Applicant "B" v Minister for Immigration & Multicultural Affairs [2001] FCA 339 (30 March 2001)

Last Updated: 30 March 2001

FEDERAL COURT OF AUSTRALIA

Applicant "B" v Minister for Immigration & Multicultural Affairs [2001] FCA 339

MIGRATION - review of decision by Refugee Review Tribunal affirming respondent's refusal to grant protection visa - whether Tribunal erred in law - no reviewable error - application dismissed.

Migration Act 1958 (Cth), ss 430(1)(c), 430(1)(d), 476(1)(a), 476(1) (e)

Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845; (2000) 98 FCR 469 applied

APPLICANT "B" V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 180 of 2000

CARR J

30 MARCH 2001

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 180 OF 2000

BETWEEN:	APPLICANT "B" Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	CARR J
DATE OF ORDER:	30 MARCH 2001
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	W 180 OF 2000

BETWEEN:	APPLICANT "B" Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	CARR J
DATE:	30 MARCH 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

INTRODUCTION

1 This is an application for review of a decision of the Refugee Review Tribunal, made on 10 October 2000, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant. The applicant, who is a citizen of Iran, arrived in Australia without a visa on 11 May 2000. On 20 June 2000 the applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 10 August 2000 a delegate of the respondent refused to grant him a protection visa. On 11 August 2000 the applicant sought review of the delegate's decision by the Refugee Review Tribunal.

THE APPLICANT'S CLAIMS AND THE TRIBUNAL'S DECISION

2 The applicant's claims to refugee status are summarised and the Tribunal's findings are set out at pp 4-15 of its reasons for decision dated 10 October 2000. I set out below some edited portions of those pages. The editing comprises substituting "Applicant B" for the applicant's name, and certain deletions. The deletions include about 4 pages of extracts from country information reports, the name of two other persons, and some references to case law.

CLAIMS AND EVIDENCE

The Tribunal has before it the Department's file, which includes a record of interview with an immigration inspector on arrival, Applicant B's protection visa application, written submissions in support of the application, and record of interview with an officer of the Department. Applicant B also gave oral evidence to the Tribunal on 28 September 2000 .

Applicant B is a citizen of Iran. He was born in Tehran and is aged 29. His wife and two children remain in Iran, as do his parents and two sisters.

Applicant B claimed that he feared being arrested, tortured and executed if he returned to Iran because of his political beliefs. His reasons were as follows:

In Iran he had bought, sold and installed satellite dishes over a period of 18 months. The type of receivers and transmitters he distributed were being imported illegally by two people in Iran. The satellite dishes were being built illegally in Iran. This was an illegal trade, because the types of programmes which could be received by satellite included material which had the potential to distract Iranians from Islamic culture and to Westernise them. It also enabled opponents of the government to have access to uncensored news from all over the world. This was sometimes news that the government did not want the public to know.

The punishment for involvement in his type of business was very harsh, because the type of equipment in which he dealt was powerful and could connect with 110 channels throughout the world.

Applicant B believed that people could watch what they wanted to, and that the media played an educational role. Many educated people bought his equipment.

Applicant B was involved in this business until December 1999. One night police, Basij and Komiteh were checking cars. They made him open the boot of his car and found his equipment. He was arrested and taken to the Ministry of Information, where he was detained for three months. During this period he was questioned as to where he had bought the equipment, who imported it, how many people were involved in the business, who ordered the installations and who were his customers. Applicant B was deprived of sleep, beaten up and given smaller amounts of food. He was subjected to increasingly harsh treatment as it became apparent that he was unwilling to provide this information.

The authorities "really wanted to get the two importers". One of them was a Sepah officer on unpaid leave named [name deleted], but Applicant B did not reveal his name.

After three months he was tried in a morals court run by the Sepah. The judge did not ask him any questions or look at him, but said "I will skin you". According to Applicant B's written claims he ordered that Applicant B pay a fine of $2,000 and face two years in prison. (In oral evidence to the Tribunal Applicant B claimed that in fact no clear order was given. See below).

