Nejad v Minister for Immigration & Multicultural Affairs [2001] FCA 1399 (28 September 2001)

Last Updated: 4 October 2001

FEDERAL COURT OF AUSTRALIA

Nejad v Minister for Immigration & Multicultural Affairs

[2001] FCA 1399

ASHKAN AGDAR NEJAD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

S67 of 2001

FINN J

ADELAIDE

28 SEPTEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S67 OF 2001

BETWEEN:	ASHKAN AGDAR NEJAD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	FINN J
DATE OF ORDER:	28 SEPTEMBER 2001
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. 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
SOUTH AUSTRALIA DISTRICT REGISTRY	S67 OF 2001

BETWEEN:	ASHKAN AGDAR NEJAD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	FINN J
DATE:	28 SEPTEMBER 2001
PLACE:	ADELAIDE

EX TEMPORE REASONS FOR JUDGMENT

1 The applicant, Ashkan Agdar Nejad, is an Iranian national, whose application under the Migration Act 1958 (Cth) ("the Migration Act") for a protection visa was refused by the Refugee Review Tribunal ("the Tribunal"). The claims he put to sustain his application involved a series of unrelated events, resulting in contacts with, and alleged detentions by, the Iranian authorities. These were rejected by the Tribunal as being variously implausible, inconsistent with country information or as being insufficient to give rise to a well-founded fear of persecution. He now applies to this Court for an order of review.

2 While he had legal advice in the preparation of his application to the Tribunal such was not the case with his present application, at which he appeared in person. Mr Nejad has understandably identified no ground of review in his application. He merely asks the Court to examine the decision for any legal errors. I have explained to him both the role of a judge in adjudicating a dispute between parties and the basis upon which this court could interfere with the Tribunal's decision.

3 As to the latter, I explained to Mr Nejad that this Court can only set aside a decision of the Tribunal if a ground set out in section 476(1) of the Migration Act is established. Those grounds do not allow the Court to interfere with the Tribunal's decision simply because the Tribunal has taken a particular view of the facts of his case with which this Court might disagree. As Kenny J commented in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at 257:

"A Tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis or because it adopts unsound or questionable reasoning."

4 Importantly, this Court cannot change a decision of the Tribunal even if it thinks the Tribunal was wrong on the facts: see Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426. The Tribunal does not have to have rebutting evidence available before it can lawfully hold that a particular factual assertion is not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348. Likewise, illogical reasoning will not provide a ground of review: see Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565. Finally, the Tribunal does not in its statement of reasons have to provide a line-by-line response to an applicant's case: see Re Minister Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407.

5 Mr Nejad did address the court today. Apart from referring to two matters, which I will mention at the end of these reasons, what he had to say was, for the most part, related to the raising of new matters not before the Tribunal (for example, he now claims he has converted to Christianity though the documentation in the court book consistently says he is a Shiite Muslim) or what he had to say involved enlarging upon material before the Tribunal (for example in relation to demonstrations in the town of Haftgel).

6 I explained to him again that I could not receive new evidence in support of his claim but was limited to considering the decision of the Tribunal on the material before it. Before turning to a consideration of the Tribunal's decision I think it appropriate to say that that part concerned with "findings and reasons" is structured in a way that is calculated to impede rather than promote understanding. Having said this, the reasons themselves are unassailable, as such, and, as I will indicate, they do not betray an error of a type that would attract a ground of review under section 476(1) of the Migration Act.

The Tribunal's findings

7 The first series of findings relate to events in 1996, when Mr Nejad worked in the security division at a steelworks.

8 Finding 1: the possession of a satellite dish:

"The applicant stated that a satellite dish was discovered at his house. He stated he was accused of using the satellite to send messages to and from the Mujahadeen. However he agreed that he only had a receiver and could not sent messages. ...

The applicant stated that after the dish was found he was handcuffed, blindfolded and taken away. He claimed that he was taken to the remand centre for people trafficking drugs. He did not know where he was for a few days. He stated that he was held for ten days during which he received four electric shocks. He was then released but had to report for thirty five days in the morning and went home in the evenings."

9 The Tribunal rejected the resultant claim of torture and detention. It found that the country information indicated that ordinarily the initial penalty was to recite the Koran and to pay a fine. The Tribunal found that while the applicant may have been punished for possessing a satellite dish his punishment would have been more in line with the country information. Further, even if the applicant had breached the law, the country information indicated that the penalty would not be serious enough to amount to persecution

10 Finding 2: The applicant claimed that he discovered 250 kilograms of opium in a street in the area where he was working as a security guard. It was later reported that only 150 kilograms was found. He reported this discrepancy to a radio station and, as a result, was sacked. There was, I would note in passing, evidence of difficulties experienced by Mr Nejad with a superior officer, which may have had one or a number of causes. For its part the Tribunal found:

"The events at the steel factory happened it seems around 1998, three years ago. Whilst it is possible that the applicant did have problems with the manager as a result of his association with a woman, the applicant obtained further employment and the Tribunal does not accept that this indicates he faces a real chance of persecution should he return now. It is also possible that the applicant discovered opium in the manner claimed and that some irregularities did occur in the recording of the amount."

