W265/01A v Minister for Immigration and Multicultural Affairs
[2002] FCA 356
•28 MARCH 2002
FEDERAL COURT OF AUSTRALIA
W265/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 356
Migration Act 1958 (Cth) s 476
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 referred to
Abebe v Commonwealth of Australia (1999) 197 CLR 510 referred to
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 referred toW265/01A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
W 265 of 2001RD NICHOLSON J
28 MARCH 2002
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W 265 of 2001
BETWEEN:
W265/01A
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
RD NICHOLSON J
DATE OF ORDER:
28 MARCH 2002
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
W 265 of 2001
BETWEEN:
W265/01A
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
RD NICHOLSON J
DATE:
28 MARCH 2002
PLACE:
PERTH
REASONS FOR JUDGMENT
The applicant, a citizen of Iran, arrived in Australia on 24 March 2000 and lodged an application for a protection (class XA) visa on 1 June 2000.
On 22 February 2001 a delegate of the respondent made a decision refusing to grant a protection visa to the applicant. On 28 February 2001 he applied to the Refugee Review Tribunal (“the Tribunal”) for review of that decision.
Following a hearing on 23 April 2001 at which the applicant gave oral evidence, the Tribunal made a decision on 28 June 2001 affirming the delegate’s decision not to grant a protection visa to the applicant.
On 29 June 2001 the applicant lodged an application for review of the Tribunal’s decision with the Perth Registry of the Federal Court pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”). The application was filed in person and contained no ground of review, the applicant stating: “the Tribunal’s decision must be set aside and I will send to you error of decision as soon as possible”. No grounds have since been supplied.
Applicant’s claims
The applicant claimed to fear persecution if returned to Iran for the following reasons:
(1)He belonged to a religious minority group called Al Hagh which was not recognised by the Iranian Government, and as a consequence of which its members were not allowed to study in higher education, work in government positions, or be represented in Parliament;
(2)He was involved with the Nahzat Azadi Party, which he claimed was illegal;
(3)He distributed newsletters for the Nahzat Azadi Party while he was in military service as a consequence of which he was arrested, tortured and interrogated. He claimed that he was in prison for 2 years and 3 months;
(4)He took part in student demonstrations at Tehran University in July 1999. His photograph was taken at the demonstration and published in a magazine;
(5)He took part in election campaigning in February 2000 by distributing posters against the incumbent President Rafsanjani. In 1997 the applicant and his brother joined the SECBDI Party. A Party member called Pirooz Davani was abducted and the applicant claimed he was associated with Davani in such a way that it placed him at risk of persecution and he was forced to flee the country;
(6)The applicant was associated with a number of reformist newspapers carrying out research and putting together news items;
(7)He was advised by letter from his sister in Iran that his brother and father had been arrested and tortured.
Tribunal’s reasons for decision
The Tribunal concluded that the applicant did not have a well-founded fear of persecution for a Convention reason. The Tribunal made the following findings and expressed the following reasons for its decision:
(a)The applicant’s claim that he was discriminated against because he belonged to a religious minority was not accepted. The applicant stated in the hearing that he gave up practising his religion when he became involved in politics and that he does not currently practise his religion. The Tribunal did not accept that there was a real chance of the applicant facing persecution by reason of his religion on his return to Iran. The Tribunal also noted independent evidence that religious minorities are barred from university and military service, whereas the applicant’s evidence was that he attended technical college and served in the military;
(b)The applicant’s claim to be a member of the Nahzat Azadi Party was accepted. The Tribunal found that the applicant was a member of the Party from 1984 to 1990 during which time, according to independent information, it was the sole opposition party in Iran with a degree of official recognition and it only became illegal in 1991. The Tribunal found that membership of the Party at this time would not of itself be sufficient to attract adverse attention of the authorities;
(c)The applicant’s claim to have been tortured and imprisoned for 2 years in 1987 to 1989 for handing out political materials, was not sustained. The Tribunal noted that at the time the applicant claimed to have been imprisoned, his military service record disclosed that he commenced service on 17 October 1986 and completed it on 19 April 1990. Since the applicant’s military record incorporates the period of his supposed imprisonment, the Tribunal did not accept that the applicant was in prison as he claimed;
