W444 v Minister for Immigration and Multicultural Affairs
[2002] FCA 605
•10 MAY 2002
FEDERAL COURT OF AUSTRALIA
W444 v Minister for Immigration & Multicultural Affairs [2002] FCA 605
MIGRATION - judicial review - refugee - Refugee Review Tribunal - alleged jurisdictional error - alleged error of law - Iranian National - Kung Fu Instructor - whether Tribunal misconstrued applicant’s claims as to illegality of Kung Fu - whether Tribunal entered upon real chance analysis of incident as ground of well-founded fear - whether Tribunal failed to consider ethnicity as a contributory cause as distinct from a sole cause of persecution
W444 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W444 OF 2001FRENCH J
10 MAY 2002
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W444 OF 2001
BETWEEN:
W444
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
FRENCH J
DATE OF ORDER:
10 MAY 2002
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1. The application is dismissed.
2. The applicant is to 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
W444 OF 2001
BETWEEN:
W444
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
FRENCH J
DATE:
PLACE:
PERTH
REASONS FOR JUDGMENT
Introduction
The applicant arrived in Australia from Iran, without any lawful authority, on 4 November 2000. He lodged an application for a protection visa on 12 February 2001 which application was refused on 26 March 2001. He then lodged an application for review of that decision with the Refugee Review Tribunal on 29 March 2001. On 24 August 2001 the Refugee Review Tribunal affirmed the decision not to grant him a protection visa. He seeks review of that decision before this Court pursuant to an application filed on 18 September 2001. That application is brought under Part 8 of the Migration Act 1958 (Cth) as it stood prior to the extensive amendments which came into force on 2 October 2001.
The Applicant’s Claims and Evidence
The applicant was interviewed by an officer of the Department of Immigration and Multicultural Affairs at the Curtin Detention Centre on 14 November 2000. The record of that interview disclosed that his father still lives in Iran. His mother died when he was a baby. He has four brothers and two sisters all of whom still live in Iran. In the course of the interview the applicant was asked why he had left Iran. His answer, as provided through an interpreter, and recorded by the interviewing officer was:
“I liked to come to this country. In reality, I was feeling very alone in Iran. When I was very young my mother died and my father re-married. There was always problems in our house, my sister Malik brought me up. She is the only one I like. When I was in Iran I didn’t have any respect as a coach or a sportsman. I had my own class in Iran, a training class for 6-7 months. They were always causing problems for me - the government, the authorities. They always were making excuses for harassing me. They would say I need to have a licence to train, when I get a licence they say I had to be in Martyrs family. We should elect coaches, we should have certain conditions for coaches. When they closed down my class they said to be a coach you must have certain conditions to be a coach, you don’t have. I said what don’t I have, they said you must have beard and moustache and button shirt up, you must be part of the Basiji (religious police). My behaviour was questionable. These are the rules of this country.”
Asked his reasons for not wishing to return to Iran the applicant’s reported answer was:
“They will create problems for me very easily. They will accuse me of being anti-revolutionary. The authorities.”
In support of his application for a protection visa the applicant gave a significantly different and more detailed account of his reasons for leaving Iran. It may be interpolated here that it is ordinarily to be expected that the answers given at the initial interview will be brief. They are recorded in the handwriting of the interviewing officer and in note form. The circumstances of the initial interview do not appear to provide for more than a sketchy outline or indication of the principal reasons for departure from the country of origin or nationality.
In support of his protection visa application the applicant said that he is a member of the Bakhtiari tribe. His grandfather was a “big Khan” in the tribe and because of his power the applicant’s family was harassed and persecuted by the Islamic Régime after the Revolution. His grandfather was killed by mullahs and his father imprisoned for five years. The family’s properties and orchards were confiscated by the régime. The grandfather and all Bakhtiaris were the subject of attack as traitors in propaganda spread by the régime.