A few days later [name deleted], grateful that Applicant B had not revealed his identity, sent a message to Applicant B that he would try to help him. He advised him to lodge an appeal against the sentence. Applicant B did so. The guard allowed Applicant B to escape en route to the court, and told him his name would not be on the blacklist at the airport. Applicant B assumes that [name deleted] had bribed him to do this.

Applicant B and his family immediately went into hiding at his wife's father's house, which was in a small village outside Tehran.

Applicant B decided to leave Iran because he feared he would be found eventually. He had heard that a smuggler could be found in Kuala Lumpur. He bought a ticket to Kuala Lumpur and left Iran through the airport without difficulty.

In a submission to this Tribunal from his solicitor (26 September 2000) it was argued that Applicant B's activities in disseminating satellite equipment were unpaid and that he became involved in the hope of educating the public and raising their awareness of freedom of speech and expression. It was argued that, although he was charged with contravening a law of general application, he had been imputed with a political opinion against the Islamic State of Iran because of activities going against Islamic ideology.

It was argued that Applicant B's departure, the circumstances surrounding it, and his application for refugee status in Australia, were likely to attract suspicion to him on return and to lead to persecution because of his political opinion.

The Tribunal hearing

At the hearing I asked Applicant B if his statement to the Department was accurate. He responded that it was.

I asked him how he had come to start selling satellite dishes. He responded that he enjoyed technician work since childhood, and had studied electronics. He had started installing satellite dishes about two years ago. It was not illegal to install them in government offices or academic institutions, and he had done this openly and legally, for a standard fee, during the day during the past two years. [Name deleted] had bought them legally, and bought extra for the black market. Thus Applicant B had also installed the equipment at night, for relatives and other people who did not have official permission to have it. He charged his relatives little, but charged strangers the set fee.

For his income he had also done repairs, and bought and sold sound systems and televisions. This was all legal. I asked him if the illegal work was not risky. He responded that it was, although he had thought little about it. It was his profession and he enjoyed it. He wanted to also give people what they wanted, so they could watch a variety of programmes, covering everything from music and Farsi programmes to programmes about politics. He did not think there was any harm in doing it.

I asked him if he was the only one who installed equipment illegally. He responded that he had done it with his friend [name deleted], another technician. [Name deleted] had been with him in the car on the night the basij had caught him. [Name deleted] was held for a few days but was released. I asked him why. He stated that the basij who stopped the car did not like his (Applicant B's) family. Also the equipment was in his car, and that he had taken responsibility for its being there.

I asked him what the basij had known of his family. He said that there were many hezbollah people living in their part of Tehran. They did not much like his family because his father had worked in the Shah's palace (as a servant) before the Revolution, his mother did not wear "good hejab" and his family was "not very religious". The local basiji who stopped his car had recognised him.

I asked him if he knew of other people who had been detained and charged for selling satellite dishes and, if so, whether their treatment had been similar to his own. He responded that there was "chaos in the law" in Iran. Some people were arrested and released, some were not arrested. It depended on the individual situation. I asked him why he thought the Iranian authorities treated people dealing in satellite dishes so harshly. He responded only that the authorities let people go if they thought they were using them to watch music and comedy, but they interrogated them if they thought they were watching political programmes.

I asked him what he was questioned about during his three months in detention. He responded that they asked where he had obtained the equipment, for whom it was intended, and for whom he had installed such equipment illegally in the past. He did not reveal [name deleted] name.

I asked him if he ever had other periods of detention. He stated that he had sold videotapes in the past, and several years ago had been caught with two which had music and dance on them, interspersed with political comedy. He had been beaten, detained for 15 days, and had to pay a fine. The authorities had never realised that there was any political material on the tapes. His shop was closed down for a few months, then he was able to re-open it.

I asked him if he knew what the charge was of which he had apparently been found guilty by the court. He responded that he did not. After he was sentenced he was just asked again about the source of the equipment. One pasdar told him as they left the court that he would get two years in prison, another said ten years.

