Naderi v Minister for Immigration & Multicultural Affairs (includes corrigendum dated 15 Janua [2002] FCA 38 (15 January 2002)

Last Updated: 16 September 2002

FEDERAL COURT OF AUSTRALIA

Naderi v Minister for Immigration & Multicultural Affairs [2002] FCA 38

CORRIGENDUM

POURIYA NADERI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W319 OF 2001

FRENCH J

15 JANUARY 2002 (CORRIGENDUM 11 SEPTEMBER 2002)

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W319 OF 2001

BETWEEN:	POURIYA NADERI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE:	15 JANUARY 2002
PLACE:	PERTH

CORRIGENDUM

On the coversheet, the orders page, the first page of reasons and wherever else it appears within his Honour's reasons, the date "14 January 2002" should be deleted and replaced with "15 January 2002".

Acting Associate:

Date: 11 September 2002

FEDERAL COURT OF AUSTRALIA

Naderi v Minister for Immigration & Multicultural Affairs [2002] FCA 38

MIGRATION - judicial review - Refugee Review Tribunal - no reviewable error disclosed - application dismissed - no question of principle

Sivalingam v Minister for Immigration and Multicultural Affairs (unrep, Federal Court, 5 March 1998, Goldberg J, Judgment No 157/98)

Sivalingam v Minister for Immigration and Multicultural Affairs (unrep, Federal Court, 17 September 1998, O'Connor, Branson and Marshall JJ, Judgment No 1167/98)

POURIYA NADERI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W319 OF 2001

FRENCH J

14 JANUARY 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W319 OF 2001

BETWEEN:	POURIYA NADERI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	14 JANUARY 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant 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	W319 OF 2001

BETWEEN:	POURIYA NADERI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	14 JANUARY 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1 The applicant, who is an Iranian national, arrived in Australia on 27 September 2000. He lodged an application for a protection visa on 12 February 2001 which was refused on 21 March 2001. On 22 March 2001, he applied to the Refugee Review Tribunal ("the Tribunal") for a review of that decision.

2 On 4 July 2001, the Tribunal affirmed the decision not to grant him a protection visa. On 20 July, the applicant filed an application in this Court seeking review of the decision of the Tribunal. In his application he set out the following grounds:

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

2. That 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."

3 It is sufficient for the moment to refer to the Tribunal's findings and reasons without going through all the claims raised before the Tribunal and the delegate by the applicant. The applicant claimed to be a national of the Islamic Republic of Iran and the Tribunal so found. It referred to general country information about Iran. It accepted that Iran is a controlled society and that offences against the State can be severely punished. This did not mean that the applicant was a refugee simply because he was a national of Iran. He had to show he had a well-founded fear of persecution and that this was for a Convention reason.

4 The applicant said his uncle was a member of the Mojahedeen-e-Khalq ("MKO"), but he was not. He claimed that his uncle had sought his assistance in distributing newsletters and pamphlets which he had printed for the MKO. His uncle had told nobody about his involvement with that activity. He had agreed to help with the pamphlets as his family were against the regime and he had been unable to attend university because of his family involvement. His uncle had discovered that the authorities were searching for them both. As a result the applicant left Iran in great fear. His father's home had been searched and his father had been arrested and charged with failing to allow a search of his premises. At the time of the hearing before the Tribunal his father's case had not been concluded. The applicant said he had left Iran on an Iraqi passport.

5 The Tribunal, having summarised the essential elements of the applicant's claims, then turned to the way in which it should approach its fact-finding function. It referred in particular to the proposition that a decision-maker should not place too much significance on the original interview of an asylum seeker. See Sivalingam v Minister for Immigration and Multicultural Affairs (unrep, Federal Court, 5 March 1998, Goldberg J, Judgment No 157/98) and the Full Court appeal, Sivalingam v Minister for Immigration and Multicultural Affairs (unrep, Federal Court, 17 September 1998, O'Connor, Branson and Marshall JJ, Judgment No 1167 of 1998). The Tribunal said that this was an important matter in this case as there were major differences between the claims made by the applicant in his first interview and those made in later submissions. The Tribunal noted that the Minister's delegate had placed emphasis on the fact that in his initial interview the applicant made no mention of his major claim of being an active MKO supporter. The Tribunal however accepted the applicant's statements at the hearing that his first interview with the Department was conducted in difficult conditions. He had arrived by boat, he was suffering from malaria and he had sore feet.

6 The applicant's adviser also submitted to the Tribunal that the applicant had his mind on other things at the interview. The Tribunal found that the applicant had been taken to the Detention Centre and interviewed there some days after his arrival. It took into account his medical condition and his other explanations for not making the MKO claim at his initial interview. However, he had had some days and weeks in which to think about why he was taking the journey he was and on this basis the Tribunal found it was surprising he made no reference to the MKO in his initial interview. The Tribunal regarded it as implausible that a person whose main claim to refugee status derived from his active pro-MKO involvement would make no reference whatever to this major claim on his arrival. He was able, despite his illness, to tell the Department about his problems entering university in Iran and the harassment he received from the Basij for standing outside a girls' school.

7 The applicant's first interview was conducted on 14 November 2000. The statement in which he spoke of his MKO involvement and his anti-regime family was not made until more than three months later, in March 2001. The Tribunal found that his claims about MKO pamphlet distribution and his family's anti-regime profile were made when he realised that what he said at the initial interview would not get him a protection visa. Quite apart from that the Tribunal found his claim to active involvement in the MKO as a pamphlet distributor was not plausible.

