W308/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 82 (12 February 2002)

Last Updated: 13 February 2002

FEDERAL COURT OF AUSTRALIA

W308/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 82

Migration Act 1958 (Cth) ss 36(2), 476(1)(e), 476(1)(g)

Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 cited

W308/01A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 308 of 2001

RD NICHOLSON J

12 FEBRUARY 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	308 of 2001

BETWEEN:	W308/01A APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	12 FEBRUARY 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	308 of 2001

BETWEEN:	W308/01A APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	RD NICHOLSON J
DATE:	12 FEBRUARY 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1 This is an application seeking an order for review of a decision made by the Refugee Review Tribunal ("the Tribunal") on 27 June 2001. The decision was to the effect that the Tribunal affirmed a decision of a delegate of the respondent not to grant to the applicant a protection visa (class XA). The application seeks to invoke aspects of the jurisdiction of the Court pursuant to s 476(1) of the Migration Act 1958 (Cth) ("the Act").

2 The application was first set down for hearing on 13 December 2001. However, due to stress and anxiety then said to be experienced by the applicant (a factor which he claimed continued at this hearing of the application), the hearing was changed to 5 February 2002. Notice of that change was given to the applicant in writing by letter from the District Registrar dated 17 December 2001.

3 The applicant is a citizen of Iran. He arrived in Australia on 27 December 2000. He applied for the visa on 20 January 2001.

Relevant provisions

4 Under s 36(2) of the Act a non-citizen in Australia is eligible for a protection visa if that person is someone: "... to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." The Refugees Convention is the Convention Relating to the Status of Refugees 1951 and the Refugees Protocol is the Protocol Relating to the Status of Refugees 1967. The expression "Convention" will be used to mean the Convention as amended by the Protocol. The same criterion appears in Sch 2 of the Migration Regulations in which item 785 and 866 both include the same criterion.

5 Article 1A(2) of the Convention defines a "refugee" to be any person who:

"...owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it".

6 The reasons specified in Art 1A(2) are known as Convention reasons. The existence of such reasons threatening the life or freedom of a refugee in a territory to which it is proposed he or she be expelled or returned gives rise to a protection obligation prohibiting such expulsion or return as a consequence of Art 33 of the Convention.

7 The applicant's claim was that he had a well-founded fear of persecution if he is returned to Iran by reason of his political profile or imputed political profile.

Applicant's claimed circumstances

8 When the Tribunal came to review the decision of the delegate it had in the evidence before it two accounts from the applicant in relation to which there were potentially significant inconsistencies.

9 The first account was given in the applicant's departmental interview on 29 December 2000. There he stated that his problems had begun in April 2000 when he went to visit the city of Khoramabad with friends. Significant facts in that account were the following:

§ Clashes had occurred in the city with students and a group supported by Sepah (Iranian Intelligence).

§ On departing from the city he and his friends were stopped at a checkpoint by Basiji (a paramilitary volunteer force often aligned with specific members of the leadership authorities acting as vigilantes).

§ He was detained because he did not have his ID with him and was questioned for hours.

§ He had with him books and magazines belonging to a political party.

§ Authorities concluded that he belonged to the political party and was in the city to attend the seminar and had been involved in the disturbance against the government.

§ The authorities took his name and details.

§ He attended the authorities for further questioning including providing details of himself and his family. The authorities disputed information he had given on a nephew and wanted further information on his brother, who had escaped to Pakistan.

§ The authorities obtained his notebooks.

§ His employer retrenched him due to political reasons.

§ He was continually being questioned.

§ So were his neighbours.

§ He could not obtain employment as a result and could not survive without employment.

§ In his view the authorities were expanding on the political issue and wanted to "get me".

10 In his application for a protection visa the applicant provided a written statement prepared on his behalf by migration agents. In that statement he gave the following additional facts in relation to the events previously set out, namely:

§ The book which was found in his briefcase at the Basiji checkpoint was by an author who was in jail for opposing the regime.

