Appellant WAEC of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 147 (19 July 2002)

Last Updated: 19 July 2002

FEDERAL COURT OF AUSTRALIA

Appellant WAEC of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 147

APPELLANT WAEC OF 2001 v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 593 of 2001

GRAY, RD NICHOLSON & EMMETT JJ

19 JULY 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W593 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPELLANT WAEC OF 2001 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	GRAY, RD NICHOLSON AND EMMETT JJ
DATE OF ORDER:	19 JULY 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. the appeal be dismissed; and

2. the appellant pay the respondent's costs.

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 593 of 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPELLANT WAEC OF 2001 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	GRAY, R D NICHOLSON AND EMMETT JJ
DATE:	19 JULY 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

GRAY J:

1 I have read the joint reasons for judgment of Nicholson and Emmett JJ in draft form. I agree with what their Honours have said, except in relation to the question of the claim, made by the appellant in the course of the hearing of the appeal, that the Refugee Review Tribunal ("the Tribunal") had failed to consider whether he had a well-founded fear of persecution on the ground of his political opinion. On that question, I have reached a conclusion different from that of their Honours.

2 It is unnecessary for me to set out all of the facts of the case, or to deal with the issues on which I am in agreement with Nicholson and Emmett JJ. The following reasons are those relating to the issue of political opinion. I need only state the facts so far as they bear upon that issue.

3 In its reasons for decision, under the heading "Background Information", the Tribunal made what appear to be findings as to the situation in Iran, in the following terms:

"The Government's human rights record remained poor in 2000. Systematic abuses include extrajudicial killings and summary executions; disappearances; widespread use of torture and other degrading treatment; harsh prison conditions; arbitrary arrest and detention; and prolonged and incommunicado detention. Judicial proceedings were instituted against some government officials for misconduct, but perpetrators often committed such abuses with impunity. The judiciary suffers from government and religious influence, and does not ensure that citizens receive due process or fair trials. The Government uses the judiciary to stifle dissent and obstruct progress on human rights. The Government infringes on citizens' privacy rights, and restricts freedom of speech, press, assembly, and association. The Government closed nearly all reform-oriented publications during 2000 and brought charges against prominent political figures and members of the clergy for expressing ideas viewed as contrary to the ruling orthodoxy. However, the Ministry of Culture and Islamic Guidance continued to issue licenses [sic] for the establishment of newspapers and magazines, some of which challenged government policies."

4 Notwithstanding the deficiencies in the appellant's case relating to political opinion, to which Nicholson and Emmett JJ refer, the Tribunal said as to the appellant's claims:

"At the hearing, [the appellant] said that he had long been troubled by the political and human rights situation in Iran. He claimed that while he was at technical school he had arguments with the religious instruction teacher about the role of religion in politics and because of this he was often expelled from the class. His views developed during his time in military service and when he began to work. There was a lack of freedom of expression and bribery and corruption were common. He did not approve of these things, but kept his views to himself as to do otherwise would have caused problems for his family. He was never involved with any political groups or activities until he saw the demonstrations developing in Abadan and decided he had to join in."

5 Despite setting out in this way the appellant's claims about his political views, the Tribunal did not make any finding as to their truth. If they were true, they might have put the appellant into the category of a political dissident in Iran. In the light of its findings, quoted above, as to the manner in which the Government of Iran deals with dissent, acceptance that the appellant was a political dissident might have led the Tribunal to consider whether his holding of dissenting opinions might lead to the appellant suffering some of the drastic consequences to which the Tribunal referred. If it would, the Tribunal would have had to consider whether there was a real chance that the appellant would suffer persecution by reason of his political opinion. If so, the Tribunal might have found that the appellant had a well-founded fear of persecution for this reason, if he should be returned to Iran.

