Fard v Minister for Immigration and Multicultural Affairs [2001] FCA 1909 (5 July 2001)

Last Updated: 15 February 2002

FEDERAL COURT OF AUSTRALIA

Fard v Minister for Immigration and Multicultural Affairs

AFSHIN JALALI FARD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 55 of 2001

WILCOX J

5 JULY 2001

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 55 of 2001

BETWEEN:	AFSHIN JALALI FARD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	5 JULY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for review be dismissed.

2. The applicant pay the respondent's costs of the proceeding.

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	W 55 of 2001

BETWEEN:	AFSHIN JALALI FARD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	5 JULY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1 This is an application by Afshin Jalali Fard for review of a decision of the Refugee Review Tribunal. The Tribunal affirmed a decision by a delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa to Mr Fard. The case put by Mr Fard to the Tribunal is that he suffers a reasonable fear of persecution on the ground of political opinion if he is returned to his country of nationality, Iran.

2 Mr Fard was born in 1970, and was therefore aged 30 years at the time of the Tribunal hearing. He gave evidence that, in about 1984 or 1985, a cousin, who was apparently about six years older than Mr Fard, was executed by the regime because of his involvement in the Mujaheddin-e Khalq.

3 The Tribunal accepted this evidence. The Tribunal also accepted that, following the arrest of the cousin, the applicant's home was searched and both the applicant and his father were arrested. The Tribunal accepted that the applicant was detained overnight, and was subsequently detained on two occasions and questioned for two to three hours. The Tribunal did not accept claims made by the applicant of later continuing surveillance of his family.

4 The applicant gave evidence that he participated in demonstrations that occurred in Teheran in July 1999. He was injured when fighting broke out. The applicant did not claim to have been a leader in the demonstrations; however, but that he was involved. The Tribunal accepted this claim.

5 The applicant claimed that, sometime after the demonstration, he was warned by friends who had contact with the secret police that the secret police were seeking him so he left Iran. He said he left using a passport in his own name and departed from Teheran airport.

6 The Tribunal was not satisfied that the applicant faced a significant danger of persecution if returned to Iran. During the course of his reasons for decision the Tribunal member said this:

"Since for reasons given above I do not accept that either the applicant or the applicant's family are perceived by the Iranian authorities as being involved in the Mujaheddin-e Khalq or as being supporters or sympathisers with the Mujaheddin-e Khalq, it follows that I do not accept that his involvement in the student demonstrations will be viewed differently from that of anyone else by reason of his actual or imputed political opinion. I do not accept that there was a real chance that the applicant will be singled out for arrest and prosecution for his involvement in the demonstrations by reason of any religious or any political opinion imputed to him on the basis of his cousin's involvement in the Mujaheddin-e Khalq 17 years ago when the applicant was aged only 14 years. Nor do I accept that there is a real chance that the applicant will face greater punishment for that reason than any other person who may have had a similar involvement in the student demonstration."

7 The Tribunal member dealt with the situation of people who participated in the July 1999 demonstrations, basing himself primarily on country information which was set out in the reasons for decision. The Tribunal member found that people who took only a minor part in the demonstration were not persecuted or in danger of future persecution.

8 A submission was put to the Court, by Mr Christie of counsel on behalf of the applicant, that the Tribunal erred in failing to consider the likely fate of this particular applicant if he was returned to Iran from Australia. Mr Christie concedes the Tribunal looked at the situation of returning Iranians generally; but he says that there was a need here for consideration of the cumulative facts that Mr Fard would be not only a returning Iranian, but an Iranian who had a history of association with the Mujaheddin-e Khalq.

9 It seems to me the difficulty about the argument is that the Tribunal specifically held that the applicant would not be dealt with differently from other people who were involved in the demonstration in July 1999. The correctness of that finding might be open to debate, but it was a finding of fact.

10 Once a conclusion is reached that there was nothing special about the position of this applicant, because of his cousin's execution some 17 years ago and the then interest in the family, it seems logical to treat this applicant like any other participant in the July 1999 demonstrations who is returned to Iran. There may be scope for debate about aspects of the factual findings in this case; but they are factual findings and so not within the purview of the Court. The application for review must fail. The appropriate order is that the application be dismissed with costs. I so order.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated: 6 July 2001

Counsel for the Applicant:	H N H Christie
Solicitor for the Applicant:	Legal Aid of Western Australia
Counsel for the Respondent:	L B Price
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 July 2001