Nozarpour v Minister for Immigration & Multicultural Affairs (inc corrigendum dated 05/09/01) [2001] FCA 1249 (2 August 2001)

Last Updated: 6 September 2001

FEDERAL COURT OF AUSTRALIA

Nozarpour v Minister for Immigration & Multicultural Affairs [2001] FCA 1249

SHAHRAM NOZARPOUR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 66 OF 2001

EMMETT J

2 AUGUST 2001

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 66 OF 2001

BETWEEN:	SHAHRAM NOZARPOUR APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	2 AUGUST 2001
WHERE MADE:	PERTH

CORRIGENDUM

Order 4. should read:

"The applicant file and serve any further submissions on which he wishes to rely no later than 31 August 2001."

I certify that this is a true and correct copy of the corrigendum to the Reasons for Decision of the Honourable Justice Emmett.

Associate:

Dated: 5 September 2001

FEDERAL COURT OF AUSTRALIA

Nozarpour v Minister for Immigration & Multicultural Affairs [2001] FCA 1249

SHAHRAM NOZARPOUR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 66 OF 2001

EMMETT J

2 AUGUST 2001

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 66 OF 2001

BETWEEN:	SHAHRAM NOZARPOUR APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	2 AUGUST 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application be dismissed.

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

3. Orders 1 and 2 be stayed up to and including 7 September 2000 or such later date as the Court may direct.

4. The applicant file and serve any further submissions on which he wishes to rely no later than 2001.

5. The respondent file and serve any written submissions in response no later than 6 September 2001.

6. The matter be listed for directions on 7 September 2001.

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 66 OF 2001

BETWEEN:	SHAHRAM NOZARPOUR APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	2 AUGUST 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

1 The applicant, who is a citizen of Iran, arrived in Australia on 1 November 2000. On 16 November 2000, he lodged an application for a Protection (Class XA) visa with the Department of Immigration and Multicultural Affairs. On 20 December 2000, a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), refused to grant a protection visa. On 21 December 2000, the applicant applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision and on 22 February 2001 the Tribunal affirmed the decision not to grant a protection visa. On 9 March 2001, the applicant filed an application to this Court for an order of review of the Tribunal's decision.

2 The matter was listed for hearing today before me. The applicant is presently being held in detention and the hearing was by video link. The applicant was unrepresented and speaks very little English. However, the applicant was assisted by a Farsi interpreter. The applicant had been assigned legal assistance under the Court's pro bono scheme. However, the barrister assigned under the scheme was given leave to withdraw on 19 July 2001. When the matter was called on for hearing, the applicant sought an adjournment of the hearing.

3 On 12 July 2001, the applicant sent a letter to the Court by facsimile asking that his barrister be informed that the applicant would like to postpone the date of the hearing in order to make further inquiries. On the same day the Court received a communication from the office of Messrs Dominic David Stamfords, solicitors, in Fairfield, New South Wales ("the Solicitors"). It appears that the Solicitors had been consulted by relatives of the applicant in Sydney. The letter sought information concerning the legal representation for the applicant. On 18 July 2001, an officer of the Court spoke to the Solicitors and informed them that the barrister assigned, Mr Graham Rabe, had requested to be taken off the record as pro bono counsel assisting in the matter. There then followed several communications between the Solicitors, the Court and the applicant concerning adjournment of the hearing fixed for today. The applicant informed me that he had spoken to Mr Henry Christie, barrister, about the possibility of representation, but that Mr Christie was unable to assist him.

4 I accept the difficulties that must be involved when the applicant is in detention some considerable distance from Perth. I am not satisfied that this is an appropriate case for adjournment at this stage. However, I am concerned that the applicant was put in a position where counsel assigned to him withdrew, albeit that the withdrawal was in enough time to enable the applicant to obtain alternative representation.

5 Having read the reasons of the Tribunal and the submissions on behalf of the Minister and having heard the applicant's contentions, I have formed a provisional view as to the outcome of the application. I therefore propose to give my reasons for reaching the conclusions that I have reached, but to give the applicant an opportunity to make further submissions if he wishes before I finally dispose of the proceeding.

6 The Tribunal in its reasons summarised the claims made by the applicant in his application for a protection visa. The applicant is a 28 year old male citizen of Iran. He is a Shi'a Muslim who left Iran and arrived in Australia, undocumented, via Pakistan, Malaysia and Indonesia. The Tribunal was satisfied that the applicant is an Iranian citizen. The essence of his claims is that he fears to return to Iran because of his political opinion and his illegal departure.

7 The Tribunal examined the successive versions of the applicant's claims and found that his description of events and motivations for certain actions were not consistent. The Tribunal was not satisfied that the applicant has any political profile or that, if he does have one, it was sufficient to engage the interest of the Iranian authorities. The Tribunal noted that the reasons adduced by the applicant for having come to the attention of the authorities varied from the following:

* being present at demonstrations in Teheran in July 1999,

* being a member of a group called Marz-e Pogohar,

* being associated with a person called Farahaniepour,

* belonging to the Nehzat Azadi, (a claim made by the applicant's advisers), and

* being a writer of leaflets and other material for a university newsletter.