In 1991, according to the applicant, he began studying the martial art of Kung Fu. The practice of Kung Fu, he said, was illegal in Iran. A leading practitioner and instructor called Mizayi had instructed the former Shanshahi Guards prior to the Islamic Revolution. He had founded TOA Kung Fu in Iran which had three branches or kinds of practice. (The term TOA appears to have been rendered Tu Wa in other materials before the Court in this case). The applicant’s brother had been a student of Mizayi. He practised Kung Fu and was arrested and killed in 1989. This was not because of his martial arts activities but rather because he was secretly an anti-régime activist who was instructing members of a political group in the martial arts. The applicant was instructed in the martial arts by a Mr Moghadam who was a well known instructor. The applicant became interested in Mr Moghadam’s opinions and, he said, began his own activities against the régime. He believed that the régime deprived people of their freedom. With a friend called Mohammad the applicant established Kung Fu classes for young people. Venues had to be changed from time to time to avoid detection by the Law Enforcement Forces or the Ettela’at.
The applicant told of a cousin who was among the youths he taught. His cousin wrote anti-régime poetry. A booklet of his poems was found by a Basiji unit. Ettela’at tried to arrest the cousin who was shot by one of their guards while trying to escape. The cousin’s family was ordered by Ettela’at to hold a private funeral at which only direct family could attend. However, according to the applicant, the family would not be prevented from having a public funeral. At the funeral mourners were attacked by the Law Enforcement Forces at the gravesite. The mourners confronted their attackers and some of the attackers were injured. These events were filmed. Although it was not said specifically who filmed the events, the clear implication is that they were filmed by security or intelligence forces of some kind.
According to the applicant he and some other young relatives and friends who had confronted the Law Enforcement Forces at the funeral escaped in the crowd. The applicant said he then decided to flee the country. He was sure that the Law Enforcement Forces would look for him. He was also sure that they had noticed, during the conflict, that he was a Kung Fu specialist. The applicant claimed that if he is sent back to Iran he will be arrested, interrogated, tortured and killed.
In a supplementary statement prepared for the Tribunal on or about 23 May 2001 the applicant said, inter alia, that, at the time of the disturbances at his cousin’s funeral he abused the Islamic Régime and its Supreme Leader and that he was filmed doing so. He said he was filled with hatred and frustration. He swore at the Supreme Leader Khameini and his predecessor Khomeini. The applicant said he left Iran three days after his cousin’s funeral. He used his own passport but a smuggler arranged for his departure.
The Tribunal conducted an oral hearing on 24 May 2001. A post-hearing submission was sent to the Tribunal on 13 June 2001. This was by way of response to a letter from the Tribunal on 28 May in which it drew attention to country information, a U.K. Home Office Report said to indicate that information provided to the Tribunal by the applicant was not correct. The letter required a response by 4 June. On 7 June the applicant’s advisers sought an extension in this and three other cases for lodgment of responses until 22 June. The Tribunal responded saying it did not agree to that request but advised it proposed to make a decision after 5.00 pm on Thursday 14 June 2001. A response was sent on 13 June and in the event no decision made until 24 August.
In the post-hearing submission it was said that the applicant’s departure from Iran was made possible by payment of bribes to airport officials. He was said to have acted on a strong suspicion or an intuition supported by his sister and brother-in-law that he should leave Iran. His involvement in the recent confrontation at the funeral coupled with his family history of opposition to the régime would render him a wanted political offender. A further complicating factor for him was said to be that the Islamic Régime in Iran permits martial arts training to proceed only to a certain level of expertise. The applicant has been trained to a higher level and has trained others. This could be used by disciplinary forces as another pretext on which he could be persecuted. Broadly speaking the post-hearing submission was a revisiting, albeit in a more elaborate form, of the claims made in support of the original application for a protection visa.
The Tribunal’s Reasons
After reviewing the applicant’s evidence the Tribunal characterised unspecified aspects of it as “…internally inconsistent, unable to be supported by independent evidence and implausible”. The Tribunal accepted that the applicant is an Iranian national and a Kung Fu teacher. It was of the view however that he fabricated some aspects of his claims in an attempt to create for himself a profile of a refugee. The Tribunal referred to general country information about Iran and an overview of its political history since the overthrow of the Shah in 1979. It referred to the election of the current President Khatemi as the most moderate of four candidates approved by the Council of country guardians and who was said to be “aiming for freedom within the framework of the constitution and the Islamic Régime”.
