W340/01A v Minister for Immigration and Multicultural Affairs
[2002] FCA 947
•7 AUGUST 2002
FEDERAL COURT OF AUSTRALIA
W340/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 947
MIGRATION – refugee – protection visa – application for review of Refugee Review Tribunal decision – Iranian photographer claimed harassment by Basij and Sepah Pasdaran - business closed down – applicant claimed to be Dervish, a sect linked with Sufism - whether real risk of persecution if returned to Iran – whether Tribunal failed to consider relevant matters or had regard to irrelevant matters – whether Tribunal failed to properly interpret the law or apply it correctly to the facts
Migration Act 1958 (Cth) ss 5, 13, 14, 36(2), 65, 189, 196, 476
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 cited
W340/01A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
W340 of 2001LEE J
7 AUGUST 2002
MELBOURNE (HEARD IN PERTH)
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W340 OF 2001
BETWEEN:
W340/01A
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
LEE J
DATE OF ORDER:
7 AUGUST 2002
WHERE MADE:
MELBOURNE (HEARD IN PERTH)
THE COURT ORDERS THAT:
The application be dismissed with costs.
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
W340 OF 2001
BETWEEN:
W340/01A
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
LEE J
DATE:
7 AUGUST 2002
PLACE:
MELBOURNE (HEARD IN PERTH)
REASONS FOR JUDGMENT
LEE J:
This is an application under s 476 of the Migration Act 1958 (Cth) (“the Act”) for review of a decision made by the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of a delegate of the respondent (“the Minister”) that the applicant not be granted a protection visa.
The applicant, an Iranian national and photographer by occupation, left Iran in May 2000 at the age of 23. He claims he left Iran in fear of persecution. On 19 June 2000 the applicant entered Australia’s “migration zone”, and under ss 13 and 14 of the Act, not being the holder of a visa issued under the Act, he became an “unlawful non-citizen” upon entry. Pursuant to ss 189 and 196 of the Act the applicant was detained and has been held in “immigration detention” at the Curtin detention centre near Derby in north-west Australia thereafter. The applicant does not speak English and has relied upon the services of an interpreter conversant in the Farsi language to understand and respond to questions put to him by immigration officers and the Tribunal, and to present his case for the grant of a visa.
The applicant was interviewed by an immigration officer on 30 June 2000 (“the entry interview”). On 1 March 2001, assisted by a migration agent, the applicant applied for a protection visa. On 4 March the applicant was interviewed by the delegate appointed by the Minister to determine the application. It is to be noted that there was an interval of eight months between the entry interview and the interview conducted by the delegate. On 2 April the delegate decided that a protection visa not be granted to the applicant. On the same day the applicant applied to the Tribunal for review of the decision. The Tribunal affirmed the Minister’s decision on 17 July 2001.
Under s 65 of the Act, if the Minister is satisfied that, inter alia, the criteria for a visa prescribed by the Act have been satisfied, the Minister is to grant the visa, but if the Minister is not so satisfied, the grant of the visa is to be refused. The only prescribed criterion relevant to this proceeding is that set out in s 36(2) of the Act.
At material times, s 36(2) of the Act provided as follows:
“A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”
In s 5 of the Act, “Refugees Convention” and “Refugees Protocol” (together referred to hereafter as “the Convention”) are defined respectively as “the Convention relating to the Status of Refugees done at Geneva on 28 July 1951” and “the Protocol relating to the Status of Refugees done at New York on 31 January 1967”. The phrase “protection obligations under the [Convention]” is not defined in the Act and is not a term used in the Convention.
The Convention is a treaty pursuant to which the “Contracting States” agree to apply the provisions of the Convention to “refugees”. Sub-Article 1(A) of the Convention provides the following definition of “refugee”:
“For the purposes of the present Convention, the term ‘refugee’ shall apply to any person who:…(2)…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;…”
Limitations upon the operation of the Convention definition of refugee are set out in, inter alia, sub-Articles 1(C), (D), (E) and (F). It was not contended that any of the foregoing sub-Articles applied to the applicant.