§ The authorities at that point also found a newspaper (against the regime).

§ They also found some documents belonging to his company.

§ He was detained and interrogated for two days.

§ On return to work he was interrogated by two people under the Sepah Pastarans (the owner of the construction company with which he was employed) Protection Section. He had to fill in a comprehensive questionnaire concerning his family background and education, past employment, information about close friends and whether he had relatives/friends who were political activists.

§ He was made to give an undertaking he would not pass on any information to anyone about the company.

§ One week later he was fired from his employment.

§ He lodged a complaint letter and the Department of Employment reinstated him but that was not accepted by his company.

§ He lodged a second complaint letter and was told that nothing could be done as his company refused to accept him back. His formal retrenchment occurred on 21 September.

§ As he was living in company accommodation he was obliged to move.

§ While he was packing his belongings, three people from the Information Section of the security forces came to search his room. They found some documents which linked the directors of the company with embezzlement and contained secrets about the policies of the organisation. The documents were a threat to the organisation. He was looked upon like a spy by the security forces.

§ He was detained for 20 days and interrogated 16 - 17 times. During the interrogations he was shown his undertaking and the questionnaire and told that although he had said no friends or relatives were involved in political activities his cousin was with the Mojahedin and was executed 10 - 13 years ago and his brother had fled to Pakistan 5 years ago.

§ They accused him of collecting all relevant financial information and embezzling documents to send them to outsiders and particularly to the cousin in Pakistan.

§ He was tortured by being hung from a ceiling fan with his hands tied.

§ After 20 days an apology was given to him for the mistreatment. He was told they had made a mistake and he was released.

§ On returning home, brothers of his girlfriend told her (who told the applicant's sister) that he had been released so that he could be followed and lead to more information.

§ They also said that the applicant was being used for bait and when he was not needed any more he would be executed.

11 On 20 June 2001 the Tribunal wrote to the applicant referring to the difference between the above two accounts, particularly in relation to the possession of documents exposing the corruption of his employers and his detention and torture for 20 days. He was invited to comment on the fact that it was open to the Tribunal to conclude this situation did not occur since he had not reported it at the first interview and the accounts differed significantly. He was also given two reports on the treatment of people involved in corruption which indicated, it was said, that he could have dealt with his corrupt employers by reporting their corruption. He was invited to comment on that information.

12 By letter dated 21 June 2001, consultants representing the applicant made submissions on his behalf. They said that the applicant having recently arrived in Australia after a long and stressful journey was tired and nervous at his first interview and did not feel he was in a safe environment and that it was only after obtaining legal advice that he disclosed his complete story. Secondly, the submission sought to reconcile his two statements in relation to the company documents by saying that these were the notebooks referred to in the first interview in which he believed he was to give a general overview. Thirdly, it was asserted that he had consistently claimed he was dismissed from his position for "political reasons".

Tribunal's reasons

13 In its reasons for decision the Tribunal set out a number of matters which emerged from its interview with the applicant. The Tribunal noted the applicant agreed he had never belonged to any political organisation, although he had a relative who was executed for his membership in the Mojahadin. The applicant said it was correct he first faced problems with the authorities around August 2000 when he went to Khoramabad. He said he was aware that a book, he claimed to be co-written by Akbar Gangi, was written by the author who was arrested and sentenced to 10 years in prison in January 2001 and that he (the applicant) said he had not thought he would be arrested or checked even though he was aware the demonstration would be monitored by the Basiji who were known for their intrusiveness. The Tribunal considered it strange the applicant would borrow a banned book and take such a risk in those in those circumstances. It was put to the applicant that he made no mention of any detention and torture for 20 days following his dismissal and that was a significant matter which he failed to mention. The applicant said he was interviewed about two days after his arrival in Australia and he was not sure who he was talking to or whether or not he was in safe hands.