I asked him how long after his escape from the prison guard had he left Iran. He said that it was 48 hours.

I asked him to comment on evidence from DFAT that it is highly unlikely that he would have been able to leave Iran via the international airport if he was wanted by the authorities, even if a bribe had been paid. I also put to him that it also seemed unlikely that his name could have been kept off the blacklist at the airport for so long, given that he was a convicted person who had escaped from custody. He responded that he had little knowledge of this. He had left with his own passport, which he had given to the smuggler in Indonesia. He had had to trust that [name deleted] had got his name off the airport blacklist, and he thought only major criminals were ever on it. He thought that [name deleted] was an important officer, but he did not know his rank. He knew that [name deleted] wanted to stop Applicant B from giving his name to the authorities, as he would then be in serious trouble too.

I asked him if he had any reason to think that the Iranian authorities would know that he had applied for a protection visa, as had been stated by his solicitor. He responded that he was not educated and did not know what was in the solicitor's submission.

FINDINGS AND REASONS

Because an applicant must show that the persecution feared is for a Convention reason, it is not enough to establish a well-founded fear of generalised human rights abuses, infringement of fundamental human rights, or enforcement of laws of general application. Convention protection will not normally be attracted where the harm feared, no matter how serious, amounts to an indiscriminate or non-selective infringement of human rights.

. . .

However the principle that laws of general application fall outside the scope of the Convention is a qualified one. If a law of general application is enforced selectively, or is enacted for a selective purpose, and such selectivity can be attributed to a Convention purpose then this would be within the scope of the Convention. The High Court in Chen Shi Hai v MIMA confirmed that "laws or policies which target or apply only to a particular section of the population are not properly described as laws or policies of general application". (Chen Shi Hai v MIMA [2000] HCA 19; (2000) 170 ALR 553 per Gleeson CJ, Gaudron, Gummow & Hayne JJ, at 558. See also per Kirby J at 571).

Applicant B claims to fear being detained, tortured and executed because of his political beliefs if he returns to Iran. Such treatment can be characterised as Convention-related persecution. If his fear were well-founded, he would be entitled to protection under the Refugees Convention.

However, for the reasons set out below, I am not satisfied that that fear is well-founded.

I accept that Applicant B was initially detained, at least in part, because local members of the security forces disliked him. They did not regard him as a good Muslim or supporter of the 1979 Revolution.

I accept that he was taken before a court. Although his evidence as to the charge and sentence is vague, I accept that he was found guilty of a crime relating to selling or installing satellite dish equipment in circumstances where official permission had not been given to him or the recipients.

There is no evidence before the Tribunal from him that the Court had any knowledge or interest in his political or religious views. The Judge made no reference to his political views. I am not satisfied that the law was interpreted in a discriminatory manner because of a political opinion imputed to Applicant B by the Court. Nor is there any evidence from independent sources that fines or prison terms are imposed on individuals dealing illegally in satellite dishes because of a political or religious view imputed to them. I am not satisfied that they are.

I accept that Applicant B holds a general belief that it was beneficial to his fellow citizens to have access to the choice of information they received by using satellite television. However I do not accept Applicant B's solicitor's submission that he disseminated satellite equipment without pay and that he was motivated to play this role because of a political opinion held by him. Applicant B gave clear oral evidence that he was paid to do the work in every instance (albeit on a scale of fees), that part of it was done openly and legally, and that he did it mainly because he enjoyed this type of work as a technician.

The penalty Applicant B faced was, he understood from his guards, a fine and a period of years in prison. He gave oral evidence that he was not formally advised of the actual sentence by anyone (his guards appear to have been speculating about the sentence) and the Tribunal does not have sufficient evidence before it to make a finding as to the sentence. However I accept that he escaped from his guards en route to an appeal hearing of his case.

I am of the view that, if he faces a penalty on return, it will arise from his escaping from custody, and the matter relating to his dealing in illegal satellite equipment.