As a Contracting State, Australia has accepted the obligations imposed upon it by international law by reason of accession to the treaty. Numerous obligations in respect of refugees are set out in the Convention, including an undertaking by a Contracting State not to discriminate against a refugee, and to offer a refugee some of the opportunities available to a national of that State. All of those obligations could be said to come within a broad meaning of “protection obligations under the [Convention]” but, having regard to the purpose of s 36(2), the phrase as used in that subsection may be taken to refer to obligations imposed by the Convention that constitute direct, rather than indirect, obligations on a Contracting State to protect a refugee.
As part of the review of the decision of the Minister, the Tribunal conducted a hearing at Derby on 17 May 2001. The applicant appeared in person but the interpreter and the applicant’s adviser participated in the proceeding by telephone link.
As required by s 430 of the Act, the Tribunal provided a written statement which set out findings on material questions of fact, the evidence or material relied upon, and the reasons of the Tribunal. In that statement the Tribunal recorded the following summary of the applicant’s claims:
“The Applicant claims fear of persecution in Iran for Convention-related reasons of ‘political opinion’. More recently he has claimed fear of persecution in Iran for Convention-related reasons of ‘religion’, due to being a ‘Dervish’ (or ‘Darwish’), one of a sect linked with Sufism.
At his entry interview, the Applicant is reported to have stated that he was a single Shi’ite Muslim; he repeated this claim after engaging his migration adviser when cued to state his religion and its relevance in his primary application. In a written statement accompanying his primary application, the Applicant said he was born into a Muslim Shi’ite family; although he mentioned some conflict with Dervish people, he made no reference at all to being a Dervish himself.
No reference at all even to contact with Dervishes appears in the record of the Applicant’s entry interview. He is reported to have stated that his most recent address was in Tehran, where he lived for five years. If his departure date was one month and fifteen days before he attended his entry interview, as reported in that interview, the date of the interview being 30 June 2000, the day he left Iran must have been mid-May 2000. According to all this, then, he must have lived in Tehran since mid-1995. The Applicant claimed he worked as a photographer and makeup artist, a claim that he confirmed at all stages of his subsequent evidence-giving. He claimed he worked for ‘Mana (?) Photography’ from 1989 to 2000, for ‘Aram Photography’ from 1995 onwards and as a makeup artist and hair dresser for film and cinema from 1995 to 2000. He claimed he traveled on a genuine Iranian passport issued in his own name. He claimed he later threw the passport away. He claimed he applied for a visa for Australia in Tehran one month before his departure, but that he received no response. The Tribunal has not contacted the Australian Embassy to ascertain the result of the Applicant’s application; it notes, however, that this claim confirms that the Applicant applied for a passport in Iran and that he obtained one, for he could not have lodged an application for an Australian visa without it. This information is also evidence of an intention on the part of the Applicant to travel to Australia by orderly means up to a month before his actual departure from Iran; it is also evidence of an expectation on his part up to a month before he departed Iran that he would travel out of Iran legally, pending, of course, the issue of the Australian visa. The Tribunal notes that Australian visa applications are generally rejected or delayed owing to concerns regarding stated purpose of travel, suspected purpose of travel, finances or other bona fides. Seeming to clash with his evidence regarding his passport and visa application, the Applicant is reported to have said in his entry interview that he began planning to leave Iran three days before he left. The Tribunal takes this to mean that he began planning to leave Iran regardless of the Australian visa matter three days before he actually departed. He said he traveled directly to Malaysia where he stayed for four days and traveled on to Indonesia where he remained twenty‑eight days before boarding a boat for Australia. It is a widely reported fact that Iranians do not require visas for Malaysia, therefore that lack of a visa in his passport would not have affected his check-in at Tehran airport or his passage through to the departure gate.
In his entry interview, the Applicant reportedly stated that his reason for leaving Iran was that there was not much value for young people in Iran. He is reported to have said that he heard good things about a comfortable life in Australia, such as in the fields of study and work, e.g., photography. He said he did not want to go back because whatever one wants to do, ‘they’, presumably the authorities, object and fail to value one’s rights. Other reasons for leaving Iran were that ‘I studied for 4 years…in Chan Bahar in hot environment’ seemingly due to the children of martyrs getting all the best study places in more comfortable institutions. Since the Applicant later claimed, in his primary application, to have graduated from four years’ study at an industrial school in Chan Bahar, a suburb of Tehran, in June 1995, one sees good reason to be confident in the accuracy of the reporting of the entry interview.”