6 Obviously, it would have been necessary for the Tribunal to determine whether the appellant would have kept his opinions to himself, as he had in the past, in order to protect his family, or whether he would have felt compelled to make them public by acting in accordance with them. Relevant to this question would have been the fact (which the Tribunal appears to have accepted) that the appellant had been prepared to make himself conspicuous as a social dissident by his manner of dress and his long hair. Also relevant would have been the appellant's claim that the demonstrations in Abadan had been the catalyst for his first public expression of his political views. It is true that the Tribunal disbelieved the appellant as to his participation in the demonstrations. Depending on the level of its disbelief, it was bound to take into account the making of the claim, and the possibility that it might have been true, in assessing whether there was a real chance of persecution for a Convention reason if the appellant returned to Iran. See Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 (1999) 93 FCR 220 at [60] - [63] per Sackville J, with whom North J agreed, and at [137] per Kenny J.

7 After the Tribunal had completed its hearing, the appellant sent to it by facsimile transmission on 8 March 2001 a hand-written letter dated 7 March 2001, from another person. Relevantly, the letter was in the following terms:

"Respectfully there is some clarification in respect of the demonstration of July 2000 occured [sic] in Abadan in order to support the application of [the appellant]. The writer was a witness of the demonstration. ...

The movement and demonstrations in July 199 2000 [sic] in order to achieve some token rights and to overthrow the Religious-Militarist government of the middle ages occured [sic] in Abadan. There are some reason [sic] for necessity of the protest.

1 - Existance [sic] of petroleum industries and its political-economic importance in the area, particullarly [sic] Abadan and frequent protest and strikes by workers in order to wanting their trade rights before July 2000 is clearly considerable. Struggles of the working class before and after the revolution of 79 has been affective [sic] in all circumstance.

2 - The destructive effects of 8 years war b/w Iran and Iraq homelessness of citizens, getting forced to a destroyed city, exploitation, lack of facilities and deprivation of basic human rights (lack of drinking water in 35°C tempriture [sic]).

3 - Transportation of MKO members and other opposed parties in Abadan, existance [sic] of team houses, barracks and border to Iraq can make facility for opposition to operate in Abadan.

4 - Some month before July demonstration there was some kind of activity in a low exten [sic] such as distributing pamphlets in light of trade unions activities.

5 - Inviting people to a general protest, outspeaking in order to breaking the cruel policy of the regime and Mullas was the subject of the pamplets [sic] and slogans which distributed under various names in every part of the city.

6 - The demonstration seems to be commemorating the student suppressed demonstration in Tehran university in July 1999. Involvement several thousand demonstrators is considerable.

7 - However the demonstration is nominated as the greatest Anti-regime movement after the 79 revolution but due to the lack of independent media the reports are mainly fabricated and untruth.

8 - The regime claimed that the protest was due to the problem of water and then confessing and attribut [sic] the incident to a particular opposition party the MKO by regime's media was in order to cover up the crime made by Basiji and the Ansar-Hezbollah thugs. The slogan of other days, Down with MKO is proving this claim.

9 - Tens killings, hundred arrests and injured of demonstrators and protestors and imprisonment to unlimited periods disappearances cleary [sic] shows the depth of protests against regime and their brutal suppression, for example the riot in Abadan's prison a month later due to lack of capacity of the prison, in which a prisoner was killed.

10 - Frequent arrests of unguilt [sic] people in their own places by intelligent forces and torture relative instead of fled demonstrators shows the horror and dictatorship of Mulla's and their fears of such a demonstration.

Eventually and cumulatively all the protest are generally in order to explain the peoples disagreement to the religious regime and the people are explaining 22 years suppression in such ways.

The question is, wether [sic] the people have right to live, and if so, the important right is to struggle against the crule [sic]."

If accepted as true, the material in this letter casts the Abadan demonstrations in a broader political light than merely protests about the quality of drinking water. If the Tribunal had accepted the letter, or parts of it, as true, it might have affected the approach the Tribunal took to the appellant's account of his claimed role in the demonstration. The Tribunal did not deal with the letter at all. It did not mention it in its reasons for decision. It is a fair inference that the Tribunal received the letter on or shortly after the date on which it was sent. It was placed in the Appeal Book in this proceeding by those representing the Minister, along with other documents in the Tribunal's file. The Tribunal was bound to take the letter into account. It could not refuse to have regard to potentially relevant material that came into its possession up to the time when it made its decision. See X v Minister for Immigration & Multicultural Affairs [2002] FCAFC 3 [2002] FCA 56 at [13] - [24] per Gray J and the authorities there cited.