It is not implausible that his father has been detained and questioned as to his whereabouts. However, the fact that this occurred does not indicate anything more than that the authorities want to locate Applicant B. I accept that Applicant B's trial was clearly unfair, as he was not given any opportunity to know the specific charge against him, to have legal representation or to know the reasons for the finding of guilt or the penalty, and that the penalty for dealing in satellite equipment is harsh. However that treatment, and the treatment which he may face on return to Iran, in my view was not, and would not be, motivated by a Convention reason. The penalty to which he understood he was subject was not imposed in a discriminatory manner. The treatment reflects a failure to adhere to basic standards of human rights as enumerated in the International Covenant on Civil and Political Rights. That treatment arises from a law of general application.

I have considered whether his escape from custody might lead to a political opinion being imputed to him. I consider the chance remote that it would. There is nothing in the evidence before me which might bear out this claim. As I am not satisfied that the penalty imposed by the Court in the past was harsher than it would otherwise have been because of a political opinion imputed to him, I cannot be satisfied that any future penalty for escaping from custody would be harsher because of a political opinion imputed to him.

Of the claim made by Applicant B's solicitor that his application for refugee status would be likely to attract suspicion to him on return to Iran, I do not accept that the Iranian authorities will know that he made such an application. Applicant B himself did not make this claim during the hearing.

I have considered whether there is a real chance that a dissident political opinion might be imputed to him for any reason if he returns to Iran for any reason. I find that there is not.

I am satisfied, and so find, that the harm feared by Applicant B is not motivated by any of the reason enumerated in the Refugees Convention. Therefore his fear of Convention-based persecution is not well-founded.

CONCLUSION

Having considered the evidence as a whole, the Tribunal is not satisfied that Applicant B is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore he does not satisfy the criterion set out in s.36(2) of the Act for a protection visa."

APPLICATION FOR REVIEW

3 The applicant was represented, on a pro bono publico basis, by Ms S A Gaunt, a barrister and solicitor. There were seven grounds in the re-amended application for review. I shall set them out sequentially in full and give my reasoning in relation to each ground.

Ground 1: "The RRT erred in applying the law to the facts in that it put emphasis on the sale of satellite dishes in Iran as a breach of a general law of Iran but failed to explore and understand the implications of the demands accompanied by torture made of the applicant to provide lists of names of persons for whom he had installed satellite dishes. Contrary to s 476(e) of the Migration Act 1958"

4 In written submissions the applicant contended that the Tribunal had ignored evidence that although his detention was "on one level" for the illegal sale of satellite dishes, on another level it was a determined effort to obtain lists of customers' names and addresses for the purpose of further political investigation. Although the Tribunal had stated that the authorities "really wanted to get the two importers", in fact, so it was put, the authorities wanted the names of every person for whom the applicant installed a dish and who was therefore accessing foreign, uncensored, information thus making them enemies of the Government. The issue of the applicant being tortured to inform was, so it was contended, "touched on but inadequately addressed". The applicant submitted that the two issues intertwined to make him a source of interest to the authorities. The Tribunal had, so it was submitted, erroneously reduced this to a single issue and in doing so had made an error of law.