(d)It accepted that the applicant took part in student demonstrations in Tehran University in July 1999. However it did not accept that a photograph identifying the applicant as a participant in the demonstration was published in Iran;
(e)The Tribunal did not accept that the applicant was actively involved in election campaigning in February 2000 by distributing leaflets against the incumbent President Rafsanjani. The Tribunal found the applicant’s evidence to be inconsistent on this point and also noted that Rafsanjani was not a presidential candidate at the election in question;
(f)The applicant was not actively involved with Pirooz Davani and the party known as Union for Democracy in Iran. The Tribunal did not accept that the applicant was present at the abduction of Davani, nor was the applicant associated with him in a way that placed him at risk of persecution, such that he was forced to flee the country;
(g)The applicant’s claim that his brother and father had been arrested and tortured, as disclosed in a letter that the applicant claimed to have received from his sister in Iran, led the Tribunal to conclude that these assertions had been fabricated to support the applicant’s application for a protection visa;
(h)The Tribunal did not accept that the applicant was associated with a number of reformist newspapers which closed down in early 2000. The Tribunal concluded that inconsistency between the applicant’s employment history as set out in his application for a protection visa, and his claim at the hearing to have worked with reformist newspapers, led it to conclude that he was not involved with the newspapers;
(i)The applicant made a further claim at the hearing that during the unrest at the Detention Centre at Woomera his photograph was taken, that this, along with his name and country of origin, were published in the Australian media, and the publication of his information would have brought the applicant’s identity to the attention of the Iranian authorities. The Tribunal carried out an extensive search of Australian media coverage of the Woomera incident and located a reference to the applicant in the AAP newsfeed dated September, 2000. The Tribunal considers that even if the Iranian Embassy did know the applicant’s name this would be of no significance unless they wished to detain the applicant. The Tribunal accordingly was not satisfied that the applicant had a political profile and was wanted by the authorities and therefore the authorities would not be concerned that the applicant was referred to in connection with the Woomera incident;
(j)The Tribunal accepted that the applicant left Iran illegally and went on to consider whether this fact would give rise to a fear of persecution on return to Iran. It noted independent evidence from the Department of Foreign Affairs and Trade that the most likely penalty would be a fine and the act of applying for asylum is not in itself an offence in Iran;
(k)Finally, the Tribunal considered the cumulative effect of the applicant’s claims. While it accepted that the applicant had been a member of the Nahzat Azadi Party and taken part in the Tehran University demonstration in 1999 it did not accept that these events were of sufficient magnitude to impute to the applicant an adverse political profile, such that he would be wanted by the Iranian authorities.
Applicant’s submissions
The applicant made oral and written submissions. This involved the Court in having translated materials written by him in his language in relation to which directions were made for further submissions to be filed following the hearing. The following points arose from those submissions.
Religion and military service
This involves claim (1) and finding (a).
The applicant submitted that when the Tribunal relied on country information to the effect that “religious minorities may not serve in the army” that did not mean the religious minority group was exempt from national service.
This was also relevant to claim (3) and finding (c). He claimed his national service commenced in 1985. After serving 21 months he went to prison. After that he came back and completed his national service.
With reference to the Tribunal’s reliance on the absence of any mention on the applicant’s military record of a period of imprisonment (AB451/4) the applicant submitted that imprisonment would not be recorded on a birth certificate or national service completion card.
These submissions all invite the Court to remake the findings of fact of the Tribunal, which it has no jurisdiction to do.
Distribution of anti-Rafsanjani leaflets
This relates to claim (5) and finding (e).
The applicant claimed that the interpreter had made a mistake and that Hashameer Rafsanjani was a candidate for Parliament, not for the Presidency. However the passage relied upon by the Tribunal is taken from the submission of the applicant and expressly refers to the candidacy for the Presidency. As the Tribunal’s reasons record, it was aware that Rafsanjani was a candidate for a seat and that there was an alleged misunderstanding due to the interpreter. It made its findings in the face of this knowledge.