Before the hearing took place the Tribunal had before it statements made by the applicant in February 2001 in response to standard questions printed in the visa application form. Those statements were as follows:
“Q36. Why did you leave that country (IRAN)
I am [deleted], born into a Moslem Shi’ite Iranian family of three boys in Tehran on [deleted]. I was four years old when the Islamic revolution took place in my country. I arrived in Australia on 19 June last year and I have been in the closed section of Curtin detention center ever since. It is only now that I have been allowed to make an application for a protection visa.
Let me explain that I had an interview with an immigration officer through an interpreter shortly after my arrival in Curtin. I was feeling not well at all after my exhausting journey escaping from Iran and I was very worried about my family. In addition some of the other detainees who had already been interviewed warned me about saying too much at the first interview because, they said, Australia was in good terms with Iran and they might check the information I gave with the Iranian security. This worried me very much because of what could happen to my family in retribution. I should have been very careful about what I said and what I revealed, they told me.
Nevertheless I believe I answered the questions put to me truthfully though I did not go into every detail as I am doing now. I kept my responses general and short. The interviewer appeared satisfied and did not probe. Certainly after receiving advice and help I can now more fully explain about my problems in Iran in this application.
I can say I had an uneventful upbringing and completed my secondary schooling at an Industrial School in Chahbahar, a suburb of Tehran in 1995. But I could not get into the university.
I then did my compulsory military service from 1996 to 1999. It was while I was in the military that I set up a photography business and this brought me into conflict with the Islamic regime of my country. I had studied still photography and cinematography at the industrial school and so I knew how to take photographs and there were plenty of people who wanted good photos of themselves. I started the studio with my cousin [deleted]. We were able to gain the necessary permissions because he had been wounded in the Iran-Iraq war. In addition he had already had several years of experience in the photography business.
The problem that started for us was that most of our customers were women. They did not mind a man taking their photos but the fundamentalist male Islamists in the Basij and even the Sepah Pasdaran were violently opposed the women even those who took off their hijab veils for the photos [sic].
They made frequent visits harassing us and finally they shut us down for three months.
It was during this time that I tried my hand at being a make-up artist for actresses in stage and movie productions. But again their Basij and Sepah relatives made big problems for me.
After the closure I went back with [deleted] into the photography business. One day we had a visit from one of [deleted]’s army friends from the war, [deleted]. He asked us to do some cinematography for him.
We found out that he now worked for the Ettela’at when we came to the place for the filming. It was a party held at the home of an official named [deleted] and it was attended by Ettela’at and Sepah officials. [Deleted] was my camera assistant and kept running into old friends from his wartime days.
A few days later [deleted] came and collected the films we had shot. But he left without paying anything. I objected to this to [deleted] and he promised that it would not happen again. But [deleted] returned with another request for a filming job for him and again he did not pay. [Deleted] said we would not do any more work for him. While this was going on I still had to meet my military service commitments and so [deleted] did most of the work. I found out that he was still doing jobs for [deleted] because [deleted] threatened to have our studio closed.
Around the time of Ramadan in January 1997, [deleted] returned with virtual orders to us to do more work for him. But each time I made excuses to reject him. Suddenly I started to receive written warnings from my military service posts about my outside work. As a result my service period was extended on each warning and finally my military service lasted for three years instead of the normal two years.
So we reached an agreement with [deleted] under which we met his requests at no cost but he ensured we had no problems shooting photos and movies of wedding parties and so forth without interference from the Basij or Sepah.
After I completed my military service, [deleted] started to get work for us to film formal parties attended by senior regime officials such as [deleted]. [Deleted] worked with a friend [deleted] and called himself our manager – and as a result kept the profits for himself.
It was in September 1999 that we received a commission from a dance group, the Dervishes of [deleted] to shoot film of one of their parties. I shot the film and was mixing the production when [deleted] came by and saw me at work.
He required a copy of the footage and asked some questions about where it had happened. We found out later that he and his friend [deleted] were preparing a film about the Dervishes to show to the Supreme Leader Ali Khamenei. For the next four months they used our studio to prepare the film. At one point they arrested the dance troupe leader and some of his people and took them for interview. They shot footage of some of the interview to use them in the movie.
It was in March 2000, just before the Iranian New Year that they presented their film to the Supreme Leader. But our only reward was harassment. It started as threatening phone calls to our studio. Then one night several months later a group broke into the studio at night and smashed all our displays. We found out that the Dervish group had done it out of revenge for the way they had been treated. On 4 May they broke into our studio again.