MY REASONING

5 In my view, this ground does not disclose any error or law on the Tribunal's part. The question for the Tribunal was not whether the Iranian authorities wanted to conduct political investigation of the applicant's customers. I think that a fair reading of the Tribunal's reasons is that it accepted his account of what happened to him after he was arrested by the Iranian authorities. It accepted that he was taken before a court, that the trial was clearly unfair and that the penalty in Iran for dealing in satellite equipment was harsh. In fact the reference to the authorities having "really wanted to get the two importers" was a quotation from the applicant's own statement [see p 42 of Exhibit A1]. Although the Tribunal, when setting out its findings, made no reference to the applicant being tortured to disclose the names of his customers, those claims were set out earlier in the reasons, the Tribunal made no credibility finding against the applicant on that point and I think it was implicit that the Tribunal accepted that the applicant had been tortured to reveal the names of his customers. The question was whether they tortured him because of his political opinion. On the facts, the Tribunal found that what was done to him after his arrest was not because of any political opinion imputed to him. It was open to the Tribunal to make such a finding and it did not, in my view, err in law when it did so. Counsel for the applicant said that there was more to the matter of the sale of the satellite dishes than a mere breach of a law of general application. The applicant, so it was submitted, was part of the network that provided the satellite industry to the people who could be opponents of the regime. The Tribunal had looked at the matter of the sale of illegal satellite dishes in what counsel described as "... a fairly mundane naïve sort of manner, almost as ... if he were selling potatoes and ... it was against the law to sell potatoes in a particular country." Once again, a fair reading of the Tribunal's reasons shows that it was well aware of the sensitivity to the Iranian authorities of the matter of the supply and use of satellite dishes. The applicant, by this ground is seeking to re-visit the merits of his case before the Tribunal.

Ground 2: "The RRT made an error of law in that it did not accept the following evidence as amounting to a "well-founded fear of being persecuted" should the applicant return to Iran; viz, hasty flight from Tehran, rapid exit from Iran, detention and abuse from those in authority, knowledge of the detention of the applicant's father in custody. Contrary to s 476(e) of the Migration Act 1958".

6 The applicant submitted that the treatment of him in Iran, torture, interrogation, his rapid flight and unwanted desertion of his wife and children all suggested a flight motivated by fear of torture and death. His store had been seized, his family was hiding in a remote part of Iran and he believed his father to be in detention. The applicant contended that he had good reason to believe that he could just "disappear" if returned to Iran.

MY REASONING

7 As the opening words of this ground suggest, it amounts to an invitation to the Court to review the merits of the Tribunal's decision. The applicant seeks to raise a series of factual matters. I accept the respondent's submission that these matters do not require that, as a matter of law, the Tribunal was bound to find that the applicant had a well-founded fear of persecution for a Convention reason.

8 In my view, this ground is not made out.

Ground 3: "The RRT made an error in applying the facts to the law in that the Tribunal did not consider the effect on the applicant in relation to "a well-founded fear of persecution" by the applicant being baptised in Australia as a Christian and facing persecution on this ground on his return to Iran.

Contrary to s 476(e) of the Migration Act 1958".

9 The applicant sought to rely on affidavit evidence to the effect that he was baptised as a Christian on 18 February 2001 at Port Hedland by a Minister of the Uniting Church. Upon objection being made to the admission of that evidence, I ruled that it was inadmissible because the baptism referred to occurred after (more than four months after) the Tribunal made its decision and was not a matter foreshadowed in the applicant's claims.

10 In the written submissions filed on the applicant's behalf he claimed that his interest in Christianity pre-dated his arrival in Australia. If returned to Iran he would, as an apostate run the danger of being killed.

MY REASONING

11 The applicant did not make any claims to have a well-founded fear of persecution because of his religion in his application for a protection visa. There was no mention of such a claim in subsequent submissions to the Tribunal which were prepared by the applicant's legal advisers and he made no such claims in his oral evidence to the Tribunal.

12 The applicant relies upon s 476(1)(e) of the Migration Act 1958 (Cth) ("the Act") for this ground (and, indeed, for the other six grounds).

13 To succeed under that sub-paragraph the applicant must show that the decision involved an error of law, being either an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal. The applicant has been unable to point to an incorrect interpretation of the applicable law on the Tribunal's part. As to the second limb of s 476(1)(e), on the facts as found by the Tribunal. there has not, in my opinion, been shown to be any incorrect application of the law to those facts. This ground is also not made out.

Ground 4 (as re-amended at the hearing): "The RRT erred in that it did not follow the correct procedure required by the Act or the regulations thereunder in that it did not set out its findings on material facts as to the evidence that the applicant's family had been supporters of the Shah of Iran.

Contrary to s 476(e), s 430(1)(c), s 476(1)(a) of the Migration Act.