8 Put together, the appellant's claims about his political views, the Tribunal's findings on the manner in which the Government of Iran deals with political dissent, the appellant's history as a conspicuous social dissenter, his claim of involvement in the Abadan demonstration and the contents of the letter of 7 March about the nature of the demonstrations in Abadan were capable of making a case that the appellant had a well-founded fear of persecution if he should return to Iran. The Tribunal did not consider that case. It considered only the issues of the appellant's dress and appearance, his claimed involvement in the demonstration and his claim that he had left Iran illegally. It viewed his claim based on the Convention reason of political opinion as restricted to his alleged involvement in the demonstration. In dealing with the appellant's case in this manner, the Tribunal failed to consider the case he was putting. It thereby made an error of law of a kind described in the joint judgment of McHugh, Gummow and Hayne JJ in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 180 ALR 1 at [82]. By restricting the nature of the case it considered, it failed to take into account a relevant consideration, namely the case that the appellant put.

9 It is true that the appellant did not put this argument before the learned primary judge, and did not therefore give his Honour an opportunity of considering it. Counsel for the Minister did not object to the appellant's submissions about the nature of the case he put before the Tribunal. As the appellant is unrepresented, it is appropriate to give him some latitude as to the grounds of appeal. If it appears that the Tribunal made an error of a kind that falls within one of the grounds specified in s 476 of the Migration Act, it is appropriate that he should succeed on the appeal and the case should be remitted to the Tribunal for further consideration.

10 For these reasons, the appeal should be allowed. The orders of the learned primary judge should be set aside. For them should be substituted an order setting aside the decision of the Tribunal and remitting the matter to the Tribunal, differently constituted, for reconsideration. The Minister should be ordered to pay the appellant's costs of the proceeding at first instance and of the appeal.

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

Associate:

Dated: 16 July 2002

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W593 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPELLANT WAEC OF 2001 APPELLANT
	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	GRAY, RD NICHOLSON AND EMMETT JJ
DATE:	19 JULY 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

RD NICHOLSON & EMMETT JJ:

11 The appellant is a citizen of Iran, who arrived in Australia on 18 October 2000. On 9 November 2000 he lodged an application for a protection visa under the Migration Act 1958 (Cth) ("the Act"). On 13 December 2000 a delegate of the respondent, the Minister for Immigration & Multicultural Affairs ("the Minister"), refused to grant a protection visa. On 15 December 2000, the appellant applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision. On 14 May 2001 the Tribunal affirmed the decision of the delegate. The appellant then applied to the Federal Court of Australia for an order of review of the Tribunal's decision. On 4 December 2001, a judge of the Court dismissed that application with costs. By notice of appeal filed on 28 December 2001, the appellant now appeals to the Full Court from those orders.

THE APPELLANT'S ORIGINAL CLAIMS

12 On 22 October 2000, the appellant was interviewed by an officer of the Department of Immigration & Multicultural Affairs ("the Department") in the presence of an interpreter of the Farsi language ("the entry interview"). At the entry interview the appellant told the interviewer that he was a Muslim, was single and was 25 years old. He said that he had left Iran "about three months ago", being July 2000, and that on his way to Australia he had passed through Malaysia, where he said he remained for fifteen days and Indonesia, where he said he remained for about two months.

13 When asked why he had left Iran, the appellant responded that he had left for political, social and personal reasons. In explaining the social reasons the appellant said that he felt that he did not have human rights in Iran and that he had been assaulted many times for having long hair and for "wearing tight pants and shirt". He stated that the "attitude toward his appearance was worse in small towns". He said that on one occasion his T-shirt had been torn because it had a representation of the Union flag upon it. He went on to say that, because of the manner in which he dressed and the way he wore his hair, he was unable to obtain a full-time job.