After that [deleted] went to [deleted] at the Ettela’at office to inform him of the damage we had suffered again. He had done this previously but [deleted] said that it was not important and to forget about it. This time I do not know what was said or what happened that [deleted] never returned again. He just disappeared.
That night my aunt told me that [deleted] had been arrested by Ettela’at, that everything had been seized from the studio – and they were searching for me as well. They had even asked [deleted]’s wife about me.
I became very afraid because I knew then that [deleted] was using his Ettela’at position to get us out of the way and there would be no doubt he would use trumped-up charges to dispose us. And he now had our whole studio’s equipment and cameras and filmstock. My father agreed and said I had to get out of Iran and quickly. If I was arrested, they would just hold me in detention for a long time then take me before a Revolutionary Court as fighters against the regime and Islam and sentence me a very long term of imprisonment. It would be the end of me.
My father helped by arranging an air ticket to Malaysia. I had a valid passport so I was able to depart on 17 May 2000 before my name was added to the Departures Blacklist. I rang my parents from Malaysia to be told the Ettela’at was still looking for me.
Since my arrival in the detention camp, I have been held in isolation and therefore I have not been able to ring my family to find out what the latest news is.
Q37. What do you fear may happen to you if you go back to that country?
I have been set up for retribution by Ettela’at officials. Therefore I will be arrested and interrogated with torture about the false charges against me. Then only death or a severe sentence from a Revolutionary court awaits me.
Q38. Who do you think may harm/mistreat you if you go back?
The Ettela’at accomplices of [deleted] will be the ones who will inflict cruel and persecutory treatment on me when they interrogate me.
Q39. Why do you think they will harm/mistreat you if you go back?
Because [deleted] wants my colleague [deleted] and me out of the way probably so he can become some sort of an official film-maker for the Ettela’at with our equipment. I do not know why he turned against us so cruelly. He has obviously brought serious but trumped-up charges against me suggesting that I am politically against the regime and the Supreme Leader and against Islam. That means very severe punishment.
Q40. Do you think the authorities of that country can and will protect you if you go back? If no, why not?
The Ettela’at itself and Ettela’at officials are all powerful because the regime relies so much on it to protect the regime leadership and suppress all dissidence. The Ettela’at do not have to tell anybody they have seized me and I cannot arrange for legal representation if I am taken before a Revolutionary court.
There is no one to protect me any more. Despite what the Constitution of Iran says.”
The Tribunal also had the tape recording of the interview with the applicant conducted by the delegate on 4 March 2001. In reasons for decision provided by the delegate it was stated that:
“At interview the applicant made a further claim that he in fact was a Dervish himself and feared persecution for this reason.”
On about 16 May 2001 the Tribunal received a further statement from the applicant which related the following account:
“I am [deleted] an asylum seeker from Iran who left my country due to the problems I encountered with the regime. My application was unfortunately refused by the case officer. The case officer raised some points in his rejection letter. I am very grateful to the respected RRT for this opportunity given to me to clarify those points.
1-When we arrived in Curtin IRPC we were given some forms to fill out and on the heading of these forms there was written: ‘Boat People Migrants’. When we were given these forms the word ‘migrants’ mislead us and made me and my fellow Iranians make a premature misjudgment. But when I was endowed with an adviser and filled Form 866 out, I felt that I submitted my refugee application for the first time. It was then that I made my statement and gave the reasons why I fled my country and sought asylum in Australia.
2-As I said in my Statement [deleted] and [deleted] had not seen each other since 1988 or 1989 and the period between that time and 1996 would be about 7 or 8 years. But the period was mentioned as 12 or 13 years and I think it was a translation mistake that misled the person who made the decision on my file.
3-Ministry of Ettela’at has three branches in Iran: Civil, Leadership (Rahbari) and Sepah. Most of this organisation’s workers were war officers and Security people of the Fronts. Due to their history and more importantly the trust the authorities had in them, they were employed in different branches of Ettela’at. So it was very natural that these workers had close relationship among themselves. [Deleted] and his friends were good example of that kind of relationship.
