W313 v Minister for Immigration and Multicultural Affairs

[2001] FCA 1483

FEDERAL COURT OF AUSTRALIA

W313 v Minister for Immigration & Multicultural Affairs [2001] FCA 1483

W313 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W313 OF 2001

FRENCH J
17 OCTOBER 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W313 OF 2001

BETWEEN:	W313 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	17 OCTOBER 2001
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	W313 OF 2001

BETWEEN:	W313 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

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

REASONS FOR JUDGMENT

1. The application will have to be dismissed because the Court cannot interfere with the findings of fact made by the Tribunal.  The argument put up dealt with the way in which the Tribunal accepted or rejected evidence.  If the Tribunal decides to accept some evidence and not accept other evidence, the Court cannot interfere with that decision.  The Australian Government has passed laws under the Migration Act 1958 (Cth) which forbid the Court from interfering with decisions of the Tribunal about the evidence and about the facts. That is why so few applications succeed before this Court. Most applications to this Court challenging the Refugee Review Tribunal do not succeed.

2. The applicant is a citizen of Iran who arrived in Australia on 20 December 2000.  In his initial interview he was asked why he left Iran.  He said he had received a summons to appear in court because of his involvement with the political Pan Iranist Party.  He said his uncle was also a member.  He said his house was searched several times by security agents but he was not home as he was summoned to appear in the court.  His uncle is one of the leaders of this party.  He told his uncle about his house being searched and he was advised to do nothing.  When he received the summons, his uncle called him and said he should leave.  That was around 27 October.  He also said in that interview that he had pamphlets in his house belonging to his political party and these were found during the search.  These were pamphlets which were distributed at night.  It was his duty to distribute these pamphlets in the smaller towns.  His job in the political party was to distribute pamphlets and the party newsletter.  He was to co-ordinate meetings in his town with members.  He was also to write slogans on walls.  For this he could be gaoled for a minimum of fifteen years.  The pamphlets were mainly critical, informing the people of what was happening in the country with the government.  They contained information leaked from government officers about corruption by authorities and officials.  He said he was concerned that if arrested and tortured, he might divulge the names of other members.  He said he thought it would be very difficult for him to return to Iran because of the problem he had there.

3. On 6 January, the applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  He made a statement, which was prepared by his solicitors, in support of that application.  In that statement he said that he is a fitter and turner and is married.  He is a Muslim Shi'a and his ethnic group is Persian.  He said he was a supporter of the Pan Iranist political party since 1987.  He became a member of it in 1997.  His uncle was a leader of the Party.  He then described his activities as he had done previously.  He referred to the arrest of two of his friends in September 2000.  They had been arrested while writing anti-government slogans on the walls of the city.  He was away attending a funeral when he was told.  His family telephoned him and told him the news so he did not return to his hometown.  Instead he went to Teheran to wait and see what happened back home.  He gave his telephone number of a friend in Dezful who could reach him in case of emergency.  He told three other party members of the arrests and also told his uncle.  His uncle told him to wait in Teheran for a while until things were sorted out.  He waited in Teheran until 26 September.  He then received a call from his contact in Dezful.  He was told that his house had been raided three times by security forces and there was a summons for him to present himself to the court in Dezful.

4. At the end of October his contact in Dezful got in touch with him again and told him the party was arranging for his escape from Iran.  He was told that one of the people who had been arrested had died due to the severe beatings he had received.  The other was in prison.   On 6 November, he was told to meet his Dezful contact at Ferdosi Square in Teheran.  There he was given two passports, his own and a false one.  He was also given an airline ticket and a copy of the summons that had been sent to his house.  He was told to use the false passport to get on the plane and there he would meet a person to whom he should give that passport.

5. On 27 February 2001, a delegate of the Minister refused the grant of a protection visa.  On 28 February, the applicant applied for a review of that decision.  That was an application to the Refugee Review Tribunal.  A written submission in support of his application was made by his migration agents and, in substance, gave the same account of events which he had given earlier.  In it it was also said that the Pan Iranist Party supports the idea of a monarchist government.  A Tribunal hearing, which was conducted with the assistance of an interpreter, proceeded on 23 May.

6. On 28 June, the Tribunal affirmed the decision not to grant a protection visa.  In its reasons for decision the Tribunal reviewed the evidence. It reviewed the claims made by the applicant at his initial interview.  It referred to his submission to the delegate of the Minister and the submission which had been sent to the Tribunal.  It referred to a fax received by the Tribunal with a translation of a letter saying that he and his cousin were members of the Party and that they had recently encountered problems.  His cousin who had come out to Australia at the same time appeared as a witness at his hearing.

7. The Tribunal considered that the applicant had given detailed answers to the delegate about the distribution of pamphlets and other information.  However, it did not find him clear or convincing about the Party philosophy and exactly what it stood for.  His answers did not reflect the central idea of a "Greater Persia", which is the central plank of the Party.  The Tribunal did not give any weight to the letter from the Dutch office of the Party saying that he was a member.  This was because the letter also said his cousin was a member and the Tribunal found that information was not correct.  Secondly, the letter was prepared at the applicant's request by telephone in March.  That was after the delegate's decision.

8. The Tribunal did not accept that the applicant was related to the man, whom he claimed was his uncle and a leader in the Party.  This claim could not stand up with the fact that he had only been a member of the Party himself since 1997.  It was unlikely that he would wait until 37 before joining the Party.  The Tribunal also noted that he tried to suggest his uncle was just an inactive figurehead.  He did that when he was asked about the fact that his uncle had not come to any harm from the authorities and indeed another person, Dr Mohsen Pezeshkpour is named as the leader of the Pan Iranist Party in the Europa Yearbook.

9. The Tribunal found it highly coincidental that his friends who were arrested were in Dezful and he was not at that time.  There had been no discussion among them of possible danger from the security forces.  The Tribunal did not accept that his friends had been arrested.  It looked at the claim that a summons had been issued against him.  A copy of the first summons was located on his cousin's file.  This was for a matter relating to the adoption of his daughter and he had been summoned to appear on 28 August.  The first time the second summons was mentioned was at the Tribunal hearing.  It was never produced, nor were its contents explained.

10. The Tribunal did not accept that the applicant was discovered to have been a member of an illegal political party.  It thought he would have been directly arrested rather than have a summons served on him.  It did not accept that he was a suspect or that his house had ever been raided.  The Tribunal concluded that the applicant was not a member of any illegal party and did not carry out any illegal activities.  It did not accept that the authorities were interested in him at his departure.  It concluded that there was no real chance that he would be persecuted for reasons of his political opinion.  The applicant claimed that he would face harm for his illegal departure from Iran, but the Tribunal did not think he had left Iran illegally and the worst that would happen is probably a fine for illegal departure, if he were returned to Iran.  On all the evidence, the Tribunal was not satisfied that he was a person for whom Australia had protection obligations.

11. The applicant went through a number of points which were essentially in rebuttal of the Tribunal's findings.  There were some ten points in all.  As I have already explained, it is not open to the Court to interfere with the decision of the Tribunal on the evidence that was before it.  Even if the Court thinks the Tribunal was wrong in making that decision, the Court can only review the Tribunal's decision for error of law or procedure.   The application must therefore be dismissed with costs.

I certify that the preceding ten (10) 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 RL Hooker
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 October 2001
Date of Judgment:	17 October 2001