14 In explaining the political problems he faced, the appellant said that, prior to his departure from Iran, he had gone to the market in Abadan, the town of his birth. He said that when he arrived, "everyone" was complaining about the high price of water and that the water was salty. He said that many people wanted to demonstrate their anger to the authorities and that, as a person born in Abadan, he felt that he ought to demonstrate as well.

15 He said that he and the other demonstrators went to another town named Amiri and that certain members of the crowd became violent and damaged property. He said that, although he did not "do anything wrong", he had carried a banner which said "Mayor: We want water". The appellant said that, upon seeing that the demonstration had turned violent, he left and went back to Abadan. He stated that, on the day of the demonstration, the police had not interfered.

16 However, he said that one week later he had heard from his relatives in Abadan that he had been identified by the police. He said that he immediately tried to get to Tehran, as he "knew that his life was in danger". He said that he arranged to leave Iran by air, that he passed through Iranian immigration without incident and that, although he was nervous, he felt comfortable because he had not been arrested and his "name was not on the blacklist".

17 The appellant enlarged on his claims in subsequent submissions and interviews in support of his application for a protection visa. The details of those occasions are dealt with below.

THE FINDINGS OF THE TRIBUNAL

18 The Tribunal considered the appellant's claims to persecution, both as a result of his personal appearance and as a result of his purported involvement in the demonstration described above. The Tribunal found that, whatever the reason, the harm done to the appellant relating to his appearance could not be classified as persecution, since it amounted to "nothing more than insults and threats in the street". The Tribunal found that his claims that he could not find full-time employment could not be classified as persecution within the terms of the Refugee Convention.

19 The Tribunal rejected the appellant's claim that he had participated in a demonstration relating to the quality of the water in Abadan in August 2000. The Tribunal noted that external evidence indicated that the demonstration had actually occurred in July 2000. Even leaving that aside, the Tribunal did not find it plausible that the appellant would have joined a protest in a town he seldom visited. The Tribunal did not believe his evidence as to the action of the police on the day of the protest. It found that the evidence was contradictory, and changed as the appellant became aware of flaws within it. Finally, the Tribunal found that, even if it accepted that the appellant had participated in the demonstration, it was implausible that the appellant would have been identified and vigorously pursued by police. It referred to external evidence indicating that the demonstration consisted of around 50,000 persons and that, although some people had on the day of the protest been detained for violent behaviour, most of those were not held for long. The Tribunal found it implausible that the authorities would have any continuing interest in the appellant.

THE GROUNDS OF APPEAL TO THE FULL COURT

20 The appellant's notice of appeal sets out grounds as follows:

"* [the appellant] received judge's decision late by fax to DIMA

* [the] appellant is not happy with the decision from the Federal Court. U.N. Convention can apply in this instance / [sic] to claim status as a refugee in Australia"

Since the notice of appeal was filed within time, whether the appellant "received...[the]...decision late by fax" appears to be of no moment. The second "ground" appears to be no more than an invitation to the Court to reconsider the merits of the case, a course that is not open to the Full Court.

21 The appellant was not legally represented on the appeal, although he was assisted by an interpreter in the Farsi language. It is appropriate to regard the second ground of appeal as a general complaint that there was some error in the conclusions of the primary judge in relation to the grounds of review contained in the amended application to the Court. Before the Full Court the appellant did not expressly address the grounds in the amended application. Rather, in the course of his oral address, he raised several other complaints outside those grounds.

22 Counsel for the Minister informed the Court that no objection would be taken to the reliance by the appellant on those other complaints, notwithstanding the absence of reference to them in either the amended application or the notice of appeal. The complaints will therefore be dealt with. However, it is appropriate first to deal briefly with the grounds that were argued before the primary judge.

CONCLUSIONS OF THE PRIMARY JUDGE

23 The amended grounds of review before the primary judge were as follows:

"5. The grounds of the application are that the Tribunal erred in law in applying the definition of "a refugee" as contained in the Refugees Convention to the facts as found by the Tribunal.

