W317 v Minister for Immigration and Multicultural Affairs

[2002] FCA 508

FEDERAL COURT OF AUSTRALIA

W317 v Minister for Immigration & Multicultural Affairs [2002] FCA 508

MIGRATION - judicial review - refugee - Refugee Review Tribunal - Tribunal findings of fact - discrepancy between applicant’s initial statements on arrival in Australia and subsequent explanations for departure from Iran - allegation that explanation cut off by initial interviewer - whether Tribunal had duty to inquire into initial interview - late explanation - no duty on Tribunal to inquire further - whether Tribunal wrongly rejected corroborative evidence from witness - no ground of review - application dismissed.

W317 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W317 OF 2001

FRENCH J
18 APRIL 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W317 OF 2002

BETWEEN:	W317 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	18 APRIL 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	W317 OF 2002

BETWEEN:	W317 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	18 APRIL 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant is a citizen of Iran.  He arrived in Australia on 30 September 2000.  Shortly after his arrival, on 5 October 2000, he was interviewed by an officer of the Department of Immigration and Multicultural Affairs.  There is a written record of that interview in which he was asked why he left his country of nationality.  The record of the answer to that is as follows:

   “Because of the atmosphere in Iran.  I was being harassed about the style of haircut - it was a Western style haircut.  Being harrassed (sic) by Komieteh, Amaken - part of the security/disciplinary forces.  This group surveys all businesses - they said don’t do this kind of haircut.  I had to close the shop & then I re-opened it.  About a year later I worked in another area as a hairdresser and again I was harassed by Basiji.”

2. The record of the original interview also contained the question, “DO YOU HAVE ANY REASONS FOR NOT WISHING TO RETURN TO YOUR COUNTRY OF NATIONALITY (RESIDENCE)?”  The answer recorded to that question was:

   “Can’t cut hair in Iran to the style requested by customers. Without customers I have no work.”

   The applicant now says that he was not permitted to tell his whole story in answer to the questions put.  He has subsequently complained that he tried to complete his statements about why he left Iran but that the interviewer terminated the interview. 

3. On 27 February 2001, the applicant made an application to the Department for a protection visa, which was received on 1 March 2001.  In support of his application, which was prepared with the help of an adviser, there was a full explanation of why he left Iran.  He said that in 1998 he had been summoned by a law enforcement guard to the Public Places Committee.  He was treated very badly and reprimanded for cutting girls’ hair in a Western hairstyle.  He said that the girls were just kids under ten years and he cut the customers’ hair as they wanted it.  It was not his choice.   His reasons were not accepted and he was sentenced to forty lashes and to the payment of a financial penalty.  His shop was closed down for three months. 

4. The social pressure on the applicant was so severe that after three months he had to sell the shop.  He was unemployed for a period.  He rented another shop and started work again.  Not long after he started his new job a dispute erupted between two of his customers.  One of them, who was an Ettela’at guard, pulled a gun on the other and took him outside the shop.  The following day the man who had pulled the gun came to the shop. He took the applicant into custody in a curtained car.  The applicant said he was taken to a place he did not know and was blindfolded.  He found himself in what he described as a dim, fearful room.  He was told that the person who had been arrested in his shop the day before had confessed everything. It was alleged that whenever that person had come to the shop he had discussions about politics and the Vellayat-e-Faqih. 

5. The applicant was told by his captors that it was better for him to give them the names of people who came to his shop and talked about these matters.  He told his captors that the person who had been beaten by the guard the day before had come to his shop for the first time.  The applicant told them the confessions were lies because he had done nothing wrong.    He said they started beating him severely.  When he opened his eyes he found himself in a dirty prison cell. 

6. The applicant said he was kept in detention for a month but finally released with the help of his family.  He said he went back to his job.  He had an old customer who was the chief editor of a newspaper.  He told him his story.  This man asked him if he was interested in writing.  He suggested the applicant write some articles and let him evaluate them.  If they were good enough he would publish them in his newspaper.  The applicant said he started to write articles for the newspaper as well as keeping his job as a hairdresser.  His first article was about members of parliament and their shortcomings.  He said it was hugely popular.