The Tribunal went on to speculate whether the alleged detention was in fact related to the opium find and gave reasons for rejecting this. It equally rejected that events of this period would have resulted in his being of ongoing interest to the authorities.

11 I should add that one matter raised relating to this period sought to relate both the seizure of the satellite dish and his difficulties arising from the opium discovery to his alleged support of the Mujahadeen. This claim was raised by Mr Nejad's adviser in the submission put to the Tribunal on his behalf. It was that:

"6. The applicant states that he was detained because he owned a satellite dish, but also because he had a clash with Ahstari Malek, a very influential person who is head of the security section of the Steel Industry. After the applicant revealed the amount of opium seized and gave the information to a TV broadcasting station, Malek was hostile towards the applicant and considered him an enemy. The applicant feels that he was looking for an opportunity to take revenge. Because he knew that the applicant had an antenna and satellite dish he reported him to the Ministry of Information and alleged that the applicant was a supporter of the opposition group the Monaseghin Majehidin. The applicant's dish was confiscated and the applicant was placed under house arrest in his own home. The Etelad said the applicant was co-operating with opposition groups and tried to get more information from the applicant. Because they were not able to prove anything the applicant was penalised with a cash fine and 10 days in detention, in addition to being required to report to them for 35 days."

It was rejected:

"In relation to alleged Mujahadeen involvement the Tribunal notes the country information that this group operates principally outside Iran and that its support in the country has wained [sic]. The applicant himself had not claimed at this stage to have had any prior involvement in the Mujahadeen. Further in his initial statement provided by his adviser the applicant made no mention of being accused of Mujahadeen involvement, stating that he was questioned about the names of others with satellite dishes or who were involved in illegal activities in Ahwaz. Had he been questioned at this point about Mujahadeen involvement the Tribunal considers he would have mentioned this in his initial statement. As a result of these matters the Tribunal does not accept that the authorities questioned and tortured him for ten days about Mujahadeen involvement when there was no evidence whatsoever of any involvement other than a report from a more senior work colleague. On the other hand had the applicant really been suspected of Mujahadeen involvement, given the nature of this group, it is not plausible he would have been released after ten days. Finally if it is some other group as set out in his adviser's most recent submission then the same reasoning would follow. The applicant did not mention any such group in his initial statement, does not claim any prior involvement in any such group and the Tribunal can find no evidence that a group called the `Monaseghin Majehidin' is of interest to the authorities. So even if the Tribunal is wrong in its assumption that the applicant's adviser was referring to the Mujahadeen the Tribunal does not accept that the applicant was detained and questioned about some other group."

12 Finding 3: Mr Nejad claimed that, having gone to Haftgel in early 2000 to do an electronics job, he attended demonstrations at which allegedly he was photographed with an organiser. The Tribunal said of this:

"Taking the nature of the applicant's claim into account and the country information above the Tribunal finds that the suggestion that the authorities are interested in the applicant because of his attendance there or his chance meeting with a Mr Rashedi or because of any photograph taken is far fetched and fanciful. The applicant does not claim that anything further happened until October 2000 which is ten months after the demonstrations. In the Tribunal's view it is fanciful that the authorities would be interested in the applicant for being in the vicinity of these demonstrations such a period of time after the event and it is also fanciful after the applicant's departure from Iran his mother would learn that he was photographed with Rashedi who it is claimed was an organiser."

13 Finding 4: this related to Mr Nejad's alleged possession of a radio or walkie-talkie tuned to a Mujahadeen station. It was put in his application in the following way:

"The applicant claimed that in October 2000 someone claiming to be a member of a religious and political group Bonyad Shahid brought him two radios to repair. This person was to return after a week but after six days the Sepah raided his house. He was taken away and accused of repairing radios belonging to the Mujahadeen. He claimed that the Mujahadeen had set a bomb in Ahwaz. The applicant claimed that his wife asked where he was being taken and they told her they were taking him to a party. After two days the applicant's mother who worked with Sepah located him. The applicant claimed that his mother organised his release and then told him he was in danger."

14 The claim was rejected by the Tribunal:

"In the Tribunal's view this claim is also far fetched. The applicant appears at this time to have been working in electronics and has therefore has a ready explanation for having this item. In the Tribunal's view "it is fanciful that the authorities would impute to him a political opinion of support for the Mujahadeen because he was repairing a walkie talkie. ... It is also implausible that the authorities would only discover the walkie talkie was tuned to the Mujahadeen station after his release and departure. Further if the applicant was really suspected of Mujahadeen involvement it is implausible he would have been released after two days on the intervention of his mother and would then be able to sell his belongings and depart the country legally. As a result the Tribunal does not accept that the applicant was detained as claimed or had any problems stemming from a walkie talkie."