14 At the hearing of the application in this Court the applicant claimed that as supporters of the regime of the former Shah of Iran he and his family were members of a "broad social group" which attracted persecution from the authorities and that the Tribunal had erred in the manner referred to above. At that stage, this complaint did not fall within any of the grounds of application. The applicant was given leave to re-amend Ground 4 into the above form. He was also granted leave to file transcripts of excerpts from the tapes of the proceedings before the Tribunal, and to make further written submissions. I set out below all of those excerpts as prepared and filed by the applicant's counsel. (I have numbered the paragraphs to facilitate the references to them which I make below):

"TAPE 1 SIDE 2

1. The applicant: Because we were living in the down part of the city there were a lot of religious people living in that area. A lot of them worked in government departments and government organisations. My father used to work in the palace, the Shah's palace. Before and after in the early years of revolution he didn't sign the um they had to sign something saying I am sorry that he was doing this something like that and he did not sign that. My mother used to work in an office and she was sacked from that office and they didn't cover themselves very well. They weren't very religious, we wouldn't go to the mosque and to the funerals and the events and religious functions that were happening there. Things like that. They didn't like us and they wouldn't treat us very nicely.

RRT Tribunal member: And when they picked you up these particular basijis they recognised you did they?

2. The applicant: Yes they were the local basijis. In Iran in each area there is a local basijis and usually New Year or some celebration somebody's birthday, the prophets' birthdays they put extra guards to search cars that to see that everybody is doing the right thing. That particular night was Christmas. So when they searched the car they saw me.

RRT Tribunal member: Do you know anyone else who was charged with selling satellite dishes?

TAPE 3 Side 2

RRT Tribunal member: Did your father tell you anything the authorities said to him about you?

3. The applicant: I had a card that I could speak for six minutes and I could manage only to ask everybody How is my wife how are my children and how is everybody. They told me that he was (my father) was taken and that he was interrogated and that he was badly treated and because he (my father) was working before in the palace and was sacked and things like that it is quite possible that he had a lot other bad things done to him and they just didn't want to tell me. They just didn't want to tell me so that I wouldn't get upset.

4. The things that I should have said I think I have said until now what happened the history of my life from the beginning from the early years of the revolution because my father did not sign the sign the promise he was in trouble and my mother because she did not do the religious things that she was required to do in his office. She was sacked from her job and other things and they made hell of our lives and I've always tried to fight in a way but because I don't have enough education as I said I never joined any political groups as I could not do anything as I am not educated. This was my way of fighting (selling the satellite dishes).

TAPE 1 side 2

5. The applicant: I never used to go to the mosque and they knew I wasn't praying and my father had worked in the palace and my mother was sacked from her job years ago and they had this in the background this thing of me in their mind and they had this hatred even to do with me.

6. I was only a child. They were just didn't like my family and my background. They were just trying to give us a hard time.

RRT Tribunal member: You haven't mentioned your family background why not?

7. The applicant: Previously there wasn't talks about this because they were asking me questions and the answers I was giving useful short answers and none of these questions would fit these answers. Nobody asked me about my background what problems my family has had or what happened in the past -- never a chance to talk to anyone about family (matters).

RRT Tribunal member: You said your father worked at the palace under the Shah, What was his job there?

8. The applicant: He was a servant in the palace and because he was he was in the parliament also he would paint the buildings and doors he was working in the parliament at the time and when he had nothing else to do he was a servant.

He would provide services he was a servant and he would paint doors or walls of the parliament fences or bargaining because he was a servant he would do things like that.

RRT Tribunal member: So he was working in the palace or the parliament?

9. The applicant: He was a servant in the palace and he would paint and he would do the painting or the gardening work at the parliament.

RRT Tribunal member: You said your mother was sacked from her job what was her job?

10. The applicant: She was working in the Paris Electrics in Tehran electrical store. They were making television sets. She was providing services also I'm not sure.

RRT Tribunal member: Was this a private firm that she was working for?