7. At the beginning of the year 2000 the applicant’s brother was working in the Zargan Power Station.  The brother was burnt very severely and died because of steam coming from pipes which had not been maintained.  Before this accident his brother had written to the authorities on three occasions telling them about the poor work conditions and reporting the deterioration of the pipes.  He decided to write an article for his friend’s paper and criticise the station authorities because until that time there had been no report about the station accident on any radio, TV or newspaper inside Iran.  He said he wrote about the accident.   He also wrote other articles.  He wrote an article about the problems with the water supply in Abadan and a strike in connection with it.  He said he was threatened by Ettela’at as a result.  They threatened to take his life.

8. The applicant said that one day when he was going to go to work from home his employee rang and said that two people had come to the shop and asked for him.  They were suspicious.  He did not go to work that day but hid in a safe place.  When he rang his mother she told him two armed guards had come to his home looking for him and had searched all the rooms.  He decided to flee Iran. 

9. The applicant also said, in support of his application for a protection visa, that when he reached Australia he was held in a detention centre.  He said the first day he had arrived in the detention centre people had shouted over the fence that he should not mention anything about politics.  He said they claimed Australia was on good terms with Iran and that it was extremely dangerous to mention anything political.  He said he was so afraid of being caught by the Iranian authorities and was so nervous that he did not mention the political side of his story.  It may be noted that he said nothing in his application about having been cut off in his explanations to the original interviewer.  He also said he feared that he would be arrested if returned to Iran.  He thought he would be interrogated, tortured and ultimately executed. 

10. On 21 March, following an interview with the delegate, the application for a protection visa was refused.  On 22 March, the applicant made an application to the Refugee Review Tribunal  (“the Tribunal”) for a review of the delegate’s decision.  Written submissions were made to the Tribunal by the applicant’s adviser on 16 May.  In those submissions the adviser dealt with various findings made by the delegate and replied to them.  One of the matters on which his adviser made a response concerned the difference between the initial interview and what was later said in support of the application for a protection visa.  The adviser requested the Tribunal to consider his situation at the time of his first interview.  He said the applicant had fled from his country with a lot of anxiety and fear and faced an uncertain future.  Upon his arrival he was warned by other detainees not to talk.  According to the adviser’s submission to the Tribunal, he naturally lost his confidence about what he was doing and as a result failed to substantiate his claims entirely. The adviser made a general complaint that the manner in which refugee applicants are questioned upon their arrival in Australia is not within international standards.  He said they are not properly advised about the Refugees Convention, they often find themselves deeply frightened and make contradictory statements.

11. The applicant gave oral evidence to the Tribunal at a hearing which was held on 24 May.  On 25 May, the Tribunal wrote to the applicant.  It invited his comment on the discrepancy between his original interview and the claims he was now making.  His adviser wrote back to the Tribunal on 28 May and reiterated that the applicant was afraid of being sent back to Iranian authorities when he first arrived at the detention centre.  Again he claimed that some people had shouted over the fence that he should not mention anything about politics because Australia was on good terms with Iran and because he was afraid of being caught by the Iranian authorities he was nervous and did not mention the political side of his story.  There was no mention of any failure by the original interviewer to let him tell his story.

12. The Tribunal gave its decision on 5 July and upheld the delegate’s decision to refuse to grant a protection visa to the applicant.  The Tribunal set out the claims made by the applicant.  It accepted his claim which he had made at the initial interview that some years ago he had been punished for cutting hair contrary to the Iranian law on hairstyles.  It observed that he had made that claim at his initial interview and at all times subsequently.  It accepted his claim that he had been fined and lashed and that his salon was shut for a period of time.  However it was satisfied that the law under which he was punished, however harsh, was a law of general application in Iran.  He had breached that law and persons who disobeyed that law were punished.  The Tribunal’s logic in that respect was that such a punishment did not give rise to a fear of persecution for one of the reasons under the Convention.  The Tribunal noted that he was able to continue his work as a hairdresser even after having been punished.  The evidence did not suggest that he was treated in any discriminatory manner for the breach of this law or that there was a Convention reason for the punishment.

