W314 v Minister for Immigration and Multicultural Affairs

[2001] FCA 1484

FEDERAL COURT OF AUSTRALIA

W314 v Minister for Immigration & Multicultural Affairs [2001] FCA 1484

W314 v Minister for Immigration and Multicultural Affairs
W314 of 2001

FRENCH J
17 OCTOBER 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	314 OF 2001

BETWEEN:	W314 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	314 OF 2001

BETWEEN:	W314 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 who is a citizen of Iran arrived in Australia on 20 December 2000.  He was interviewed on arrival by an officer of the Department of Immigration and Multicultural Affairs.  He was asked why he left his country of nationality.  He told the officer that he was a supporter of the Pan Iranist Party, but not an official member.  He said his uncle had told him not to become an official member.  He said that the Pan Iranist Party is not recognised by the present government.  Two members of the group he supported had been arrested, taken away and tortured.  One of them had been killed.  He said his cousin had been summoned to court.  His cousin had fled and run away.  His uncle advised him to flee before he received a summons for court.  He fled from Iran.  He told the officer that if he returned to Iran he would be arrested and tortured as his friend was. 

3. On 6 January 2001, the applicant lodged an application for a protection visa.  There was a supporting statement with the application which was prepared by his solicitors.  In that statement he explained that he had been studying engineering at the Azad University in Iran.  He was married with a wife and daughter.  While studying he was working as a salesman in his father's shop.  His religion is Muslim Shi'a and his ethnic group is Persian.

4. He said that his uncle is one of the leaders of the Pan Iranist Party which is an anti-government political party.  He started to become involved in the party's activities in 1996.  He had been advised not to become a member but to function as a member as it would be safer.  He said that he was promoting the party's ideas and trying to attract new members.  He distributed party pamphlets which had anti-government slogans.  He also distributed special pamphlets telling people about corruption in government.  In 1999, he became more active and distributed party propaganda to university students.  He tried to attract student members.  His area of activity was Shooshtar.  He received his orders and instructions through a cousin.  His cousin is the applicant in other proceedings heard at the same time as these. 

5. One day two members or supporters of the party were arrested for writing anti-government slogans on walls.  His cousin was summoned to court.  His cousin told him of what had happened.  He was afraid that if his cousin were caught, he would be arrested too.  His uncle said it would be best for both of them to leave the country.  The two people who were arrested might give his name to the authorities.  He said he went to stay with his father-in-law in Isfahan.  Two weeks later the party arranged for him to leave.  He said he travelled to Teheran Airport.  He went through the gate where he was directed by his uncle and onto the plane.  He travelled with his cousin to Malaysia, then Indonesia and finally Australia.  He said he was afraid if he went back to Iran he would be killed because of the severe torture he would receive.

6. On 27 February, the delegate of the Minister refused the grant of a protection visa and on 1 March the applicant applied to the Refugee Review Tribunal for a review of that decision.  In a letter from migration agents acting on his behalf a submission was made to the Tribunal.  The submission was substantially as previously stated.  It conveniently summarises the claim:

   "The uncle of the Applicant is one of the Pan Iranist Party, with which the Applicant began to become involved in 1996, through such activities as distributing pamphlets on behalf of the party.  In 1999, while a student at university, the Applicant became more actively involved in the Pan Iranist Party, distributing party propaganda and recruiting more student members to the party.  The Applicant's cousin, […], was also involved with the Pan Iranist Party.

   In June 2000, two members of the Pan Iranist Party in the Applicant's region were arrested for writing anti-government slogans on walls, and [the applicant's cousin] was summoned to court.  Fearful that his name would be given to the authorities and that he too would be arrested and tortured, the Applicant fled to Isfehan on the advice of his uncle.  The Applicant heard through his sources that one of the party members arrested had been beaten to death.  Terrified for their safety, the Applicant and his cousin left the country two weeks after arriving in Isfehan."

7. The submission made on behalf of the applicant then went through the reasoning of the departmental delegate.  It set out the relevant provisions of the law and the Convention.  There was a subsequent letter, written on 9 May, which made some corrections to the first letter.  In particular, it said that the date upon which two members of the party were arrested was September 2000, not June 2000.  It also enclosed a translated letter from the European office of the Pan Iranist Party.  The letter confirmed that the applicant and his cousin were both members of the Pan Iranist Party.  It said they had encountered problems as a result of their membership.

8. The hearing before the Tribunal proceeded on 23 May.  On 31 May, there was a further letter from the applicant's migration agents to the Tribunal.  That letter concerned the fact that the applicant was able to leave Iran using his own passport.  It mentioned documents found on the applicant when he arrived in Australia.  It also pointed out to the Tribunal that the error about the date of the arrest was not the applicant's fault but was the fault of the migration agents.  There was also reference to information from the Pan Iranist web site. 

9. The Tribunal gave a decision on 28 June affirming the decision not to grant a protection visa.  In its reasons it reviewed the claims and evidence made on behalf of the applicant.  It was the same Tribunal as heard his cousin's case.  In its findings and reasons the Tribunal said it had grave concerns about the credibility of the applicant.  It referred to his claim that he was not a member of the Pan Iranist Party, yet the letter from the Party's office in Holland said he and his cousin were members of the Party.  It said he was unable, at the hearing, to give the Tribunal very much information about the Party.  He said it was neither a party of the right nor the left.  They would have meetings in an orchard once a month, but his cousin had said there were no meetings and then that there were meetings.  His reason for leaving Iran was the arrest of two of his fellow activists.  However, he did not give membership of the party as a reason for leaving.  Because of this, the Tribunal was not satisfied that he performed any activity for the Pan Iranist Party.

10. The applicant's adviser also argued that just because he left Iran with his own valid passport did not mean he had left legally.  The Tribunal did not accept that claim.  It had regard to information that exit processes at the airport in Teheran were stringent.  The applicant had not indicated that the authorities had any interest in him for any reason.  His departure from Iran would not have raised interest in him for any reason.  His departure from Iran would not have raised suspicion.  The time when he left Iran is not clear.  He had said 7 November 2000.  He also said it was after two members of the Party had been arrested.

11. The Tribunal referred to the corrected dates for the arrest from June to September.  Accepting that it was September, the Tribunal said that he would have, on his own evidence, spent part of September, all of October and part of November in Iran.  This would have given the authorities ample opportunity to seek him out even if he was in Isfahan.  The fact that he was able to remain undisturbed for that length of time indicated that the authorities had no interest in him.  The applicant challenges the Tribunal's findings. For example, he says that Isfahan is a big city and that he was hiding, but this, like so much of what he put to the Court, is a matter of evidence.  He invites me to a review of the Tribunal decision on the basis that it was wrong in fact.  As I have already indicated to the applicant, that is something the Court does not have power to do.  The application must therefore be dismissed with costs.

I certify that the preceding eleven (11) 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