15 Finding 5: Mr Nejad claimed that after his departure from Iran his mother was gaoled for three years and four months and was to receive 74 lashes and to pay 2 million rials because she did not produce him to the authorities, as required consequent upon his release from detention. A document of an apparently official character said to have been obtained by his wife was produced to the Tribunal. Having found that Mr Nejad was not detained in relation to the walkie-talkie radio incident, the Tribunal went on:

"It follows from this that the applicant did not flee Iran. This is consistent with the use of his own passport to depart. It also follows from these findings that the applicant's mother cannot be having any problems stemming from having her son released as the Tribunal does not accept that he was in custody. It follows from this that the Tribunal does not accept that the document about the applicant's mother's detention is genuine."

16 Finally, the Tribunal found that Mr Nejad's speedy departure from Iran and his having applied for refugee status would not lead to serious consequences for him were he to return to Iran.

17 Before expressing my views on whether the findings are impeachable under the Migration Act there are two matters to which I must refer. Both were raised by Mr Nejad in his address and both were, as a matter of fairness, commented upon by Ms Maharaj for the assistance of the court.

18 The first relates to a claim he made in his original interview:

"(1) I have problems with my property in Iran. 2 houses were destroyed in Khoramshahr during the Iran/Iraq war 20 years ago and the government has not paid compensation. My other two homes in Ahwaz I gave the title deeds to a Mr Jamshidi Unit 7 Officer in Charge of "Posgag". This was as a guarantee to money borrowed by my friends. The money has now been repaid but he will not return the deeds to my houses. This was about 2 years ago."

19 This matter was not analysed by the Tribunal in its reasons, although it was mentioned in its fact narrative. Mr Nejad now seeks to put it to the fore in his application. What does seem clear is that these property-related complaints were not actively pursued as Convention-related ones. At no point was it suggested, and there is no apparent evidence to the effect, that the actions taken by the persons in question (assuming Mr Jamshidi to be a public official) were taken in any way for a Convention-related reason, and there is nothing to suggest that those actions could ground a well-founded fear of persecution, however unjust they may be to Mr Nejad as an individual.

20 The second matter relates to the documents concerning his mother that the Tribunal did not accept as genuine. Prior to the Tribunal hearing the applicant's adviser foreshadowed that they would be brought to the hearing, although without translations. The adviser asked that an interpreter be present. As emerges from the text of the Tribunal's reasons, the document must have been translated at the hearing and I would infer that to be so. Subsequent to the hearing and after the Tribunal's decision had been given, the adviser provided the Tribunal with translations apparently for the purpose of finalising this matter.

21 Mr Nejad's complaint before me is that the Tribunal's decision was given before he could obtain originals seemingly of other documents from Iran, although he was unable later to get such originals in fact. I have not had access to the Tribunal's transcript to see whether some expectation was created that no decision would be given before this documentation was obtained. What seems clear now, though, is that such documents are not procurable. As to the Tribunal's treatment of the document tendered, the Tribunal gave its reasons for rejecting its authenticity. This may or may not have been mistaken but it does not betray a reviewable error.

22 Turning now to the findings made to which I have referred. None are open to challenge, as I have indicated, on the mere ground that they may have been mistaken findings of fact or because their merits may be contestable; likewise, none are open to challenge on the ground that they make out the ground that there was no evidence to justify the decision. The findings themselves were open to the Tribunal, both in light of the country information and of the view taken of the applicant's credibility. There is no apparent error of law suggested, such as might justify inquiry under section 476(1)(e).

23 I have already referred to the matters relating to confiscation of property and of original documents. They raise no ground of review. Otherwise no relevant material appears to have been ignored; no wrong question appears to have been asked; no irrelevant material appears to have been relied upon: see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1. Accordingly I am unable to say that the decision was not authorised by the Migration Act: see section 476(1)(c). I am unable to discern furthermore that any other of the grounds in section 476(1) could reasonably be invoked by Mr Nejad.

24 It was up to the Tribunal to assess the credibility of the assertions made by the applicant and to determine the merits of the application. In both matters it found adversely to Mr Nejad. This court simply does not have the jurisdiction to reconsider either of those matters, whether or not it agrees with the Tribunal's decision. Accordingly, as no section 476(1) ground can be or has been made out, the application itself must be dismissed.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated: 4 October 2001

The Applicant appeared in person
Counsel for the Respondent:	Ms S Maharaj with Ms K Southcott
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	28 September 2001
Date of Judgment:	28 September 2001