The applicant’s claims were said not to be corroborated by documentary evidence nor by any other witnesses. The Tribunal accepted that it should be cautious in placing too much significance on the original interview of an asylum seeker. This was said to be important in the present matter as there were major differences between the claims made in the first interview and those made in later submissions.
The Tribunal’s treatment of the interview involved some repetition in its reasoning. So in the first complete paragraph on page 13 of the Tribunal’s reasons it said:
“I accept that this interview was not conducted in the most advantageous conditions for a person who had arrived by boat and after a difficult sea voyage. However, it can also be said that the applicant had some days and weeks in which to think about why he was undertaking such a journey and so it is surprising that he did not at least make his political claim at that time. I have not dismissed his political claim on this basis alone.”
The following paragraph then said:
“I accept that the 1st interview was not conducted in the most advantageous conditions for a person who had arrived by boat. But I do not accept that the applicant had an expectation there would be other interviews or that there were rumours or that the Australian officers looked like Basiji or that he was not sure his answers would remain confidential. Nor do I accept that he was not sure whether any information he provided would be kept confidential or that he would be able to make further claims at a later stage. The applicant had some days and weeks, from when he left Iran until arrival in Australia, in which to think about why he was undertaking such a journey. It is surprising that he did not at least make some reference in his claim about some of the later claims. I accept that there can be a variety of reasons but the failure to mention a distinct political involvement, which forms the basis of his claims at the time when he first arrived in Australia is a factor going to credibility.”
The Tribunal went on to say that the evidence did not suggest any interpreting difficulties existed or that the applicant was not made aware of the preamble to his interview which pointed out that the interview was his opportunity to provide any reasons why he should not be removed from Australia, that he was expected to give true and correct answers to the questions asked and that he should understand that if the information given at a future interview were different from what was said at the initial interview that could raise doubts about the reliability of what he had said. The Tribunal then said that if, as claimed by the applicant, he was fearful of possible consequences by the authorities for his actions at his cousin’s funeral it did not accept he would not have made these claims at the initial interview. The Tribunal went on:
“Having listened to the tape recording of this interview I am satisfied the written report reflects the applicants claims. The applicant has not resiled from this report of the interview but rather has sought to explain reasons for his omission. I place weight on this omission.”
The Tribunal then turned to consider the claims made subsequently by the applicant. It rejected his claim that his family was not allowed to have any governmental jobs and were under constant surveillance by reason of being Bakhtiari. It observed that no evidence had been located to support that claim and concluded that the Iranian Government does not discriminate according to race. In relation to the claim that Kung Fu became illegal after the Islamic Revolution and that the applicant was teaching it illegally the Tribunal said:
“I have not found any evidence that Kung Fu was banned in Iran or that teachers or practitioners of the martial arts have been persecuted or harassed for their sport. The only evidence I have located is that Kung Fu movies are banned in Iran. If there were any such ban, I am of the view that it would be known to sources used by agencies such as the US State Department, the Australian Department of Foreign Affairs and Trade, the United Kingdom Home Office and UNHCR. The applicant resiled from this claim and stated that this sport was banned in Iran but in the past 2 or 3 years has it been allowed. The applicant stated that his branch of Kung Fu is banned. I accept the applicant is a teacher and practitioner of Kung Fu but I am not satisfied that his branch of Kung Fu is banned in Iran.”
Concerning the killing of his cousin and the confrontation at the funeral the Tribunal said:
“I do not accept this incident occurred. The applicant made no reference to it in his initial interview.”
The Tribunal preferred the explanation, given at the time of his arrival, that the applicant had not been given any respect as a coach or sportsman in his country and had experienced difficulties and harassment with the Iranian authorities over his training class. He had been angry at their interference in his professional life and had verbally abused authorities who told him he had overstepped his rights and that they would make his life difficult and not worth living. It accepted that at his sister’s suggestion and with her financial assistance he left Iran. The treatment he received did not amount to persecution. He was verbally abused but nothing else happened to him. Moreover he left Iran using his own passport.