PARTICULARS

.........

c) The Tribunal considered the definition of persecution in relation to the Applicant to mean "some serious punishment or detriment or some significant disadvantage or detriment in (Iran) within the reasonably foreseeable future."

d) The Tribunal noted that the Applicant had been in employment or in business and concluded that his appearance did not have a serious impact on his life and the treatment suffered did not amount to serious harm constituting persecution and that there was nothing in the evidence which would indicate that the Applicant would be more likely to experience serious harm amounting to persecution because of his appearance if he returned to Iran now than in the past.

e) The Tribunal failed to apply the correct test as to the meaning of persecution under the Refugees Convention; namely that, unjustifiable and discriminatory conduct, officially tolerated, directed at the Applicant for a convention reason is persecution, unless the impact of the conduct is trivial or insignificant.

f) The Tribunal failed to apply the correct test for the Applicant's fear of persecution to be well founded, namely whether there was a real chance of persecution now or in the foreseeable future if returned to Iran. The Applicant did not have to satisfy the Tribunal that he would be more likely to experience "persecution" in the future than in the past."

24 Those particulars suggest two grounds:

* first, that the Tribunal had misunderstood the "meaning of persecution", and,

* secondly, that the Tribunal "failed to apply the correct test for the Applicant's fear of persecution to be well founded".

THE MEANING OF "PERSECUTION"

25 In the first section of its reasons, the Tribunal dealt with the definition of "refugee" in the following terms:

"It is a criterion for the grant of a protection visa that, at the time of the decision, the Tribunal is satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention and Protocol relating to the Status of Refugees. According to the definition contained in this Convention, a refugee is a person who:

...owing to 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...

Under Australian law this definition has been interpreted to mean that, to be a refugee, an applicant must be afraid to return to their country of nationality and there must also be a real chance that they will be persecuted, that is that they will face some serious punishment or penalty or some significant detriment or disadvantage in that country within the reasonably foreseeable future. Furthermore, this harm must be inflicted by someone motivated to persecute them because of their actual or imputed race, religion, nationality, membership of a particular social group or political opinion. The threat of harm need not be the product of government policy or activity, but it must have an official quality in the sense that it is tolerated by the authorities of the country concerned or that they are unable to control it."

26 The appellant contended before the primary judge that, in defining persecution in the manner quoted above, the Tribunal erred in law and that the mistaken definition of persecution resulted in the Tribunal's misinforming itself as the to true meaning of "refugee", since, in the Convention, the definition of the latter is dependent upon a correct interpretation of the former. His Honour considered the grounds of review and the oral arguments of counsel for the appellant and found, after a review of the relevant law, that the Tribunal had not misdirected itself in law on the meaning of the word "persecution".

27 For there to be "persecution" within the meaning of the Convention, it must be demonstrated:

"that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage if he returns."

Persecution requires a threat of serious harm - see Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14. Thus, there is a degree of severity of punishment or penalty below which persecution will not be made out - see Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 388 and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 570.

28 The primary judge held that, despite its reference to "serious harm", the Tribunal did not equate persecution with an impermissibly high level of harm and apply that as a rigid test. There was no error in the primary judge's conclusion in that regard.

WHETHER THE TRIBUNAL APPLIED THE CORRECT TEST FOR "A WELL-FOUNDED FEAR"

29 Before the primary judge the appellant contended that the Tribunal failed to apply the correct test for his fear of persecution to be well founded, namely, whether there was a real chance of persecution now or in the foreseeable future if he returned to Iran. Counsel for the appellant focused on a sentence within the Tribunal's reasons as follows:

"Furthermore, there is nothing in the evidence before me which suggests that he would be more likely to experience serious harm amounting to persecution because of his appearance if he returned to Iran now than he was in the past."

The contention was that the Tribunal erred in so far as it considered that it was necessary for the applicant to be "more likely" to experience serious harm upon return to Iran than the likelihood of serious harm which he experienced before he left Iran.