11. The applicant: It was a government job where this company Paris Electric is a government department making televisions under her supervision.

RRT Tribunal member: Was she sacked immediately after the Revolution?

12. The applicant: Yes after my father was sacked it was only a few years until my mother was sacked too. Before the revolution Paris Electric was private after the revolution it was taken over by the government. My mother was sacked three to four years after the revolution.

RRT Tribunal member: Was this for a political reason or some other reason?

13. The applicant: It was because my family they still like the Shah. They wouldn't follow the religious bits that well and also because my father was working in the palace and he was sacked because he wouldn't sign the bit of paper and he was sacked so they just sacked my Mum and said because she wasn't wearing proper clothing by covering herself properly and she wasn't doing things according to the religious rules and regulations they sacked her and she lost her job.

14. Mother never got a job again, for a while my father was painting and selling second hand goods.

15. They always hated us and they were always hostile to us ..... I had to leave school. Small tent in yard basjenjiis came ... took my father for questioning, destroyed setups I had I was only a child it was because they hated us and our background that they were trying to give us a hard time."

15 In the supplementary written submissions the applicant contended that the Tribunal's reasons should have included, as findings on material questions of fact, the fact that the applicant had been forced to leave school as his family was out of favour with the new regime, and that the applicant's father had refused to sign a promise of allegiance to the new regime.

16 It was submitted on the applicant's behalf that the Tribunal had failed to "... set out findings or conclusions in relation to the issue of whether the applicant was part of an identifiable discriminated-against social group, namely former supporters of the Shah" membership of which would give rise to a well-founded fear of persecution on return to Iran. The Tribunal was, so it was submitted, preoccupied with the illegal sale of satellite dishes.

MY REASONING

17 Obviously, in the context of Iran, membership of a particular social group (comprising either his family or a wider group) identified as supporters of the former Shah or imputed with his political views would be of considerable potential to form the basis for a claim to refugee status.

18 The applicant, at his initial interview, did not make any claim that he feared persecution either because of imputed political opinion or as a member of a particular social group as a result of his family having been supporters of the Shah of Iran. Nor did he do so in the statement accompanying his application for a protection visa. Furthermore, in his written submissions to the Tribunal (which were prepared by a solicitor) there were no such claims. Accordingly it is necessary to focus on the evidence forming the excerpts above to assess whether the applicant had made these claims to the extent that the Tribunal was required to make a finding of fact as to whether the applicant's family had been supporters of the Shah of Iran. That would be the case either if its reasoning process required a decision on such a question of fact in order to complete the logical chain adopted by it as the basis for its decision, or if the applicant had proposed facts as material and the Tribunal's ultimate conclusion depended upon or required a finding on those facts, or if the decision, in the practical circumstances of the case, turned upon whether such a fact existed: Minister for Immigration and Multicultural Affairs v Singh (2000) FCR 469 at paras 55-57.

19 The question is whether the applicant's evidence amounted to claims of a real chance of persecution for either of the Convention reasons referred to in paragraph 17 above?

20 Paragraphs numbered 1 and 2 of the above excerpts can be seen to relate to the circumstances which gave rise to his arrest and subsequent conviction on criminal charges. The applicant was explaining how it was that his car (in which the satellite dish equipment was being transported) came to the notice of the Basiji.

21 Paragraph numbered 3 appears to relate to a telephone call made by the applicant since his departure from Iran. It includes a degree of speculation on the applicant's part about what further maltreatment may have been suffered by his father and for what reason. Even taken at its highest, I do not think this can be characterised as a claim on the applicant's part to a real chance that he would be persecuted for membership of the group referred to above if returned to Iran.

22 Paragraph numbered 4 might appear to have come closer to raising such claims. However, apart from the reference to "... they made hell of our lives ...", which appears in the context of what happened to the applicant's parents, there are no specific or even general claims of recent persecutory acts or the anticipation of further such acts in the reasonably foreseeable future if the applicant were returned to Iran. In my view, the same applies to paragraphs numbered 5 to 15 (inclusive), a lot of which is repetitive.

