W287 v Minister for Immigration and Multicultural Affairs

[2002] FCA 555

FEDERAL COURT OF AUSTRALIA

W287 v Minister for Immigration & Multicultural Affairs [2002] FCA 555

MIGRATION - judicial review - refugees - Refugee Review Tribunal - decision of Tribunal turned on questions of credibility - discrepancy between statements in initial interview and later interviews - no question of principle - application dismissed.

Migration Act 1958 (Cth)

W287 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W287 OF 2001

FRENCH J
2 MAY 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W287 OF 2001

BETWEEN:	W287 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	2 MAY 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicants 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	W287 OF 2001

BETWEEN:	W287 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	2 MAY 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

1. The applicants are nationals of Iran.  They are father and son.  They arrived in Australia on 2 November 2000 without lawful authority.  They lodged applications for protection visas with the Department of Immigration and Multicultural Affairs (“DIMA”) on 22 February 2001.  A delegate of the Minister for Immigration and Multicultural Affairs refused their applications on 20 April 2001.  On the same day they applied to the Refugee Review Tribunal (“the Tribunal”) for review of that decision.  On 26 June 2001, the Tribunal affirmed the decision not to grant protection visas.  On 10 July, an application was lodged on behalf of each of them for an order for review of the decision of the Tribunal. 

   Evidence and Claims

2. The first interview with the father was conducted by an officer of DIMA on 13 November 2000.  The officer’s record of the answers to the question “WHY DID YOU LEAVE YOUR COUNTRY OF NATIONALITY (COUNTRY OF RESIDENCE)?” reads:

   “HIS SON WANTED TO LEAVE IRAN.  FOR A BETTER FUTURE FOR HIS 3 CHILDREN.”

   Asked if he had any reasons for not wishing to return to his country of nationality, the father said:

   “DESTROYED HIS PASSPORT, HE WOULD BE QUESTIONED BY AUTHORITIES.  HE HAS BORROWED MONEY FOR THE TRIP.  WOULD NEED TO REPAY IT.  WANTS TO WORK HERE TO SAVE UP FOR THIS.”

3. The son was interviewed on the same day.  His recorded reason for leaving Iran referred to the difficulty of obtaining employment after graduating in that country particularly for fee paying students, as he was, at Azad University.  He also mentioned economic factors and said that he could not earn enough money to live on while studying to be an engineer.  He  referred to the political situation in Iran.  Young people have to undertake national service for two years or more whether or not they have completed their education.  He was lucky enough to be able to afford to buy his national service card.  He expressed the view that government policy should be changed governing who could go to a government university and who could go to the open university.  His reasons for not wishing to return to Iran were that it had cost a lot of money to get to Australia and that if he went back he would not have any university place.  He also said that if returned he would be put in prison because he didn’t have any passport. 

4. More elaborate claims were made in support of the formal application for a protection visa.  The applicant father said he came from a family which was opposed to the Iranian government from the beginning of the revolution.  His father had been an officer of the army during the rule of the Shah.  He had been imprisoned for a couple of years after the revolution.  He was persecuted severely by Islamic authorities.  In the last days of his service he had been sent into exile at a place called Roudsar.  The applicant father and his brother engaged in anti-regime activities in Roudsar which sometimes resulted in them being held in custody.  Roudsar being a small city there was not a lot to do there.  The applicant father had a cousin who was an active member of Mujahedin Khalgh Organisation (MKO).  The applicant father’s brother began cooperating with that organisation.  He helped the Mujahedin in Islamabad and was cooperating with them until the Mersad Operation in which a lot of Mujahedin were injured and killed.  The applicant father said that while his cousin was caught and executed by the regime his brother escaped from Iraq and went on to Turkey and eventually to Japan then Korea.  He married there. 

5. The applicant father continued his activities with the MKO in 1988 and 1989.  He said he used to distribute MKO leaflets among the people and multi-copy speech cassettes. 