Even if the claimed incident at the cousin’s funeral did occur the Tribunal noted the applicant was not charged with any offence although he claimed that three of his friends had vanished. He was not arrested. The Tribunal did not accept that he paid a bribe to exit the country and said that the absence of any arrest of those involved in the alleged funeral demonstration indicated a somewhat lenient approach by authorities to his activities. This did not suggest that he was considered to be any particular threat to the régime or that his activities were thought to be very serious. The Tribunal said:
“I cannot accept that the Iranian authorities considered him to be any threat in relation to this demonstration even if identified. I am satisfied that his treatment does not amount to persecution for a Convention reason.”
The Tribunal did not accept the applicant’s claim that he would be subject to persecutory torture upon his return. His explanation that he came from a family spurned by the Islamic Régime and that he was known to be a dangerous dissident because he was a Kung Fu practitioner was rejected by the Tribunal as illogical and unconvincing. This was on the basis that Kung Fu is not banned and that Bakhtiaris do not suffer discrimination. Generally it was of the view that he fabricated his claims. It was not satisfied that his father was arrested or that his brother was murdered. Nor was there any independent information to indicate that the applicant would suffer any adverse treatment for making an asylum claim in Australia.
The Grounds of Review
The grounds of the application for review were said to be that the Tribunal:
(i) did not have jurisdiction to make the decision it did;
(ii) made the decision that involved a relevant error of law.
The grounds were particularised into three broad areas of asserted error:-
1.The Tribunal failed to understand the applicant’s case in relation to the legality of Kung Fu in Iran and thereby found an inconsistency which did not exist.
2.The Tribunal failed properly to consider the possibility that the claimed incidents at the funeral had occurred.
3.The Tribunal failed properly to consider the applicant’s racial or ethnic origin was a contributory ground to his claimed fear of persecution.
The first claimed error - failure to appreciate the applicant’s case on the banning of Kung Fu
The Tribunal was said to have misunderstood the applicant’s case in relation to the banning of Kung Fu in Iran. Counsel submitted that the applicant’s claim was that his ability to perform Kung Fu at a standard above what was called “the seventh line” would be of concern to the Iranian authorities. There was therefore no “inconsistency”, as found by the Tribunal, about whether a person in his position with a special prowess in weapons would be allowed to practice and teach at that level. There being no such inconsistency, the Tribunal failed to make a relevant and material finding crucial to the train of matters on which the applicant relied.
The applicant’s claims in this respect varied somewhat. There was no reference to the banning of Kung Fu in his initial interview. In his application for a protection visa, in the course of an extended answer to Question 36, “Why did you leave that country? (Iran)” he said that Kung Fu was banned in Iran after the Revolution. That statement was initially made without qualification. However at the end of the same answer he said:-
“It is worth mentioning that only 7 Lines of Kung Fu are now permitted in Iran, and I am teaching beyond the 7th line.”
If there were any “resiling”, by the applicant, in respect of his claim that Kung Fu in Iran was banned, it was in this substantial qualification contained in the original application for a protection visa. The delegate, in his record of decision, which was before the Tribunal, indicated that the applicant had said that the teaching of Kung Fu in Iran had been permitted for the past two or three years but that it could not be taught above the seventh line. He was teaching the sport above the banned level. The reason it was banned above the seventh line was because that level involved the use of weapons such as swords, nanchuckas and sticks. The applicant told the delegate that for him this restriction robbed the sport of its purity and its essence. He had worked very hard to get his black belt and felt the restrictions made his achievement meaningless.