On the other hand specially in the first two years we dealt with [deleted], the gatherings we filmed were merely dinner parties, prayers meetings, Ashoura ceremonies, Ramadan and those sorts of gatherings. It is clear that those gatherings were not of high security and confidentiality to prevent a cameraman to take shots at them. They were like personal parties but unfortunately that was misinterpreted by the case officer.
4-During the war [deleted] was hit by shrapnel in the left side of his body and because of that he is walking lamely on his left foot and two of his left hand’s fingers are not moving as the pieces of shrapnel are still in his hand. In spite of that he was so afraid of [deleted] that he had to accept filming for him.
On the other hand, as I mentioned the system we used for filming was a simple video system and if the case of officer [sic] had basic knowledge about that kind of camera, it would seem very natural to him that one could work with those cameras with one hand.
5-Aslo [sic], I never claimed that those films were all produced in our workplace. [Deleted] and his friends used to use our systems just when they needed adding a sound track on films. On the other hand if the nature of our relationship with [deleted], his power and influence over our workshop and the intensity of the Iranian fear from such people were clear to the case officer, this would seem very natural to him.
Also, in Ettela’at special jobs are conducted by special people upon special decisions. The ‘Chain Murders’ event was a good example for that. That film also was made by [deleted], [deleted] and some other people through the same way. So those people preferred not to disclose any part of their job to the others.
I agree with the case officer where he mentioned the filming of the interrogations. I never mentioned such a thing in my statement or interview and that could be a mistake done by the translator or the case officer and that led the case officer not to accept my other statements as well.
6-The Islamic regime’s system victimises the people so that it doesn’t give them their rights. In these systems whoever knows more will be liquidated sooner. When [deleted] went to [deleted], [deleted] was trapped in a problem regarding the leaking of some information about the film. On the other hand he felt that we all knew too much and that situation was the best time to victimise us and put all the blame on us. If someone considers the way these organisations act, it would be obvious that it is very easy for them to do such things.
In my interview, I explained the way I left the country and the help I received from my father’s friends in details. In the course of life there are always some times when one faces good luck. When I left the country that good luck looked upon me. But because the case officer looked at my other statements sceptically it was natural that he would not accept that my father was arrested.
7-As the case officer himself declared he did not have enough information about the situation of Dervishes in Iran.
But I suggest the respected RRT imagine a special social group that is under constant pressure from the authorities. Now if that special group becomes suspicious that one of the members is cooperating with the opponents, what would happen to him. It is clear how they are going to treat him.
In Iran Dervishes are different groups and they follow different doctrines. But they share a common belief of following Moula Ali’s way of life. They want a pure, real Islamic government like what Imam Ali established. That was why they did not accept the government. They consider the way the regime treats the people as abusing Islam, and keep critising [sic] it. As the Islamic Republic finds itself unable to confront these people ideologically it tries to blacken their faces through propaganda and finally demolish them as dissenting groups. That film was a good example of this. The film was presented to the Supreme Leader as Valiy-e-Faqih to get a religious order (Hokm) against them and that was very usual in Iran.
8-From what the case officer said about my being a Dervish one could reckon that he meant that during the interview I suddenly said that I was a Dervish, and as previously I never mentioned that, it meant that I wanted to rectify and support my claims. I wish to advise the respected RRT that I had a private adviser for at least 6 months and I never needed that hasty decision.
Here I wish to explain that the word ‘Dervish’ means ‘poor and needy’. We, Dervishes see ourselves poor and in need of Ali’s Presence. It is a rooted belief inside us and we never feel that we need a low position. But during the course of the interview there was a chance for me to say I was a Dervish and I did so.
On the other hand, as I said before in return for the services we gave to [deleted] he used to help us filming some parties that was impossible for the other cameramen to film. Until that time he never paid any attention to the parties with live music or parties where the guests were not dressed properly. So we considered that case like the other cases. In addition, I never said that I was mixing the film in [deleted]’s presence. But I said that one day when I was mixing the footage, [deleted] saw me and that was unexpected.
In conclusion I wish to reconfirm that in case of being returned back to Iran, I will really face huge persecution due to my problems with the regime. I wish to confirm that whatever I said in the second interview was true and right and I wish the respected RRT considers my situation in the entry interview and the factors that unfortunately led me to make that big mistake. I hope that I will not pay for that mistake by my life or by being imprisoned for a very long term.”