Involvement with Pirooz Davani
This relates to claim (5) and finding (f).
The applicant disputes the reliance by the Tribunal on a claim made by him that his younger brother was present when Pirooz Davani disappeared. However, the Tribunal was entitled to rely on the applicant’s own representation.
Involvement with reformist newspapers
This relates to claim (6) and finding (h).
In his response in a questionnaire upon arrival the applicant stated that his employment was in welding, gas tank manufacturing, water tanks and bridge building. The applicant states that in his interviews with case officers he clearly stated he had involvement with the reformist newspapers although he was not an employee of a newspaper or a weekly paper. He refers to other evidence which he asserts would support a finding of his involvement with the newspapers. He says the Tribunal did not pay enough attention to evidence that he was responsible for organising publicity for the newspaper and for the papers of the Ettehaade-e chap for Democracy in Iran. He had given the Court some details of his caricature work which had been published in the newspaper.
The other matter addressed in relation to reformist newspapers was action taken to close them down. His advisor provided a response to the Tribunal, quoted in the reasons (AB456/5) which he now says is flawed. This was considered by the Tribunal in connection with its rejection of the link between any raid on Sahabi’s premises and the applicant’s arrest. The Tribunal therefore rejected what the applicant now says never happened anyway. It is therefore not of any materiality.
Arrest of father and brother
This relates to claim (7) and finding (g).
It was open to the Tribunal to reject the evidence contained in letters from the applicant’s sister. That view was not precluded by other documents to which the applicant made reference.
Photograph at Woomera
The submissions made for the applicant in relation to this portion of the reasons (AB457-458) invite this Court to, impermissibly, engage in remaking the decision of the Tribunal. That is, it invites the Court to engage in merits review which its jurisdiction does not allow.
Departure from Iran illegally
This concerns finding (j).
In the course of this consideration the Tribunal reached the view that illegal departure from Iran would not of itself and taken on its own give rise to a well-founded fear of persecution on return to Iran. It relied upon independent evidence to do so. The applicant seeks to have this finding of fact reargued as to its merits, in which this Court has no jurisdiction to engage.
Involvement in the Nahzat Party
The Tribunal recorded (AB437/8) that a document had been supplied to the Tribunal stating he was arrested for involvement in the Nahzat Party and for unlawful possession of a weapon and that there was no mention of spying or cooperating with foreign embassies. The applicant’s submissions argue for the views which the Tribunal ought to have taken in relation to these matters and thus invite the Court to engage in merits review.
The same applies to matters raised on p 7 and the subject of the applicant’s submissions.
Other matters
The Court has examined other matters in the papers translated to the Court. None of them take matters beyond a complaint by the applicant as to the merits and his suggestions as to how the Tribunal ought to have reached its decision.
Reasoning
There is nothing in the Tribunal’s reasons for decision, particularly in the section under the heading “Findings and Reasons” which would suggest that the Tribunal did not correctly interpret the applicable law in arriving at its decision or that it misdirected itself in any other way.
The Tribunal’s reasons for decision show that it did not incorrectly apply the law to the facts as found by it. Having regard to the findings of the Tribunal, the Tribunal’s conclusion was open to it on the facts: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 576; Abebe v Commonwealth of Australia (1999) 197 CLR 510 per Gleeson CJ and McHugh J at 544-545.
I have also had regard to Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [82]. I do not consider that the issues which the applicant has raised show that the Tribunal identified a wrong issue, asked a wrong question, ignored relevant material or relied on irrelevant material in a way that affects the exercise of power and so constitutes an error of law. The applicant has argued strenuously that the Tribunal ignored considerable relevant material. In my view, however, his submissions are such that they invite this Court to say that the Tribunal should have viewed the relevant material in a different way to that which it did. That is an invitation to engage in merits review which, as has been said, lies beyond the jurisdiction of this Court.
Conclusion
For these reasons I consider the application for review should be dismissed.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice
RD Nicholson.Associate:
Dated: 28 March 2002
W265/01A represented himself Counsel for the Respondent: Mr AA Jenshel Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 17 December 2001 Date of last written submissions: 13 February 2002 Date of Judgment: 28 March 2002
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