14 In regard to the applicant's claimed illegal departure from Iran, the delegate referred to country information from the Department of Foreign Affairs Trade which stated at worst, knowledge that an individual has sought political asylum would not result in much more than verbal harassment, unless the asylum seeker concerned had a high opposition political profile.

15 The Tribunal made the following findings:

(1) The applicant was briefly questioned for a period of hours by the Basiji when he was unable to identify himself travelling out of Khoramabad, he was released after questioning and accordingly he was not of significant interest or concern to the authorities. The Tribunal accepted the Basiji were not interested in speaking to is witnesses and concluded this was because they were not sufficiently concerned about the applicant's profile and therefore felt no need to check his story. He would not have been released if the Basiji had any reservations in regard to his involvement in the demonstrations.

(2) It was implausible that the applicant risk taking a copy of a banned book in circumstances where he knew the Basiji was an intrusive body and there were significant numbers of them in the area at the time.

(3) If the Tribunal was wrong and the applicant did have the book and it was found by the Basiji, it was not of serious concern, since, by his account they released him which they would not have done given the nature and powers of this body if they believed he was of political concern.

(4) In relation to his claimed dismissal as a consequence of investigations in regard to his political status and problems associated with two of his cousins, the Tribunal concluded that the authorities would have raised any concerns about his links with the Mojahadin, or any opposition group in the past 5 - 10 years, if they had any. The Tribunal did not accept the applicant's claims they became concerned in this regard in August or September 2000 because of his visit to Khoramabad without his identification card even if the book he claimed to have was in his possession.

(5) In his application for a protection visa the applicant claimed he had voiced his opposition to the government at work since 1998. The Tribunal concluded the claims were general and without substance.

(6) At the Tribunal hearing the applicant claimed he had spoken out against corrupt practices and his problems at work were not political. The applicant provided two documents to support his claim to have been dismissed. One of the documents indicated that he was transferred from one work place to another from 21 January 1999 and he made no claims that this was for any adverse reason. The second document lists the applicant as a "plaintiff" and the he was to attend the Office of the Employment and Social Affairs at 8.30am on 21 September 2000. He made no claims that this was for any adverse reason, the nature of the form led the Tribunal to find the applicant had been dismissed and had appealed against the dismissal and his case was heard on 21 September 2000. The Tribunal accepted that the applicant appealed against a dismissal he believed to be wrongful and the decision to dismiss him was upheld. However, it did not accept the reason for the dismissal was political since the applicant claimed the main problem he had at work was making complaints against the corrupt practices of his superiors. Furthermore, the Tribunal did not accept he would have appealed to the government if the grounds of his dismissal were political.

(7) The Tribunal did not accept the applicant had been detained and tortured for 20 days for the reason he had documents which linked the directors of his company with corruption because the claim was the most serious harm he suffered and was not made when he was first interviewed and if the incident had occurred the applicant would not have failed to refer to it.

(8) The Tribunal did not accept the reason for not disclosing this was because the applicant was tired and stressed. It noted the applicant provided full details of his work history, his addresses and family background and made claims which were critical of the Iranian regime and authorities at the interview shortly after his arrival. Accordingly, it was not satisfied the claimed stress and lack of trust in the authorities was the reason he failed to mention his alleged detention and torture. In this regard the applicant acknowledged and understood he was warned and put on notice at the beginning of the interview that any variation or inconsistency in his accounts could raise doubts about the reliability of what he had said. The Tribunal concluded the failure to make the claim was because it had been fabricated.

(9) Even if the Tribunal accepted the applicant's claims to have argued with his employers about corruption for a period of time and that he was later found to have documents to show that corruption and he was unfairly dismissed, the Tribunal found that was not for a Convention reason.

(10) The applicant was dismissed, but not for a Convention related reason.

(11) Failed asylum seekers can return to Iran where they may face questioning and possibly verbal harassment. The consequences of illegal departure, without more, (that is with no political profile) is a fine.

(12) The applicant did not face a "real chance" of persecution and any fears that he may hold in this regard were not well-founded.

