Applicant NAAW v Minister for Immigration & Multicultural Affairs [2001] FCA 1919 (10 December 2001)

Last Updated: 28 May 2002

FEDERAL COURT OF AUSTRALIA

Applicant NAAW v Minister for Immigration & Multicultural Affairs

[2001] FCA 1919

APPLICANT NAAW v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1463 OF 2001

EMMETT J

10 DECEMBER 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1463 OF 2001

BETWEEN:	APPLICANT NAAW APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	10 DECEMBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondents 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
NEW SOUTH WALES DISTRICT REGISTRY	N 1463 OF 2001

BETWEEN:	APPLICANT NAAW APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	10 DECEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant is a citizen of Iran. He and his wife arrived in Australia on 28 March 2001. On 1 May 2001 a child was born to the applicant's wife. On 11 May 2001 the applicant lodged an application for a protection (class XA) visa with Department of Immigration and Multicultural Affairs. On 27 July 2001 a delegate of the Minister for Immigration & Multicultural Affairs ("the Minister") refused to grant a protection visa. On 1 August 2001 the applicant applied to the Refugee Review Tribunal ("the Tribunal") for a review of that decision. On 10 October 2001 the Tribunal affirmed the delegate's decision. On 29 October 2001 the applicant lodged an application for an order of review by this Court.

2 When the matter was called on for hearing today, the applicant appeared in person. He said that he had understood that Mr David Godwin of counsel, who had been giving assistance in connection with the Minister's pro bono scheme, would be appearing for him. However my associate confirmed by telephone that Mr Godwin, in accordance with the terms of the scheme, undertook to give no more than advice. The applicant has been assisted today by a Farsi interpreter. He did not make any submissions in support of his application. When asked if there was anything he wished to say, he invited me to decide the matter.

3 The application to the Court specifies three grounds as follows:

1. Procedures that were required by the Migration Act 1958 ("the Act") to be observed in connection with the making of a decision were not observed.

2. The decision involved an error of law being an error of law involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision.

3. There was no evidence or other material to justify the making of the decision.

The grounds may have been available under s 476(1) of the Act prior to the amendments that came into force on 1 October 2001.

4 I have considered the reasons of the Tribunal. I will summarise briefly its findings and conclusions. The applicant claims that if he returns to Iran he will be persecuted because of his political activities. However, the Tribunal considered that his evidence concerning his alleged political activities was "vague, implausible and internally inconsistent". The Tribunal considered that he was not a convincing witness. The Tribunal considered that his evidence concerning various matters shifted not only during the original determination process but also during the hearing before the Tribunal. The Tribunal did not find the applicant's evidence to be credible or reliable.

5 The applicant claimed that he was involved in a political group when he was at university in 1993. The Tribunal, for reasons that it gave, did not accept that claim. The applicant claimed that he was arrested and detained after he picked up injured demonstrators participating in student demonstrations in Tehran in July 1999. The Tribunal did not accept the applicant's claims in that regard. However, the Tribunal observed that, even if the applicant was arrested and detained as he claimed, on his own evidence he was released after ten days. The applicant did not claim to have been charged with any offence. The Tribunal considered that that strongly suggested that the Iranian authorities did not maintain any serious suspicion that the applicant was personally involved in the student unrest.

6 Given that the applicant was released without charge, the Tribunal considered that he was of no further interest to the Iranian authorities once he was released from custody. Accordingly, even if, contrary to the finding that the Tribunal had made, the applicant was arrested and detained following the student demonstrations in July 1999, the Tribunal was not satisfied that he currently has a well founded fear of persecution for that reason.

7 The applicant also claimed that after the student demonstrations in July 1999 he became involved with a political group led by a student called Mehdi. The applicant claimed that Mehdi was one of the injured demonstrators whom he assisted on the day of the demonstration. The Tribunal did not accept that the applicant became involved in a political group led by Mehdi.

8 The Tribunal considered that there were other problems with the applicant's evidence concerning that issue. The Tribunal considered that the applicant's evidence concerning his involvement and activities with a particular group was "vague and unconvincing". The applicant was unable to name the most important student political group in Iran, namely the Office to Foster Islamic Unity. The Tribunal considered that it was "implausible" that a person connected to a student political group in Iran should be unaware of that organisation given its size and prominence. The Tribunal also considered that the applicant's evidence concerning plans for the distribution of pamphlets was "confused and lacked credibility". Overall the Tribunal found that the applicant's evidence concerning his involvement with a student political group to be "totally unpersuasive". The Tribunal did not accept that he was involved with any such group and did not accept that he was involved in the production of a pamphlet for distribution.

9 The Tribunal formed the view that the applicant had fabricated his claims in relation to involvement in a political group in an attempt to create for himself the profile of a refugee. Since the Tribunal did not accept that the applicant was involved in a political group as he had claimed it followed that the Tribunal did not accept that the Iranian authorities had any interest in him for that reason at the time of his departure from Iran or that they currently have any interest in him for that reason. The Tribunal was not satisfied that the applicant has a well-founded fear of persecution for reasons of his political activities or his political opinion.

10 Finally, the applicant and his wife claimed that they had left Iran illegally. The Tribunal was not satisfied that the applicant was of any adverse interest to the Iranian authorities at the time that he left Iran and, accordingly, there was no reason for the applicant to have left Iran illegally. The Tribunal was of the view that the applicant and his wife had in fact left Iran legally using passports in their own name. However, even if the applicant did leave Iran illegally, the independent advice before the Tribunal did not suggest to the Tribunal that that would give rise to a well founded fear of persecution for a convention reason. Having considered the evidence as a whole the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligation under the Refugees Convention.

11 Those findings and the reasons for them indicate to me that the Tribunal has made a decision based on assessment of the credibility of the applicant. There is nothing in the reasons which suggests any reviewable error. I am not persuaded that any ground of review exists in the present case. Accordingly the application should be dismissed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 29 January 2001

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr J Basten QC with Mr S Lloyd
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	10 December 2001
Date of Judgment:	10 December 2001