The Tribunal also received a short statement from a cousin of the applicant, a citizen of Canada, whom the applicant had nominated to the Tribunal as a person from whom he wanted the Tribunal to take evidence. The cousin’s statement read as follows:
“I testify, my brother [deleted] and my cousin [deleted] during beginning of year 2000 had conflict with officers of Ministry of Intelligent and Security of Iran during which my brother [deleted] was arrested and my cousin [deleted] had to runaway.
This incident has caused great stress and emotional pain upon our family.
I am willing to provide you with further information and also as a witness to assist you. I am sending my personal I.D to identify myself as a witness and if you wish to use me as one I can be reached at indicated date in the court by phone.” [Some spelling corrected.]After the hearing the Tribunal received a letter from the applicant’s adviser, dated 15 June 2001, which set out the following summary of the applicant’s claims:
“The applicant is a 25-year-old Iranian citizen from Tehran. He is single. His problems with the Iranian clerical Islamic regime arose from movie-making involving the Dervish religious sect on behalf of some internal security officers. He is also strongly committed to Sufist thoughts and regards himself as a Dervish.
As the Tribunal will now be aware, [deleted] operated a lawful photography studio business which was closed down by the security authorities as a result of alleged breaches of the infamously restrictive Hijab rules relating to photographing women with no head scarf . He then formed a partnership with one of his cousins, [deleted], and opened a photography business.
The partners were approached by an agent of the Security and Intelligence Ministry, the Ettela’at. This agent, [deleted], commissioned them to film private functions attended by some high-ranking government officials, held on social and religious occasions. [Deleted] undertook to reciprocate those favours by allowing the applicant and his business partner and cousin, [deleted] – who had sustained physical injuries in the Iran-Iraq conflict – to contract for weddings, shooting films, taking photographs, etc without any interference by Sepah Pasdaran and Basiji law enforcement officers.
Our client began to experience further difficulties with the authorities after [deleted] discovered his involvement in processing of some film sequences of ceremonies held by the [deleted] Dervishes. This film was taken by [deleted] against our client’s consent and used for the State anti-Dervishes propaganda.
As a result, [deleted] was perceived by the said Dervishes to have given the film voluntarily to the authorities as a result of which his business was attacked and vandalized on two occasions in March and May 2000. He also received threatening phone calls in that period. [Deleted] was arrested shortly thereafter and our client was informed by his aunt that the authorities have asked [deleted]’s wife about his whereabouts. All of his photographic equipment was confiscated by the Ettela’at.
Fearing the same fate as his business partner, our client decided to flee quickly from Iran with the help and support of his family 13 days after the latest attack on his business. He never saw [deleted] again after that fateful night.
It is our client’s truthful evidence that he does, in fact, belong to the school of Sufism and has been a practicing Dervish, albeit secretly, at the time he faced those difficulties. His post-hearing statement is a reliable testimony to his detailed knowledge of this ancient school of thought. Also in his latest testimony, our client has stated that since his departure from Iran more than 13 months ago, his house has been searched by the security authorities and pictures of his spiritual elders have been found in his possessions.
This information gives rise to the fact that the authorities would now know that of his [sic] a practicing Dervish and, to that end, he is most likely to face grater [sic] persecution. As the Tribunal will doubtless be aware from the Country Information Service, the temples in which the Iranian Devishes practice their rituals, called Khaneghah, have been declared illegal and closed for a number of years. They are regarded by the regime as unorthodox believers who practice and interpret Islam in an unacceptable way.”
Attached to the adviser’s letter was a further statement by the applicant which dealt with the Dervish order, how that order was treated by authorities in Iran, and why the applicant now feared persecution for reason of religion. The applicant stated that authorities in Iran were now aware that he was a Dervish because, as advised by his family, the authorities had raided the applicant’s home and found pictures of Dervish elders amongst his belongings. He said that he felt no need to declare his affiliation to the Dervish order in his application for a visa because, at that stage, he was not aware that the authorities had discovered that he was a Dervish.
On the hearing of the application for review the applicant appeared in person, assisted by an interpreter. Making allowance for the applicant’s lack of knowledge of the relevant law, and having regard to written submissions the applicant provided to the court before the hearing, the essence of the applicant’s application for review appeared to be a submission that the Tribunal did not properly consider his claims by reason of the Tribunal failing to consider relevant matters; having regard to irrelevant matters; or failing to properly interpret the law, or apply it correctly to the facts of his case, thereby providing ground for review under s 476(1)(b), (c) or (e) of the Act. (See: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1.)