6. The applicant father bought a shop in the Bazar Tehran.  He went to Korea to bring clothes and other materials to supply the shop.  When in Korea he used to contact MKO in France and take instructions from them.  He did that with his brother’s help.  In August 1999, MKO assassinated a prison superintendent during a period in which many MKO members were killed in the prisons.  The assassination occurred near Bazar Tehran and many shop owners whose shops were near the scene were arrested.  The applicant father was one of those arrested.  He was held, questioned and harassed for a while and then released because there was no evidence or reason to keep him.  Although he was against the regime and did everything to make people aware of its oppressive character, he was opposed to assassination because he did not think it was very useful.  He put his emphasis on propaganda.  Following the assassination he decided to double his activities.  He acquired a shop around the Bazar to use as an office for propaganda.  That was in 2000.  He bought a fax machine and a copier as well.  The shop was near his existing premises.  He went to an old friend who owned a printing house and who agreed to let him use the printing house on late nights and holidays.  He told his brother about these activities.  The brother was to send him leaflets and cassettes of the Mujahedin and the applicant father was to multi-copy and distribute them.  He claimed they were very successful.  He printed MKO material in “huge” numbers.  The leaflets he produced concerned internal issues in Iran.  He said they dealt with the assassination of scholars, embezzlement inside Tehran municipality and the lack of freedom in the country generally, including the closure of major newspapers and the arrest of their editors.

7. The applicant father said he was not on the military side of the MKO.  He believed in cultural and educational work more than military action.  However, they were informing people about MKO’s military actions as well.  His son was a student with a lot of friends who agreed to distribute the MKO leaflets and CDs among the people.  He claimed the leaflets and the CDs gained a huge popularity. 

8. One day, according to the applicant father, Ettela’at forces caught some of his son’s friends while they were distributing leaflets.  His son rang him and the applicant father told him to leave the university immediately and come to his shop.  Some days later when he was in the printing house to sort out some financial issues his son called on his mobile phone and said that there were people in plain clothes at the Bazar Tehran shop who had asked the applicant father’s worker, Abbas, about his whereabouts.  After receiving this call the applicant father and his son went to his office immediately and collected all the leaflets and CDs.  They burnt some of the documents, collected the others and headed home.  They were on their way home when the applicant father’s father called him and said that Ettela’at had raided his house and found leaflets and other documents.  It was suggested he should go into hiding for a time.  The applicant father imagined that he would be tortured and executed by the regime if they caught him.  He said his cousin’s fate was before him and he had no choice but to flee the country.  Subsequently he arranged for forged Iraqi passports and with the help of a people smuggler he left Iran flying out to Malaysia, then Indonesia.  He travelled from Indonesia to Australia by boat.

9. The applicant father claimed that on the first day of his arrival in the detention centre he heard Iranians shouting over the fence warning them against mentioning anything political in their interviews.  They claimed that Australia and Iran were on good terms and the information they gave would leak to the Iranian authorities.  He also said that during his presence in Australia and at the detention centre he became familiar with the principles of Christianity and was converted to it.  He claimed to have become a formal Christian.  He said if he returned to Iran he would be arrested, interrogated, tortured and sent to the Revolutionary Court.  Following that he would be sentenced to death or at the very least a long prison term.  The applicant father’s application included an application for his son as a member of the family unit. 

10. In support of the application to the Tribunal a written submission was tendered by a firm of immigration consultants on 2 May 2001.  The history in that submission was consistent with that set out in support of the application for a protection visa.  The submission went on to deal specifically with adverse findings by the delegate who had refused the application.  There followed references to country information and general submissions relating to the application of the Convention in the particular case.

11. On 23 May, the Tribunal sent letters to both applicants pursuant to s 424A of the Migration Act 1958 (Cth) drawing attention to information which it was said might be a reason or part of a reason for deciding that they were not entitled to protection visas. Specifically these letters compared the statements in the initial interviews with those made in support of the application for a protection visa. They also referred to the claim of each applicant to have converted to Christianity and drew attention to the fact that neither had expressed any interest in Christianity during his first interview nor any wish to convert to Christianity. This, it was said, might indicate to the Tribunal that any steps taken towards formal conversion since arrival in Australia were not the result of a genuine spiritual conversion.