8 The Tribunal referred to the position of the MKO in Iran and the fact that the government there regards it as major threat to security and stability. The Tribunal accepted that the applicant's uncle owned a printing business in Iran. It accepted that the applicant's uncle owned a printing business in Iran, that the applicant was employed by the family printing company and later by a subcontracting company of an oil company and that, as claimed, he was able to use a company motor vehicle for private use on occasions. The Tribunal said that the main issue it had to decide was whether or not he was an MKO supporter involved in pamphlet distribution activities with his uncle. It had also to determine what the consequences would be if the applicant were identified by Iranian authorities as an MKO supporter.

9 The Tribunal accepted that if the applicant had a profile as an active distributor of pamphlets he might have reason to fear punishment for his support of the MKO if he were returned to Iran. It referred to country information stating that membership of the MKO would be tightly controlled. It found it implausible that the MKO would accept unknown persons to work for it. A distributor of pamphlets would know the identity and location of MKO supporters and sympathisers. The Tribunal did not think it plausible that the MKO would entrust that information to a person with whom it had no contact.

10 The Tribunal referred to submissions made by the applicant after the hearing to explain the difficulty that he was not screened or known to the MKO. He contended that his uncle, as an MKO coordinator, recruited his own network of sympathisers and he was a member of that network. The Tribunal however did not believe this claim. Neither did it believe that the Ahwaz office of Ettelaat wanted him for anti-regime activities. The Tribunal did not accept the applicant's claim that his uncle had been imprisoned. In the end it did not accept that the applicant had been involved in printing and distribution activities for the MKO or that he fled from Iran to Iraq.

11 The Tribunal referred to a letter from Australia's MKO representative, which was produced by the applicant. That letter, however, did not indicate that he was an MKO pamphlet distributor or that he or his uncle had any involvement with the organisation. The applicant produced documents to support his claims that he used his employer's motor vehicle to carry out the distribution of pamphlets. The Tribunal accepted he was employed by a printing company and a subcontractor to an oil company. The documents simply confirmed that he used his employer's motor vehicle. They did not indicate what he used it for.

12 The Tribunal did not put any weight on a letter from the applicant's father's lawyer saying his father had been arrested for confrontation with government guards, nor did it accept that his family was known to be anti-regime. In his initial interview the applicant said he and his family had never been involved in any political groups. At that time he said he could not enter university because he could not pass the morals exam. Later he said this was because he could not pass the morals exam and because his family was anti-regime. The Tribunal did not accept that there was an anti-regime profile which had anything to do with his inability to enter university. What the Tribunal found was that the applicant left Iran because he was unhappy with his lifestyle there. He had been hounded by the Basij when outside a girls' school. He had not been able to enter university because he could not pass an examination. He wanted a better life and paid money to a smuggler to get into Australia without a visa.

13 The Tribunal also referred to the applicant's claim that he left Iran with a false Iraqi passport. It noted his reference to other Tribunal decisions which have accepted such claims as plausible. It said, correctly, that it is not bound by other Tribunal decisions. It found that the applicant fabricated his claim to create a refugee profile. It did not believe that he was of any interest to the Iranian authorities at the time he left Iran. The Tribunal also dealt with the claim that as a failed asylum seeker the applicant would suffer persecution and found, as a matter of fact, that that would not occur.

14 The applicant's grounds of review did not identify the particular errors which he alleged. He submitted to the Court that the Tribunal had taken a wrong approach in the way it took account of what he said at the initial interview. As he said, and as the Tribunal itself recognised, the failure to make full and comprehensive claims at an initial interview are not necessarily critical to a refugee applicant's case. In this case, however, there was no reference in the initial interview to any basis for a refugee claim. There was reference, however, to other reasons for coming to Australia.

15 The Tribunal was entitled to have regard to the applicant's omission of any claim about involvement with the MKO at the initial interview. It was entitled to take that omission into account, as it did. It took that omission into account in conjunction with other considerations about the believability of the applicant's story. There is no error of law or procedure in the way the Tribunal dealt with that evidence.

16 The applicant also asserted at this hearing that he had wanted to present a photograph to the Tribunal, which they did not accept. The photograph would evidently have shown that his uncle's printing office was closed. He had made a copy of the photograph available before the hearing to his migration advisor. He did not tell the Tribunal what was in the photograph or why it was relevant. He had said that there was no reference to this on the tape of the proceedings before the Tribunal. This claim is not referred to in his application and the assertion he now makes, without evidence, does not disclose any error of procedure on the part of the Tribunal.

17 He also complains that the Tribunal did not make a decision consistent with other Tribunal decisions in similar cases. The factual decisions of each Tribunal must depend on the precise circumstances of the case before it. Consistency in Tribunal decisions is obviously desirable, but no Tribunal is bound, as a matter of law, to come to the same conclusion as another Tribunal on similar facts and the Tribunal member made reference to that in the reasons for decision.

18 The applicant has not shown any error of law or procedure in this case. I therefore order that the application is dismissed and the applicant is to pay the respondent's costs of the application.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated:

	Mr P Naderi appeared on his own behalf.
Counsel for the Respondent:	Mr AA Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 January 2002
Date of Judgment:	14 January 2002