At the Tribunal hearing, as indicated by a transcript exhibited to an affidavit read in this Court, the applicant volunteered to address the Tribunal in relation to what was described as his “sport’s problem”. He said his sport was banned in Iran and it was only in the past two or three years that it had been allowed but only one division was allowed the other two were still banned. The Tribunal put to him that it had not found any information that Kung Fu was banned in Iran. While Kung Fu movies were banned the actual martial art was not. The applicant replied that the founder of the sport was a person who had fled the country. The sport was banned and in past years if someone were known to practice the sport “his skin would have been peeled off” - this was evidently a figure of speech for getting into trouble or being punished. The Tribunal member said that she had searched the Internet and found a couple of articles about Kung Fu in Iran but nowhere had she found anything about the sport being banned. She referred to an instructor called Vassei who began Kung Fu training in 1974 in Tehran. The applicant said he had never heard the man’s name. He then repeated what he had originally said in his application about the founder of the sport being an instructor of the Imperial Guards in Iran at the time of the Shah and who was indicted after the Revolution. He had never heard of the name mentioned by the Tribunal member. He said his specialty is Tu Wa (this term which appears in the transcript would seem to be the same as the term TOA which appears in the protection visa application form). He said he did not know in respect of which branch of Kung Fu the Tribunal member had based her information. She said to the applicant that she had had her researchers check the research information that was available to her and had found nothing on Iran that said that Kung Fu was banned or that Tu Wa Kung Fu was banned. The applicant then said that he could not see the relevance of the matter being pursued. He wanted to mention that the founder of the sport was Professor Mizayi and if inquiries were made through the Australian Embassy in Iran it would be found that what he said was true.
The Tribunal did not in precise terms deal with the applicant’s claim that what was now banned in Iran was the practice of Kung Fu above the seventh level. It characterised his claim as a claim that “his branch of Kung Fu is banned”. It was not satisfied that his branch was banned. In my opinion the failure of the Tribunal to refer expressly to the seventh level is not of itself fatal to its reasoning and does not indicate jurisdictional error. This aspect of the applicant’s evidence was sufficiently dealt with by the finding that the Tribunal was not satisfied that the branch of Kung Fu in which he practised was banned. Indeed the applicant himself referred to one division being allowed and the other two banned. It may of course have been the case that the use of the terms division, branch and level was to some extent an artefact of the translations which treated them as congruent or overlapping concepts.
The Tribunal did seem to have been of the view that initially the applicant had claimed that Kung Fu was banned in Iran generally and that he had narrowed that to a claim that his branch of Kung Fu was banned, the sport otherwise having been permitted over the past two or three years. In fact however the applicant was, from the time of his protection visa application, putting a narrower position. In this sense the position he adopted before the Tribunal did not reflect a resiling from the position he took initially albeit the qualification he made to his claim in the protection visa application was at odds with the breadth of that claim in the first part of his answer to Question 36. In my opinion however, reading the Tribunal reasons fairly and as a whole, it was at best an error in reasoning which did not disclose an error of law and in fact does not appear to have impinged upon the Tribunal’s other findings adverse to the applicant.
The second claimed error - failure properly to consider the claims concerning the funeral incident.
It was submitted that the Tribunal gave no detailed consideration to the applicant’s claims about the funeral incident and rejected the possibility of its occurrence on credibility grounds. The approach of the Tribunal in basing its rejection on credibility grounds in the way it did was said effectively to have foreclosed it from entering into an examination of this most important aspect of the applicant’s case. By its inadequate consideration of this central element of the applicant’s case the Tribunal was said to have failed to address the issue whether he was liable to persecution on political grounds under Article 1A(2) of the Refugees Convention and so to have failed to exercise its jurisdiction properly. Moreover having omitted to address the degree of probability that the funeral incident had occurred the Tribunal did not properly consider whether there was a well-founded fear of persecution.
The Tribunal dealt with the claims relating to the funeral incident first by referring to the applicant’s failure to mention them in his initial interview. It said:
“If, as he claimed, he was fearful of possible consequences by the authorities for his actions at a funeral, I do not accept that he would not have made these claims at that interview.”
He had not resiled from the report of the interview but rather sought to explain reasons for his omission. The Tribunal indicated that it placed weight on that omission. And later in its reasons after setting out the applicant’s account of the events surrounding the funeral incident the Tribunal said:
“I do not accept this incident occurred. The applicant made no reference to it in his initial interview.”