12. The immigration consultants responded to these letters on behalf of the applicants on 30 May 2001.  The submission drew attention to the applicants’ circumstances at the time of their initial interviews.  They were fearful for their lives and unaccustomed to trusting those in positions of authority.  They were frightened by rumours circulating through the detention centre that Australia was on “good terms with Iran”.  An article was enclosed describing a visit to DIMA by several important Iranian officials.  It was submitted that in context each applicant had a genuine and understandable fear that anything he said to the Australian authorities would be disclosed to Iranian authorities.  They had been through a long and stressful journey and fled a country where they legitimately believed their lives were in danger.   The Tribunal letter had also referred to inconsistencies in the evidence relating to the passports used to flee Iran.  At the initial interview the applicant father said he and his son had left Iran using genuine passports. Later he claimed they left on false Iraqi passports.  In accordance with an earlier submission it was said by way of response that the applicant father initially stated he left Iran on his own passport because he was frightened that Iranian authorities might have been able to find out what he said at the interview.  In relation to the claimed conversion to Christianity, it was said the applicants did not base their claims for a protection visa on their Christianity but rather on their fear of persecution.  Nevertheless it was submitted that their Christian conversions were genuine and did manifestly increase their risk of persecution given the attitude of the Iranian authorities towards Muslim converts.  It was said that both applicants had professed an interest in Christianity prior to coming to Australia through observing the behaviour of acquaintances.  Both stated their general knowledge of Christianity at interview citing their attraction to its principles of freedom and tolerance.  It was not until they arrived in Australia that they enjoyed the freedom to explore a religion other than Islam. 

13. In a further letter dated 4 June 2001, the immigration consultants sent to the Tribunal documentation said to relate to the position of the MKO as a dissident political organisation in Iran and its involvement in producing and distributing anti-government political material in that country.  Relevant extracts were translated for the benefit of the Tribunal by the immigration consultants. 

14. Further s 424A letters were sent by the Tribunal to the applicants on 5 June 2001. These related to the statement attributed to the applicant father at his initial interview that the current location of his brother was in Tehran. It was pointed out that in his statement to DIMA attached to the protection visa application he said that his brother had been living in South Korea for several years, was there in the year 2000 and was sending MKO leaflets and cassettes to him during 2000. In response, by letter of 12 June 2001, the applicants’ immigration consultants submitted that the reason why the applicant father did not disclose the fact that his brother was living in Korea at the time of his initial entry interview was because this fact was “…entwined with the rest of the Applicant’s political claims”. There were numerous reasons why the applicant did not disclose the full extent of his asylum claims at his initial entry interview.

    The Tribunal’s Findings and Conclusions

15. The Tribunal referred to the accounts given by the applicants of events in Iran and their departure from that country.  It summarised what the applicants said at two Tribunal hearings in answer to questions from the Tribunal.  At the second hearing the Tribunal had taken further evidence from the applicant father.  It asked questions to establish his familiarity with the MKO.  It revisited the issue of the initial interview and whether the applicant father had been warned by other detainees at the detention centre not to say anything about his political activities.  The Tribunal referred to evidence of the strict separation of new detainees from those earlier arrived at the centre.  It also questioned him about his claimed conversion to Christianity.  The son gave evidence at the first hearing but said he did not wish to give any further oral evidence at the second hearing.  He was also questioned by the Tribunal at the first hearing. 

16. The Tribunal took evidence from Reza Massali who is a self-described spokesman for the MKO in Australia.  In a written submission to the Tribunal he said some 120,000 MKO followers had been executed in Iran.  The Tribunal followed up by taking some oral evidence from Mr Massali by phone.  He told the Tribunal he had not heard of the applicants before being contacted about them by their advisers.  He had no independent information that they had distributed MKO material in Iran.  Asked whether it were possible that a genuine MKO supporter would convert to Christianity he said a member would definitely not do so, but a supporter certainly could.  It was not an important issue.  He had also not heard of the father’s cousin in South Korea as a person with long standing links with the MKO.  He said there were many supporters around the world who might be sending MKO material to relatives but he would not know anything about them. 

17. In its findings the Tribunal said it was satisfied that both applicants are nationals of Iran.  It also accepted that a person suspected of supporting or assisting the MKO in Iran is at considerable risk of imprisonment and torture by Iranian security agencies.  It placed no weight on the fact that Mr Massali could not confirm that the applicants had any links with the MKO as he had told the Tribunal he would not know the identity of any MKO contacts inside Iran and was unlikely to know many of its supporters in other countries.  