30 His Honour observed that counsel for the appellant conceded, during oral argument, that "this ground, on its own, would not be maintainable". In the sentence immediately preceding that quoted above, the Tribunal noted that the harm to which the appellant had been subjected prior to leaving Iran had been "threats and insults" and that that, as such, could not be characterised as "serious harm". His Honour interpreted the sentence as meaning simply that there was no evidence to suggest that the likelihood of the appellant suffering persecution in the future was any different from what it had been in the past. Stated more simply, there was no evidence to suggest that there would be any change in that situation if he returned to Iran.

31 That interpretation of the Tribunal's reasons is correct. Read within the context in which it is found, the sentence quoted above is no more than a conclusion that there was no reason to find that the likelihood of serious harm to the appellant had changed during his time outside Iran. There was no error in his Honour's reasoning and the ground of review must fail.

ADDITIONAL COMPLAINTS ON APPEAL

32 The appellant referred to three matters in the course of his oral address to the Court as follows:

(1) He said that his application was rejected because of the personal beliefs of the Minister's delegate and of the member of the Tribunal who dealt with his case. He said that they could not know what the situation was in Iran since they had no personal knowledge of that situation. Rather, they relied on material provided by the Department of Foreign Affairs and Trade ("DFAT"). That material was based on information furnished to DFAT by the authorities in Iran. As such, it could not be relied upon. Neither the delegate nor the member of the Tribunal was in a position to know what the situation was in Iran and was therefore not competent to make a decision about the appellant.

(2) At the hearing before the Tribunal, interpretation of the appellant's evidence and submissions was carried out by telephone with an Afghan who was not an Iranian. While the interpreter spoke Farsi, the interpreter could only do so with an unfamiliar accent. Occasionally the member of the Tribunal was unable to hear what the interpreter said.

(3) The appellant also said that the Tribunal member did not understand that his case was about his political policies and philosophies. The Tribunal dealt only with the examples he gave of those political policies and philosophies but not with the underlying policies and philosophies themselves. Thus, the Tribunal member dealt only with the treatment accorded to him because of his long hair and clothing and his claims to have participated in the demonstration in Abadan concerning water quality. The Tribunal did not deal with his underlying claims that he came to Australia because of his dissatisfaction with the regime in Iran.

COMPETENCE OF THE TRIBUNAL

33 While it may be seen by the appellant to be an unsatisfactory procedure for fact finding to be undertaken by the Tribunal, that is the procedure that has been ordained by the Parliament. There was no error on the part of the Tribunal in the fact-finding process that it adopted. It was entitled under s 424(1) of the Act to get any information that it considered relevant. There is no substance in the first additional complaint.

COMPETENCE OF THE INTERPRETER

34 This complaint was not made to the primary judge. Further, the appellant made no reference to any particular misapprehension on the part of the Tribunal as a consequence of poor interpretation of his evidence and submissions. There is no substance in this complaint.

APPELLANT'S POLITICAL POLICIES AND PHILOSOPHIES

35 The essence of the complaint under this head appears to be that, having reached its conclusion concerning the demonstration, the Tribunal was still under an obligation to enquire further as to whether or not the appellant was at risk of persecution, if he returned to Iran, because of political policies and philosophies espoused by him. The appellant contended that the Tribunal misunderstood his case from the beginning and that his case had always been that he had political policies and philosophies that would put him at risk if he returned to Iran. He said that the personal experiences that were the subject of his claims were merely examples and did not represent the whole of his claim.

36 The appellant articulated his case on several occasions including the entry interview. It is desirable to refer to each separately:

(a) In his entry interview, the appellant said that his reasons for leaving Iran had two parts. The first was social in that he did not have human rights and had been assaulted by those who are loyal to the spiritual leaders in Iran because he had long hair and wore tight pants and shirts. As a young individual he did not have any right to get a full-time job. He said that only people with (indecipherable but probably source) to the government had rights and, since he did not have source, he had no rights. The second part of his reasons concerned involvement in the demonstration in Abadan about poor water quality. There is no reference, in the record of the entry interview that was before the Tribunal, to any specific political policies or philosophies held by the appellant, except as may be implicit in his appearance at, or his participation in, the demonstration.