The Tribunal’s failure to accept that the incident occurred is in my opinion in substance a finding that it did not occur. This is apparent from the context for the Tribunal proceeded to consider the case on the assumption that it did occur. It had regard to various factors namely the absence of evidence that the appellant was identified by the Iranian authorities, the fact that he was not arrested, that he was not charged with any offence, and that he later departed Iran legally with his own passport and an exit stamp. These did not suggest that the Iranian authorities considered him to be any particular threat to the Régime or that his activities were very serious. The Tribunal also had regard to the number of other people involved in the funeral demonstration and the fact that none were arrested. It concluded on this point:
“I cannot accept that the Iranian authorities considered him to be any threat in relation to this demonstration even if identified.”
The Tribunal therefore made a finding negativing any objective basis for a fear of persecution on a Convention ground arising out of the funeral demonstration, on the assumption, contrary to its own view, that the funeral demonstration had occurred. In my view its approach here does not indicate any error.
The third claimed error - failure properly to consider whether the applicant was liable to persecution on account of his ethnic background
The third claimed area of error related to the Tribunal’s approach to the applicant’s claim that he was liable to be punished on his return to Iran by reason of his status as a member of the Bakhtiari community and his Bakhtiari family background. Here it is said the Tribunal failed to take into account the way the issue was being posed. The applicant was not submitting that he was likely to be treated unfavourably merely because he was Bakhtiari. Rather it was his case that he would be so treated because:
(a) He was a member of a politically suspect ethnic and social minority.
(b) His grandfather and other family members were also Bakhtiaris.
(c)They had been involved in anti-régime activities severe enough to attract persecution.
The Tribunal accepted evidence that generally the Iranian Government did not discriminate on the basis of race but, it was submitted, failed to take into account evidence that the Bakhtiari were in effect an ethnic minority. What the applicant was putting forward was that his ethnic and social background was a contributory factor in his well-founded fear of persecution for one or the other Convention reasons. The Tribunal was said to have erred in law in failing to appreciate how he was framing this aspect of his case.
In its Reasons for Decision the Tribunal referred to the applicant’s submission which accompanied his protection visa application in which he stated he was a Bakhtiari, that his grandfather was a “big Khan” in the tribe and that his family was harassed and persecuted by the Islamic Régime after the Revolution. It referred also to his claim that his father was imprisoned for five years for no good reason and that all the family’s properties and orchards were confiscated by the régime and that many of the members of the family had to flee and seek asylum in other countries. Reference was also made to the fact that the deposed Shah was a Bakhtiari. The Tribunal then referred to country information and found that the Iranian Government does not discriminate according to race. Although it accepted that the Shah had been pursued by the Iranian Régime it did not accept that was in relation to his ethnicity. Bakhtiaris were not persecuted or harassed merely because they were Bakhtiaris. If there were any such harassment or persecution the Tribunal was of the view that it would have been known to sources used by agencies such as the US State Department, the Australian Department of Foreign Affairs and Trade, the United Kingdom Home Office and the UNHCR. The Tribunal was not satisfied that the applicant or his family were not allowed to have any Governmental jobs or were under constant surveillance due to their Bakhtiari ethnicity. In my opinion there has been no error of law in this approach. The Tribunal has in effect discounted the Bakhtiari background as a basis for any persecution. That having been done it was not obliged to revive this ground and consider it in conjunction with other matters. It did of course have regard to the applicant’s claims which sought to link his Bakhtiari background and his particular family history. In my opinion this ground invites the revisiting of the Tribunal’s assessment of the evidence in a way that trespasses into the area of merit review.
Conclusion
No error having been demonstrated in his case the application will be dismissed with costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate:
Dated: 10 May 2002
Counsel for the Applicant: Mr PW Johnston (pro bono) Counsel for the Respondent: Mr RL Hooker Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 12 April 2002 Date of Judgment: 10 May 2002
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