the Applicant had been anti revolutionary and had talked against the Revolution and spoke against situation in Iran.  The Tribunal further accepted the Applicant’s cousin’s evidence that the Applicant had been imprisoned in about 1994.  The Tribunal did not accept that the Applicant had been imprisoned for 6 months and that it was for reasons of his expressions of political opinion.  The Applicant’s cousin had stated that she had learned of the Applicant’s ordeal and that the Applicant was imprisoned, by way of telephone call(s) (from Iran to Australia about a year after she had left Iran in 1993) and she had heard only briefly because for those in Iran “you are not safe talking on the phone”.  The reasons given by the Applicant’s cousin could rationally, only refer to political reasons.  Once the Tribunal had accepted the Applicant’s cousin’s evidence, rationally it had to accept it could be wrong that the Applicant had previously not been imprisoned for political reasons.

   iv.Further once the Tribunal accepted that the Applicant had talked about the situation in Iran to colleagues at his place of work and that the Applicant would continue to criticise the present clerical regime in Iran and that he accepted DFAT advice contained in the DFAT Country Profile – Islamic Republic of Iran March 1996, the Tribunal could not rationally dismiss the possibility that the Applicant would be at risk of persecution.

   v.The Tribunal found that the Applicant left Iran illegally and with the assistance of a smuggler stowed away on a container ship.  The Tribunal could not rationally ignore the implication that the Applicant left Iran illegally because he was wanted by the authorities.

   vi.The Applicant complained that he suffered psychiatric condition (sic) as a result of his detention and torture in 1994.  The Applicant was found by an Australian psychiatrist to be suffering from PTSD on his arrival in Australia.  The Tribunal could not rationally ignore such material and the implication that such condition arose from the detention and torture of the Applicant as claimed by the Applicant.

   c)Alternatively, the Tribunal did not have jurisdiction to make the decision or the Tribunal’s decision was not authorised by Migration Act in that the Tribunal’s decision was irrational, having regard to the evidence accepted by the Tribunal.

   Particulars

   i.The Applicant repeats sub paragraphs b)i to vi above.”

   Illegal Possession of a Satellite Dish – Whether an Occasion of Persecution

5. The contention that illegal possession of a satellite dish would expose the applicant to persecution for a Convention reason was not a ground which featured prominently in the materials put before the Tribunal.  It was not mentioned in the written submission made to the Tribunal by the applicant’s representative.  Nevertheless the Tribunal accepted that the applicant had a satellite dish which he used to listen to foreign broadcasts and that the possession of such dishes was banded in Iran.  The relevant passage of the Tribunal’s reasons for decision on this point reads as follows:

   “I accept that the Applicant had a satellite dish which he used to listen to foreign news broadcasts.  Satellite dishes are banned in Iran (DFAT Country Profile – Islamic Republic of Iran, March 1996 paragraphs 1.10.12.2, 1.10.12.3) but it is well-established that the enforcement of a law of general application is not, without more, persecution for a Convention reason: see Applicant A, referred to above, per Dawson J at 244-5, approving what was said by Beaumont, Hill and Heerey JJ in the Full Court of the Federal Court in that case, and per McHugh J at 258-9.  In order to come within the terms of the Convention the prosecution would have to be selective on one of the Convention grounds or, for example, a person would have to be punished more harshly for a Convention reason than others convicted of the same offence: see Z v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Katz J, 11 December 1998).  There is nothing in the evidence before me to suggest that, if the Applicant were to be prosecuted for possessing a satellite dish, he would be being singled out for a Convention reason, nor that he would be treated differently, for a Convention reason, from others charged with the same offence.  I note that a brush with the authorities for this sort of reason will not lead to the Applicant being imputed with a political opinion opposed to the present regime in Iran (DFAT Country Profile – Islamic Republic of Iran, March 1996, paragraph 3.3.4).”

6. The Tribunal was said to have erred in holding that enforcement of a law of general application could not, without more, be persecution for a Convention reason.  The Tribunal, it was said, had wrongly applied the observation of Dawson J in Applicant A as that case related to a claim based upon persecution of a political social group.  The position was said to be different where the law is in place to control or prevent the expression of particular political opinions or the conduct of particular political activities.  In many countries, it was said, persecution for political opinions is based on the enforcement of generally applicable laws.  It was necessary for the Tribunal to examine and consider whether the ban on satellite receiver dishes was calculated to control the inflow of information from foreign sources and to control political activities.  The severity of the punishment would be relevant.  The Tribunal, however, did not consider these further matters because of its error in holding that the punishment for breaching the banning on having a receiver would not be persecution for a Convention reason unless the applicant were treated differently from others who broke the law.