(b) A written submission by McPherson & Kelley, lawyers, which accompanied the appellant's application to the Department for a protection visa, contained a detailed response to the question "Why I left my country". That response refers solely to the alleged involvement in the demonstration. The submission said that, in the course of the demonstration, the appellant was hit by a policeman who insulted him and his father. The submission asserted that that made the appellant very upset and he therefore "reversed the insult" to the supreme leader in Iran. The submission said that the appellant feared that, on his return to Iran, he would be arrested because of his "involvement in the demonstrations and because of [his] insult to the Supreme Leader". It said that he believed he would be harmed or mistreated if he went back because he "assisted to organise the demonstrations, my involvement with the demonstrations on the day and because of my insult to the Supreme Leader after I was initially insulted as well as my father". The submission deals only with the demonstration incident. It says nothing about politics or philosophies other than such as might be inferred from his participation in the demonstration.

(c) In the course of an interview with the Minister's delegate, the appellant said that he left Iran because of taking part in the demonstration and organising it and the involvement of one of the police officers hitting him and insulting him. He referred in some detail to his alleged participation in the demonstration. There is no record of his having referred to any political policies and philosophies except such as might be inferred from his participation in the demonstration.

(d) In a submission to the Tribunal by McPherson & Kelley, questions and answers were posed as follows:

"Is the claimed harm or mistreatment on return to Iran of sufficient gravity as to constitute persecution?

The applicant fears that he will be arrested by the security forces because his involvement in the demonstrations and because of his insult to the Supreme Leader. The applicant is unsure what would happen to him but asserts that the security could do anything they wanted with him once in custody. The applicant points out that others who have been in similar situations and arrested by the security are missing.

Is the harm or mistreatment feared by the applicant on return for reason of one or more of the five grounds recognised in the Refugee Convention?

The claims put forward by the applicant are set out in the applicant's statement previously given during immigration processing at the Port Hedland Immigration, Reception and Processing Centre and his interview with an officer of the Department. These statements indicate a well-founded fear of persecution for reasons of political opinion, which is a Convention reason."

In answer to the questions "Is the fear of harm well founded? Is there a real chance of persecution should the applicant be returned to Iran?" the submission contained a detailed account of the alleged involvement in the demonstration. There was no express reference to any political policies or philosophies espoused by the appellant other than those that might be inferred from participation in the demonstration.

(e) On 16 February 2001 the Tribunal wrote to the appellant referring to the claims made in the entry interview that he was of interest to the authorities because of participation in the demonstration. The letter invited the appellant to comment on subsequent assertions made by him, which had not been made at his entry interview. The matters raised by the Tribunal were the failure to mention that he had been involved in distributing pamphlets prior to the demonstration and the omission to mention that he had been hit by a policeman and responded by insulting Iran's leaders. The letter said that "the omission of these claims from your initial statement raises questions regarding their credibility". McPherson and Kelley responded by accepting that discrepancies exist between the information provided at the initial interview and the information set out in the appellant's statement to the Tribunal. Their letter said:

"Our client informs us that he was very tired when he arrived as a result of the arduous boat trip. He stated that he had been put in a room for 12 hours before the initial interview and that he was confused as everything was new and unfamiliar to him. Our client believes his mind was not functioning properly because of those hardships and that, in turn, caused him to omit information from his initial interview."

No reference was made to any political policies or philosophies espoused by the appellant.

(f) In a handwritten communication to the Tribunal written on behalf of the appellant by another asylum seeker, who was unable to give evidence at the hearing before the Tribunal, the following claims were made:

"The movement and demonstration in July 2000 in order to achieve some token rights and to overthrow the Religious-Militarist government of the middle ages occurred in Abadan. There are some reason for necessity of the protest [sic].

...........................

7. However the demonstration is nominated as the greatest Anti-regime movement after the [1979] revolution but due to lack of independent media the reports were mainly fabricated and untruth.

8. The regime claimed that the protest was due to the problem of water and thus confessing and attribute the incident to a particular opposition party the MKO by the regime's media was in order to cover up the crime made by the Basiji and the Ansar-Hezbollah thugs."