Grounds of review

16 At one stage it seemed the applicant may retain the services of pro bono counsel. However, counsel withdrew, apparently without notice to the applicant. Experience in the Registry is that other counsel, exhausted by the demands of pro bono appearances generally in this jurisdiction, are not presently available. Therefore the applicant appeared unrepresented.

17 In his application for review he relied on grounds commonly used from the place where he is detained and based on s 476(1)(g) (no evidence) and s 476(1)(e) (error of law and interpretation and application). However, being unskilled in law he was entirely unable to, nor could be expected to, support the grounds by way of legal argument.

Applicant's submissions

18 The principal thrust of the applicant's submissions was that his campaign against corruption was a political activity. He said this was the case because corruption was so wide-spread among the leadership of his country that any action against corruption must be taken as a political activity.

19 The other principal thrust of the applicant's submissions was that the Tribunal, approaching the matter negatively, had ignored the significance of matters which he had put to it. In effect, his submissions were inviting the Court to remake findings of fact made by the Tribunal by giving a different weight to the evidence which had been before the Tribunal.

Reasoning

20 It is not surprising the applicant, as a person without legal skills, would not appreciate that this Court does not have the jurisdiction which would enable it to remake findings fact made by the Tribunal. Its jurisdiction is limited to examining the reasons of the Tribunal to find if there are any errors of law within the permissible heads set out in s 476(1) of the Act. Importantly, the applicant must appreciate that this Court cannot go behind adverse findings of credibility made by the Tribunal save in accordance with the provisions of s 476(1).

21 Furthermore, in response to matters submitted by the applicant in reply, it is not the case that the Tribunal can be said to have ignored or not been interested in his claims concerning corruption. This is apparent from an examination of the reasons of the Tribunal which include the full text of his written statement of 20 January 2001 concerning which the Tribunal wrote to him.

22 Furthermore, the applicant in common with other applicants had, as the Tribunal's reasons record, been put on notice at the beginning of his first interview that any variation or inconsistency in his account could raise doubts about the reliability of what he had said, a warning which he acknowledged and understood. The Tribunal was entitled to conclude on the material before it that if the 20 day detention had occurred, it would have been of the category of the most significant harm he had suffered in Iran so that he could be expected to have mentioned it.

23 In relation to his claims that his case against corrupt practices was in the character of political activity, the Tribunal recorded that he had provided two documents to support his claims but neither of these supported a claim that his problems at work were political. There was therefore evidence upon which the Tribunal could reach its decision that it did not accept the reason for his dismissal was political.

24 There is nothing in the Tribunal's decision to suggest it made an error in relation to the interpretation of the Refugees Convention as amended by the Refugees Protocol of 1967 or incorrectly applied the Convention. The essential basis for the Tribunal's decision was it simply did not believe the applicant's alleged mistreatment at the hands of the authorities. The Tribunal gave reasons why it disbelieved the applicant. Whether or not the Court agrees with those reasons does not give rise to an error of law or jurisdictional error.

25 There was evidence and material justifying the making of the decision that the applicant did not have a well-founded fear of persecution by reason of his political opinion, real or imputed, if he returned to Iran within the reasonably foreseeable future. The Tribunal's conclusion that it was not satisfied the applicant was a person to whom Australia has protection obligations under the Refugees Convention was open to it on the material before it.

26 Indeed, the factual findings of the Tribunal made it inevitable the applicant's claim of having a well-founded fear of persecution, on the basis of imputed political opinion and because of his claimed fleeing from authorities, would fail: compare Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510, per Gleeson CJ and McHugh J at [84] - [86].

27 There was not reviewable error within the meaning of S 476(1) of the Act.

Conclusion

28 For these reasons I consider the application must be dismissed.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson .

Associate:

Dated: 12 February 2002

Counsel for the Applicant:	The applicant represented himself
Counsel for the Respondent:	Mr L Tsaknis
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 February 2002
Date of Judgment:	12 February 2002