7. It is to be noted at the outset that for the purposes of the Convention a particular social group may be the subject of persecutory conduct.  It is not, however, defined by such conduct – Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 263; Chen Shin Hai v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553 at 557. When considering laws of general application it is necessary to consider that they may have a specific and discriminatory impact on a particular social group. So in Chen it was said in the joint judgment at 558:

   “…notwithstanding that China’s “one-child policy” may be reflected in laws of general application which limit the number of children that a couple may have, that does not mean that the laws or practices applied to children born in contravention of that policy are laws or practices of general application.  Such children are, even within the sense of the distinction drawn by Dawson J in Applicant A, persecuted for what they are (the circumstances of their parentage, birth and status) and not by reason of anything they themselves have done by engaging in certain behaviour or placing themselves in a particular situation.”

   The existence of a law of general application for being in possession of a satellite dish does not ipso facto make of satellite dish owners a particular social group.

8. The real question under this heading however is whether the law banning possession of satellite dishes provides an occasion for persecution on account of political opinions whether they be held or imputed.  In my opinion, however repugnant the statutory or bureaucratic censorship of information may be, it does not amount to persecution of those who would wish to receive such information.  The possession of a satellite dish in contravention of the law does not, on the face of it, constitute the expression of a political opinion, nor does it provide a basis for imputing a political opinion except in the sense that the contravenor thinks the law is a bad one or should not be obeyed.  To punish and prevent contravention of a law of general application, even one which is directed at the censorship of the free flow of information, does not constitute persecution for a Convention reason.

9. Consistently with that position, a law of general application may be enforced selectively or punishment applied in a discriminatory manner which targets the holders of a political opinion which the authorities wish to discourage.  Such selective enforcement or discriminatory punishment may amount to persecution on account of a person’s political opinions.  But that is not this case.  In my opinion, the Tribunal has not been shown to have erred as alleged in the first ground of the application.

   Erred in Law – Whether the Wrong Test was Applied in Assessing the Applicant’s Claims

10. Under this ground it was said that the Tribunal applied the wrong test in determining whether the past persecution claimed by the applicant had in fact occurred and in determining the Tribunal’s obligation to assess the applicant’s claims to have a well-founded fear of persecution if returned to Iran.

11. I do not accept the preliminary contention, under this ground, that the Tribunal’s reasoning was informed by any principle that “…the applicant as an Iranian asylum seeker who had entered Australia illegally was unlikely to be worthy of belief if the Tribunal considered there was any unlikelihood or improbability in the claims”. The rejection of various elements of the applicant’s story does not support an inference that because he was an Iranian asylum seeker, illegally in Australia, the Tribunal thought that he was unlikely to be worthy of belief.

12. The central submission in relation to this ground focussed upon the findings that the Tribunal made that the applicant had spent time in prison in 1994, that he had been involved in criticism of the regime at his workplace and that if returned to Iran he would continue to criticise the regime.  The Tribunal accepted the cousin’s telephone evidence that the applicant had been imprisoned in 1994, but received no indication from her as to how long the applicant was in prison for or why.  It did not, however, accept his contention attributing his incarceration to political opinions held by him.  Having regard to its wholesale rejection of the applicant’s testimony, it appears that on the central issues relevant to the Convention criteria for refugee status the Tribunal had no real doubt.  That is to say it was a necessary implication of its reasoning that the applicant would face no real chance of persecution for a Convention reason if returned to Iran.  There was therefore no scope for the application of the so called “what if I am wrong” test.

13. In the circumstances the Tribunal’s reasoning is not informed by any error of law as asserted and this ground also fails.

    Want of Jurisdiction

14. Under this ground the applicant sought to revisit the preceding grounds.  Having regard to my conclusions about them there is no scope for the application of the ground that the Tribunal lacked jurisdiction to make the decision it did.

    Conclusion

15. For the above reasons the application will be dismissed with costs.

I certify that the preceding thirty seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French .

Associate:

Dated:             18 July 2001

Counsel for the Applicant:	Mr H Christie
Solicitor for the Applicant:	Henry Christie
Counsel for the Respondent:	Mr LA Tsaknis
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 July 2001
Date of Judgment:	18 July 2001