18. The Tribunal observed that the applicant father showed some familiarity with the MKO during the Tribunal hearings which might signify that he had had some exposure to the MKO in the past.  It referred to his claim to have engaged in anti-regime activities in Roudsar where he lived between 1980 and 1990 and that these activities subsided after he married.  It could be the case that during his period of detention in Australia, when he had been in the company of other Iranian since at least February 2001, he had been able to obtain such information.  The Tribunal was therefore not able to establish with any degree of confidence when and how the applicant father learned about the MKO’s distribution of materials and information in Iran.

19. In relation to the initial interview, the Tribunal referred to the explanations given by the applicants for failing to make any reference to their relevant claims at that time.  After considering their separate interviews and their explanations for the discrepancies the Tribunal concluded that the account of their reasons for leaving Iran given during the initial interview of 13 November 2000 was a true account.  It did not accept that either applicant left Iran because he had been distributing MKO materials.  Nor did it accept that either applicant was suspected of such activities at the time he left.  It also found that they left legally and openly using their own passports.  The Tribunal found that the applicant father left Iran because he wanted a better future for his children and in order to accompany his son.  It found that his son left Iran because he wanted to improve his education and employment opportunities and because he resented having to pay for his university education. 

20. The Tribunal was of the view that neither applicant would be imputed with an anti-government political opinion merely for having tried to migrate to another country, nor for having lost or destroyed his original passport.  The Tribunal was satisfied that neither applicant would face any serious penalty on return because of his attempt to migrate and the loss of his passport.  If there were some penalty it would not be motivated by any Convention reason.  On the question of the conversion to Christianity, the Tribunal found that the applicant father was baptised into the Catholic Church in January 2001 and that he had continued to participate in some Christian services at the detention centre and to pursue an interest in Christianity.  The son had not claimed to have formally converted to Christianity nor to have pursued his interest in Christianity while in the detention centre.  He did not claim to have any fears in Iran as a result of his interest in Christianity.  For the sake of completeness the Tribunal found that he did not have a well-founded fear of persecution in Iran as a result of his interest in Christianity.  In relation to the applicant father, the Tribunal found the chance to be remote that he would be subjected to persecution because of his conversion.  It noted that converts are generally tolerated as long as they maintain a very low profile.  The Tribunal was satisfied that the applicant father intended to do that.  He had not claimed he intended to proselytise Muslims and conceded he was not required to do so by his faith.  In the event the Tribunal found that the applicants did not have a well-founded fear of persecution for a Convention reason in Iran.

    The Application for Review

1. The application for an order for review of the decision of the Tribunal was filed on 10 July 2001.  The only stated ground was in the following terms:

   “The applicant respectfully submits that the decision of the Tribunal is wrong and unjust, in that it has jeopardize (sic) his chances of remaining alive and well, by forcing him into a position where,

   a)He will be deported directly to  IRAN, where his life will be put in grave danger.”

   No ground of review arising under the Migration Act 1958 (Cth) was evidenced by this application.

   The Applicants’ Submissions

2. The applicants represented themselves and appeared with the aid of an interpreter via video link at the hearing of the application.  There was a suggestion at the beginning of the hearing that the applicants had arranged legal representation which was unavailable for the date of the hearing.  The matter was adjourned briefly and inquiries were made which confirmed that the person named, who is the manager of the Law Society’s Community Service called “Law Access”, had been unable to arrange representation for the applicants.  The matter therefore proceeded.

3. The submissions of the applicants dealt with factual matters and went to the merits of the decision.  No ground of review was disclosed by these submissions nor by anything apparent to the Court from the reasons of the Tribunal.

   Conclusion

4. No ground of review has been exposed in this case.  The applicants have essentially attacked the merits of the decision by referring to aspects of the factual findings.  The application must be dismissed.

I certify that the preceding twenty four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French .

Associate:

Dated:            2 May 2002

The applicants appeared in person via video link
Counsel for the Respondent:	Mr PR Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 April 2002
Date of Judgment:	2 May 2002