13. The Tribunal then turned to the applicant’s claim that he had written political articles which were published in a newspaper.  It accepted that if he were a political writer for a newspaper he would be afraid of returning to Iran. In support of his claim he called a witness, a former detainee at the detention centre, who gave evidence to the Tribunal.  However, the Tribunal did not accept his witness as a witness of the truth.  The information was not provided by him to either the Department or the Tribunal until the day of the hearing.  The witness said he had not seen the applicant earlier and was not aware of the legal process.  The Tribunal said it was for the applicant to bring to the attention of the Department or the Tribunal the location and evidence of a witness who can corroborate his claims.  The Tribunal found that the applicant had the opportunity to mention the corroborative evidence when lodging his claim with the Tribunal.

14. I note that in response to the hearing invitation, the applicant wrote the name of the witness on a form provided by the Tribunal. This was on his response dated 19 September and it was said that his evidence would prove his claims.  The Tribunal found that his corroborative evidence only surfaced at the hearing.  It found that the applicant’s witness had fabricated his evidence in order to enhance the applicant’s refugee claim.  The Tribunal also noted that the applicant made no mention of the witness in his written application of 27 February.  The Tribunal’s decision in relation to the witness’s own application for review had been made on 12 March.  This indicated to the Tribunal that the applicant and the witness had time to provide his corroborative evidence at the time of the applicant’s written submission to the Department on 1 March.  The Tribunal rejected the witness’s explanation that he did not know legal procedures and so did not provide his information earlier.

15. The Tribunal therefore did not accept that the applicant was a witness of the truth and did not accept he wrote articles for a newspaper.  It accepted that one of his brothers died in circumstances in which the applicant believed the authorities were to blame.  It did not accept that he wrote articles about the incident.  It did not accept that he left Iran because authorities were pursuing him for writing newspaper articles critical of the government and it wasn’t satisfied that his home had been searched by authorities.  The Tribunal was of the view that he had made up these claims to create the impression that he was a political activist.  It did not accept that he was of any interest to the Iranian authorities at the time he left Iran.

16. The applicant lodged an application seeking to review the Tribunal’s decision in this Court.  The application was lodged on 19 July 2001.  There were two grounds of review on the application.  The first was that there was no evidence or other material to justify the making of the decision.  The second was that the decision involved an error of law.  Neither of these grounds was particularised or explained in the application. 

17. At the hearing of the application the applicant raised two principal matters of complaint about the Tribunal.  The first complaint was that the Tribunal had failed to investigate, as he requested, the tapes of his original interview upon entry.  It was his contention that this would have demonstrated that he had been cut off in his explanation for his reasons for leaving Iran.  This claim however, in my opinion, is not sustainable.  On two occasions the applicant, through his adviser, had opportunities to explain the discrepancy between what he said in his original interview and his later claims.  His original submission to the Tribunal and his reply to the Tribunal’s letter of 25 May made no reference to any suggestion that he had been cut off by the original interviewer.  He maintained the position that the reason he did not fully explain his claims was because he had been warned not to raise political matters by other detainees at the centre.  In the circumstances, the Tribunal was under no duty to make any further inquiry in relation to the allegations he now raises.

18. His second complaint relates to the Tribunal’s treatment of the evidence of his witness and, in particular, the Tribunal’s finding that the corroborative evidence from that witness only surfaced at the hearing.  He pointed out that in his response to the hearing invitation he had named the witness and said the witness would prove his claims.  It is clear, however, that the reference to the corroborative evidence made by the Tribunal was to the content of that evidence, which was not disclosed until the hearing.  The Tribunal made a finding adverse to the credibility of his witness on that basis.  In doing so it made a finding of fact which cannot be reviewed by this Court.

19. I raised with the Minister’s counsel the references made by the Tribunal to the opinions of the delegate on certain issues of credibility.  Having regard to the submissions made by the Minister’s counsel, and my own reading of those reasons, I am satisfied that these references do not involve any adoption by the Tribunal of the delegate’s views. 

20. I should also mention that the applicant made reference to guidelines contained in the Handbook of the United Nations High Commission for Refugees.  Those guidelines are not part of the law of Australia and they do not provide grounds for legal review of the Tribunal’s decision.  For these reasons the application must be dismissed.  The applicant is to pay the respondent’s costs of the application.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated:            April 2002

W317 appeared in person via video link
Counsel for the Respondent:	Mr PR Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 April 2002
Date of Judgment:	18 April 2002