The issues raised by the applicant were that the Tribunal erred in stating that he applied to the Australian Embassy in Tehran for a visa to travel to Australia one month before he left Iran and erred in stating that he had given inconsistent or “mutually exclusive” accounts in explaining why he had not put forward at the entry interview claims now relied upon to support the application for a visa.
Shortly after commencement of the hearing, the application for review was adjourned to allow tape recordings of the interview with the delegate, and the Tribunal hearing, to be brought to Court by the Minister. Upon resumption of the hearing the Court received in evidence a transcript of part of the delegate’s interview with the applicant on 4 March 2001 and a transcript of the hearing conducted by the Tribunal on 17 May 2001.
With regard to the first of the claimed errors, the transcript of the delegate’s interview with the applicant shows that the following exchange occurred:
“[DELEGATE:] Yeah, I have your entry interview when you were first interviewed when you first came here you said that you applied at the Australian Embassy in Tehran but got no response.
[INTERPRETER:] I wanted to but I did not. I wanted to but I didn’t do anything.”
The applicant stated that he had told the Tribunal that it could confirm his account by contacting the Australian Embassy in Iran. The Tribunal’s statement recorded that the Tribunal did not contact the Australian Embassy.
As matters stood before the Tribunal there was some material on which the Tribunal could conclude that one month before the applicant left Iran he had applied for a visa to travel to Australia. Of course, if that were a fact, it was a matter to be taken into account, but it did not follow that the applicant’s claim that he had been subjected to persecution immediately before his departure causing him to decide to leave Iran in haste, had to be rejected as a fabrication.
Contrary to the submissions of counsel for the Minister, the Tribunal’s statement left little doubt that in reaching its conclusion that the applicant had fabricated his claims the Tribunal placed considerable weight on the assumption that the applicant had approached the Australian Embassy in Iran and had applied for a visa one month before he left Iran.
The following statements by the Tribunal show how the Tribunal relied upon that assumption in proceeding to form the conclusion that the applicant’s account was not credible and that his claimed fear of persecution was not well-founded.
“Seeming to clash with his evidence regarding his passport and visa application, the Applicant is reported to have said in his entry interview that he began planning to leave Iran three days before he left. The Tribunal takes this to mean that he began planning to leave Iran regardless of the Australian visa matter three days before he actually departed.”
_____________________________________________
“It seemed that a more logical explanation for the Applicant having, as he said, destroyed or thrown the passport away himself was that in doing so he could force the hands of Australian authorities and prevent early removal from Australia; he did not, for example, jettison the document prior to arrival in Malaysia or Indonesia; he was on record as having been intending to make Australia a destination in approaching the Australian embassy for a visa.”
_____________________________________________
“He claimed that as a result, the Dervishes broke into the studio a number of times, vandalising it. He said the last break-in occurred on 4 May. This would have been after the Applicant applied for his Australian visa.”
_____________________________________________
“In his…application and accompanying statement, the Applicant did not refer to the matter of his application to the Australian embassy for a visa. He described his decision to leave Iran as being the result of [deleted]’s disappearance after 4 May 2000.”
_____________________________________________
“The Tribunal concludes on his repeated evidence that the Applicant departed Iran legally by air on a passport he obtained without difficulty and that he prepared to travel long before those days in May 2000 when he claims his life suddenly became endangered.”
Whether the applicant applied for a visa one month before he left Iran, or did no more than entertain the thought, neither circumstance was necessarily inconsistent with a claim that circumstances occurred thereafter which provided cause for the applicant to fear for his safety at the hands of security forces acting against him for reason of perceived political opinion or religion.
Another mind charged with the task of assessing the applicant’s claims may have considered it appropriate to exercise considerable care before reaching conclusions on scant material. However, in the end, it remained the fact that there was some material before the Tribunal, however slight, on which the Tribunal could form the conclusions it did.
With regard to the second error relied on by the applicant, again the material before the Tribunal was equivocal but it provided some basis for the Tribunal to form the conclusions it did.