The assertion made in the communication is at odds with the express statements made by the appellant that the demonstration about which he made claims was related to water quality. The Tribunal did not refer to that communication in its reasons, although it appears to have been received by the Tribunal before its decision was made.

37 Under s 430(1) of the Act the Tribunal is obliged to prepare a written statement that:

"(a) sets out the decision of the Tribunal on the review; and

(b) sets out the reasons for the decision; and

(c) sets out the findings on any material question of fact; and

(d) refers to the evidence or any other material on which the findings of fact were based."

However, in giving written reasons, the Tribunal is under no legal obligation to deal with every factual contention or argument raised by an applicant. For example, where an applicant makes a written submission to the Tribunal referring to a variety of materials such as newspaper extracts and other material, there is no legal obligation on the Tribunal, in giving its written reasons, to analyse such material and give reasons for not accepting any of it that might be thought inconsistent with the conclusions the Tribunal reached - see Arudselvan v Minister for Immigration & Multicultural Affairs [1999] FCA 1726.

38 The Tribunal believed that the appellant changed his evidence after he applied for a protection visa because he had obtained more information on the demonstration and knew that his initial story was flawed. The Tribunal also referred to the fact that, at the hearing, the appellant claimed that the demonstration was organised by the Mujahadeen, an illegal opposition party based in Iraq. The Tribunal found that the claim that the Mujahadeen had organised the demonstrations was at odds with information in reports that the Tribunal had read, none of which suggested that the Mujahadeen played any part in the demonstration. The claim was also at odds with the appellant's earlier statements that the three groups of people that were involved were:

* those who were protesting about the water;

* trouble makers who robbed shops; and

* informers.

39 The Tribunal did not accept that the appellant distributed leaflets for the Mujahadeen nor that he participated in a demonstration in Abadan in July or August 2000, nor that he was involved in a scuffle with the police during the demonstration during which he insulted Iran's leaders, nor that he was pursued by the authorities because of those alleged events. The Tribunal was therefore not satisfied that the appellant had a well-founded fear of persecution for reasons of political opinion because he participated in the demonstration in Abadan.

40 The Tribunal recorded in its reasons that, at the hearing, the appellant had said that he had long been troubled by the political and human rights situation in Iran but kept his views to himself as to do otherwise would have caused problems for his family. He said that he had never been involved with any political groups or activities until he saw the demonstration developing in Abadan and had decided that he had to join in. The Tribunal's reasons record that the appellant said that he had not come to Australia merely because of the problems associated with the way he dressed and that he had tolerated those problems for many years but that he had never been happy in Iran and wanted to start a new life.

41 The Tribunal was faced with a precisely demarcated claim concerning the appellant's involvement in the demonstration at Abadan together with some question of a claim based upon his personal appearance. The appellant's claim to be at risk of persecution was inseparable from his claim to have participated in the demonstration in Abadan. However, the Tribunal found that he did not participate in that demonstration.

42 The only manifestation of any political policies or philosophies asserted by the appellant was his participation in the demonstration. That was dealt with expressly by the Tribunal and rejected. The Tribunal's finding, involving rejection of the appellant's claims about participating in the demonstration in Abadan, entails rejection of any political opinion that may be inferred merely from participation in such a demonstration. The only case that the Tribunal was called upon to deal with was the claim to have participated in the demonstration. That case was clearly and unequivocally dealt with.

43 The appellant did not, on any of the occasions when it was open to him, advance a case that he had espoused some particular political policies and philosophies that would put him at risk. There was no requirement for the Tribunal to enquire whether there were political policies and philosophies espoused by the appellant that were neither expressed nor articulated in any of his claims. There was no reviewable error by failing to deal with a fear of persecution by reason of unexpressed and unarticulated political policies or philosophies, which were not manifested by the appellant before his departure from Iran.

CONCLUSION

44 The appeal should be dismissed with costs.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson & the Honourable Justice Emmett.

Associate:

Dated: 19 July 2002

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Mr A.A. Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	21 May 2002
Date of Judgment:	19 July 2002