8 The Tribunal found that the intensity of the applicant's involvement increased at each reiteration. The applicant's emphasis on people and institutions grew more specific and he appeared more politically active. The applicant claimed that on 6 September 1999 he was arrested and detained in prison for 11 days. He claimed that he was blindfolded for interrogation. He said that he was then tortured. The applicant claimed that he was released when his brother and his brother's wife provided the authorities with their Janbaz cards as bail.

9 The Tribunal considered that the applicant's account of his arrest and subsequent release contained a number of implausibilities. He was not arrested at the height of the demonstrations, but on 6 September 1999, almost two months after the demonstrations. The Tribunal accepted reports that the authorities were pursuing the leaders of the demonstrations but the applicant said himself that he was not a leader. The Tribunal was of the view that the fact that the applicant's brother was able to bail him out indicated that he was not considered of such interest to the authorities as to warrant continued detention. At the hearing, the applicant stated that he thought he had been released because the authorities wanted him to become an informer. The applicant also said that he was issued with a summons, but he did not know why.

10 At the hearing before the Tribunal, the applicant developed an argument that he was not being sought for his activities in the demonstrations, but because of his association with Farahanipour, the leader of the group called Marz-e Pogohar. The Tribunal had material before it that enabled it to conclude that Farahanipour had fled to the United States. The applicant told the Tribunal that he believed that Farahanipour gave the authorities his name and that that was how he became identified as a member of the Marz-e Pogohar group. The Tribunal considered that that was implausible.

11 Farahanipour himself must also have been released, since he has been able to escape to the United States, and the applicant was released by the authorities. The Tribunal reasoned that if Farahanipour, leader of the Marz-e Pogohar group, was released by the authorities, the release of his followers is consistent with the conclusion that the authorities were not particularly interested in Marz-e Pogohar. The Tribunal concluded that Marz-e Pogohar was an opposition group tolerated by the regime in much the same way as others. The Tribunal accepted that the applicant was involved in the Marz-e Pogohar group and that he was detained as claimed. However, the Tribunal found that the applicant's political profile is not such that would attract the adverse attention of the authorities on return and, therefore, that he does not face a real chance of persecution for reasons of his political opinion.

12 The applicant also claimed that he fears punishment for illegally departing from Iran. The Tribunal considered that illegal departure from a country contravenes the generally applicable laws of the country and does not of itself make a person a Convention refugee. The Tribunal accepted Department of Foreign Affairs and Trade information concerning punishment in Iran for illegal departure. The most likely penalty for an Iranian who has left Iran illegally is a fine. A prison sentence seems to be rarely used, except when the person refuses to pay the fine or in cases where the person's illegal exit was prompted by a wish to evade justice. The Tribunal accepted that the applicant may face some punishment or sanction for his illegal departure but that that would not fall within the ambit of the Convention. The Tribunal found that there is no real chance that the applicant would be persecuted for a Convention reason now, or in the reasonably foreseeable future, should he return to Iran. The Tribunal concluded, therefore, that the applicant does not have a well-founded fear of persecution for a Convention reason and, therefore, did not satisfy the criterion set out in s 36 of the Migration Act 1958 (Cth) ("the Act").

13 In his application to the Court, the applicant refers to two grounds mentioned in s 476(1) of the Act. However, no particulars are given of the grounds. The grounds are those referred to in ss 476(1)(e) and 476(1)(g). There is nothing apparent to me in the reasons of the Tribunal to indicate that the Tribunal incorrectly interpreted the applicable law in its decision. Having regard to the findings of the Tribunal, the only conclusion reasonably open to the Tribunal was that it was not satisfied that the applicant was a person to whom Australia has protection obligations. As a result, the only conclusion open to the Tribunal was that the applicant did not satisfy the criterion in s 36 of the Act. There is nothing in the reasons therefore to suggest that the Tribunal incorrectly applied the applicable law to the facts as found by it. Accordingly the ground in s 476(1)(e) is not made out.

14 The ground in s 476(1)(g) can only be made out in a case such as this where s 476(4)(b) is satisfied. That is to say, the ground that there was no evidence or other material to justify the making of the decision will only be made out if the person who made the decision based the decision on the existence of a particular fact and that fact did not exist. There was clearly an evidentiary basis for the conclusions of the Tribunal. I have summarised the relevant findings above. The first step involved in the application of s 476(1)(g), therefore, was not satisfied - see Ministry of Immigration v Al-Miahi [2001] FCA 744 at [35]. Accordingly I am not persuaded that the ground in s 476(1)(g) has been made out in this case. It follows, in my opinion, on the material presently available to me that the application should be dismissed.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 4 September 2001

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr A A Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 August 2001
Date of Judgment:	2 August 2001