23 In my opinion, the evidence does not show that the applicant claimed to have a well-founded fear of persecution by reason of membership of a group comprising supporters of the former Shah of Iran or by reasons of imputed political opinion through membership of such a group. His claim to an imputed political profile was based on the illegal sale of satellite equipment. In those circumstances, the question whether the applicant was a member of that social group or would be imputed with the political opinions of the former Shah by reason of such membership were not material facts which the Tribunal was obliged to set out in his reasons.

Ground 4A: "The RRT erred in that it did not follow the correct procedure required by the Act or the regulations thereunder in that it failed to prepare a written statement referring to the evidence or any other material on which the findings of fact were based in relation to the applicant's family having been supporters of the Shah of Iran.

Contrary to ss 476(1)(a), 430(1)(c) and 430(1)(d) of the Migration Act."

24 In his further written submissions the applicant contended that the Tribunal had not complied with s 430(1)(d) because it had not addressed "other material" before it in giving its reasons and decisions and had either edited or deleted relevant information on his family background, or had failed to consider that material in its reasoning.

MY REASONING

25 In my view, the Tribunal complied with s 430(1)(c) and (d). It prepared a written statement that set out its decision, its reasons for decision, its findings on material questions of fact and which referred to the evidence or any other material on which the findings of fact were based. The applicant's real complaint under this ground is that the Tribunal did not make a finding of fact as to whether the applicant's family had been supporters of the former Shah of Iran. The obligation under s 430(1)(d) of the Act is to refer to the evidence or any other material on which the Tribunal's findings of fact were based. There were no findings of fact as to whether the applicant's family had been supporters of the Shah of Iran. Nor, for the reasons which I have set out above, do I consider that such findings were required.

26 As I have held that Ground 4 is not made out, Ground 4A cannot be made out.

Ground 5: "The RRT erred in an application of the law to the facts in not finding that the satellite installation business was more than an economic enterprise but was a political activity in opposition to the Government.

Contrary to s 476(1)(e)"

27 In his written submissions the applicant contended that his statements to the Tribunal that he was making a political statement in the sale and installation of his satellite dishes had been "largely ignored" by the Tribunal. He said that he took risks for his customers, often installing dishes at night and often charging only for the cost of materials. These points, so it was put, suggested that he undertook this endeavour as more than an economic exercise. He was not a high-profile party member, politician, radical or student but a self-educated intelligent man.

MY REASONING

28 There is no substance in this ground. The Tribunal can be seen (at p 14 of its reasons) to have considered and rejected the applicant's solicitor's submission that the applicant disseminated satellite equipment without pay and was motivated to do so because of a political opinion held by him. By this ground the applicant is seeking, once again, to invite the Court to engage in merits review. All of these factual matters are, of course, matters for the Tribunal, not this Court, to decide.

Ground 6: "The RRT erred in that it did not investigate material questions of fact such as whether the applicant had engaged in activities such as the distribution of political pamphlets.

Contrary to s 430, s 476(1)(e)"

29 As the respondent submitted, the applicant at no stage prior to the Tribunal's decision made any claim to have a well-founded fear of persecution for political reasons on the basis that he had engaged in the activity of distributing political pamphlets. This evidence was first contained in the applicant's affidavit sworn 6 February 2001 which the applicant sought to tender at the trial but which I ruled was inadmissible. There was no suggestion that there was reasonably-available evidence which the Tribunal could have obtained, but had failed to obtain. To some extent this ground overlaps with Ground 1 and suffers from the same defects as that ground.

CONCLUSION

30 For the foregoing reasons the application will be dismissed with costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr.

A/g Associate:

Dated: 30 March 2001

Counsel for the Applicant:	Ms S A Gaunt
Solicitor for the Applicant:	Ms Sally Gaunt
Counsel for the Respondent:	Mr P R Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 March 2001, further written submissions filed on 20 March 2001 and 23 March 2001
Date of Judgment:	30 March 2001