Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1259 (9 May 2001)

Last Updated: 6 September 2001

FEDERAL COURT OF AUSTRALIA

Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1259

HESAM ARIAEE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO S13 OF 2001

O'LOUGHLIN J

ADELAIDE

9 MAY 2001

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S13 OF 2001

BETWEEN:	HESAM ARIAEE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	O'LOUGHLIN J
DATE OF ORDER:	9 MAY 2001
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

The application be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S13 OF 2001

BETWEEN:	HESAM ARIAEE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	O'LOUGHLIN J
DATE:	9 MAY 2001
PLACE:	ADELAIDE

EX TEMPORE REASONS FOR JUDGMENT

1 The applicant arrived in Australia on 28 March 2000. He asked to be treated as a refugee but his application was rejected by the Minister for Immigration ("the Minister") and later on by the Refugee Review Tribunal ("the Tribunal"). He now asks the court to examine the decision of the Tribunal. There is no doubt that the applicant is a Falie Kurd, but there is some doubt about his nationality of citizenship. The Tribunal described him as Iranian on the basis that his father was born in Iran.

2 It is submitted by Ms Maharaj for the Minister that that finding is based on the contents of his application which is at page 15 of the green book. In answer to question 13 someone has typed in that his father's place of birth was Poshte-Kooh. At page 74 of the green book the Minister's delegate has written that Poshte-Kooh is a town in Iran, whereas the Applicant informed me at the hearing that Poshte-Kooh merely means "behind the mountain".

3 I would be prepared to make my decision on an assumption in favour of the applicant that he may not be an Iranian citizen but, unfortunately, I do not think it makes any difference. For the applicant to succeed, he must satisfy me that he is a refugee. The law, as it applies to him and everybody else, defines a refugee, so far as his claims are concerned, as a person who, owing to a well-founded fear of being persecuted because of his Kurdish race, is outside his home country or, if he does not have a home country, is outside the country of his former habitual residence, and he is unwilling to return to that country because of his fear of being persecuted. Whether he is an Iranian or an Iraqi, there is no doubt that he has lived in Iran for the last 30 years and so it is his former habitual residence.

4 I am aware of the difficulties which the Kurdish people suffer, not only in Iran but also in Iraq, Turkey and other countries. But what I must decide today is a question of persecution which is something more severe than discrimination. The applicant, in applying for refugee status, identified many areas where he was unreasonably or unfairly treated because he was a Kurd. He mentioned his rejection by the army, being insulted at school, a failure by the authorities to investigate a car accident, being unfairly exploited by his employer, being detained by the authorities subsequent to his marriage, the difficulties in enrolling his daughter for school, the manner in which his wife was treated in hospital. These are all sad matters for which one would have sympathy for him.

5 But as the Tribunal said in its reasons, these actions may well be discriminatory actions, but they do not amount to persecution. Persecution amounts to a serious violation of human rights and, distressing though his experiences may have been, the Tribunal was correct in my opinion when it came to the conclusion that the discriminatory conduct was not so serious a violation of human rights as to constitute persecution. The applicant said at one stage that if he is forced to return to Iran it would be discovered that he had left illegally and he would be considered to have committed a crime.

6 The Tribunal discussed this matter in its reasons. It had obtained information on the subject from the Australian Department of Foreign Affairs and Trade. The information that the Tribunal obtained indicated that the most likely penalty for illegal departure was a fine. Gaol was rarely used as a punishment and was mostly used where the illegal departure was prompted by a wish to evade justice. There is no suggestion that the applicant left the country to evade justice. I have therefore come to the conclusion that the Tribunal was correct when it said that there is not a real chance that the applicant would face persecution for illegal departure should he return to Iran. His application must therefore be dismissed, with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin.

Associate:

Dated: 9 May 2001

The Applicant appeared in person:
Counsel for the Respondent:	Ms Sashi Maharaj
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	9 May 2001
Date of Judgment:	9 May 2001