The Tribunal’s statement explained as follows how it perceived the applicant’s accounts to be “mutually exclusive”:
“In his statement, the Applicant explained the changes in his claims, saying that everything he had previously said in his entry interview was truthful although he had been unwell and tired from his journey when first asked why he did not want to return to Iran, and therefore did not tell the whole story. He then went on to attribute blame for the omission to another source. He said that other detainees who had already been interviewed in Australia warned him that Australia was on good terms with Iran and that they might disclose his information to Iranian security.
At the RRT hearing, however, the Applicant gave an account inconsistent with this explanation, saying that the people who gave him this advice and instilled in him the fear of telling the whole story were his fellow passengers on the boat that brought him here. The Tribunal found it difficult to conceive how a boatload of persons who had all paid large sums of money to come to Australia would try to talk to each other [sic] out of articulating their worst fears in the way he now claimed, let alone be heeded by each other as experts on Australia’s relations with Iran, especially since they were all heading for Australia themselves. Similarly, the Tribunal had great difficulty with the notion of detainees who had progressed along the asylum seeking course, in an environment where applications under the Convention constitute the only possible avenue for gaining residence in Australia, would be telling new arrivals not to say what had really happened to them in Iran. Above all, however, the Tribunal’s greatest problem was with the Applicant giving two quite opposed accounts as to who had influenced his claimed decision to withhold what he later said were his most significant claims, when they did it, and where he was at the time. This seemed to set off alarm bells as to the credibility of those claims, which the Tribunal had already read in its examination of his DIMA file and which it will summarise below.
Whilst the Applicant was saying he had allowed himself to be influenced by people to vary from the truth only prior to the first instance of his fact-providing, the entry interview, it seemed open to the Tribunal to ask itself if he might, rather, have found out after the entry interview that he had not said enough to assist himself in gaining residence in Australia and that he would need to add a whole lot more information at the next available opportunity. The Tribunal considers itself justified at least in asking itself this question due to the fact that the Applicant has, as noted, provided mutually exclusive accounts as to who misled him prior to his entry interview.” [Emphasis in original.]
_____________________________________________
“At the RRT hearing, the Applicant addressed the apparent inconsistency, saying that he originally thought he and his fellow travelers had been warned by persons who had already been interviewed and that this had ultimately been a mistaken impression on his part. He said he later learned that these people had not yet been interviewed. The Tribunal has considered this explanation in the context of the claim about the warning coming from the people with whom he traveled on the boat that brought him here. They would have been handled as a group and held together pending interview. At one point the Applicant had said that these fellow passengers were the ones who had warned him not to say too much to the Australian officials; it seemed inconceivable that he could have even mistakenly regarded his fellow passengers as persons who had already been interviewed. His explanation at the hearing made things even more confused.
It seems open to the Tribunal to consider that the Applicant abandoned his attribution of warnings to already-interviewed detainees because he knew he could not sustain such an argument.”
_____________________________________________
“The manner in which the Applicant disclosed the claim to the effect that he too was a Dervish forms a pattern with his many other revisions and apparent afterthoughts in this matter. It is one of many factors that leads the Tribunal to reject the Applicant’s explanation for omitting what he called ‘every detail’ of his story at the earliest stage of his contact with Australian officials. Another significant reason for rejecting this is that the Applicant gave inconsistent explanations as to who warned him to be circumspect and when. As to the claim about being a Dervish on its own, the Tribunal does not accept it, because the Applicant provided the Tribunal with highly unsatisfactory reasons for failing to disclose the claim until so late in the process.”
Perusal of the transcript of the Tribunal hearing shows that on occasions the questions put by the Tribunal were indirect or were prefaced by statements of some length, presenting difficulties for the interpreter and the applicant. Reading the transcript as a whole and considering the applicant’s answers in the context of the entire transcript, it could be said that the applicant’s account at the Tribunal hearing was not inconsistent with the explanation provided in earlier statements. In that state of equivocation the Tribunal chose to make findings adverse to the applicant and to base its ultimate determination upon those findings. As noted earlier, the findings made may not have appeared as necessary conclusions on the material before the Tribunal but they were open and, therefore, no argument can arise that, by reason of fundamental error, the Tribunal lacked jurisdiction or authority to make the decision it did.
The application for review must be dismissed.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate:
Dated: 7 August 2002
The Applicant appeared in person: Counsel for the Respondent: A A Jenshel Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 13 December 2001; 7 February 2002 Date of Judgment: 7 August 2002
0