W452 v Minister for Immigration & Multicultural Affairs [2002] FCA 77 (8 February 2002)

Last Updated: 11 February 2002

FEDERAL COURT OF AUSTRALIA

W452 v Minister for Immigration & Multicultural Affairs [2002] FCA 77

MIGRATION - judicial review - refugee - no reviewable error - no question of principle

W452 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W452 OF 2001

FRENCH J

8 FEBRUARY 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W452 OF 2001

BETWEEN:	W452 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTITCULTURAL AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	8 FEBRUARY 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The Applicant pay the Respondent's costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W452 OF 2001

BETWEEN:	W452 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTITCULTURAL AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	8 FEBRUARY 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1 The applicant is an Iranian citizen of Arab ethnicity who arrived in Australia by boat without lawful authority in November 2000. On 12 February 2001, he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. That application was refused by a delegate of the Minister on 9 April 2001. On 10 April 2001, the applicant applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision. On 17 September 2001, the Tribunal affirmed the decision not to grant a protection visa. On 24 September 2001, the applicant lodged an application in this Court for review of the decision of the Tribunal.

Evidence before the Tribunal

2 The Tribunal's reasons for decision record that it had before it the departmental file including a record of interview with an immigration inspector on the applicant's arrival in Australia, his protection visa application and written submissions in support of that application, and a taped record of interview with an officer of the department on 5 March 2001. There was also a supplementary written statement from the applicant and written submissions given to the Tribunal after the oral hearing. The applicant also gave oral evidence to the Tribunal at that hearing. It is convenient for present purposes to refer to the salient features of the applicant's story emerging from those materials as recorded in the Tribunal's reasons.

3 The applicant referred generally, in his statement to the Tribunal, to the hopes of Arabs living in the Khozestan region of Iran that it would become an independent Arabic country. Khozestani Arabs, he said, suffer deprivation within Iran. They are not provided with fundamental facilities. They cannot advance in the employment of government and there is discrimination against them. There are evidently significant oil reserves in the Khozestan region and there had been promises from the Iranian government that Arabs in the area would get the benefit from money from oil which really belonged to their lands. The applicant said however that these promises were never fulfilled.

4 The applicant's family are Arab living in the rural part of Khozestan. They depend on agriculture for their living. They inherited four hectares of land from his paternal grandfather. This was their sole source of income. In 1998/99 two hectares of the land were acquired by the Iranian National Oil Company. As a result the applicant's family prepared a complaint which was sent to the office of a local or regional administrator, known as the Office of the Governor-General. They received no reply and requested a meeting. The applicant and his father explained their concerns to the Governor-General at that meeting. He told them he could do nothing for them, that they had no rights and that their lands "should be handed back to the regime". The applicant pointed out that they held the deed to the land. His father told the Governor-General that their rights were being trampled on. The Governor-General became very angry and pushed the applicant's father out of his office and insulted him. The applicant also became angry and ended up assaulting the Governor-General. Security officers were called. The applicant was struck in the face with a gun and knocked unconscious. He woke up in hospital and after treatment he was arrested and gaoled from 30 December 1998 to 1 February 2000. During this time his father suffered a stroke which left him paralysed.

5 According to the applicant, following his release from gaol he went back to work on the remaining two hectares of the family's land. The State oil company however then sent them correspondence seeking to acquire the remaining two hectares. The applicant and one of his brothers promised themselves they would not allow the company to take the remaining land from them. The company brought earthmoving vehicles in to commence levelling the land. The applicant and his brother, who were working on the land at the time, argued with the oil company's security guards who would not listen to them. The applicant said that he then obtained a hunting gun and started firing shots into the air. The guards and drivers were frightened and moved away in their light vehicles. They started to burn the heavy vehicles and then ran back home. That night security forces came to their home and started firing into the air. The applicant's oldest brother began firing with his hunting gun. One of the brothers was shot and the applicant said he became very worried and fearful because he realised the situation was getting out of control. He fled to his uncle's house and explained the situation to him. His uncle went back to the applicant's home and then returned and told him that one of his brothers had been killed and the other was seriously injured and had been taken to hospital. The applicant said his family agreed that if he were captured he would be executed as an enemy of the regime who had attacked security forces. The best he could expect would be a lashing and a lengthy gaol term. He had to escape the vengeance of the security forces and flee the country.

6 According to the applicant he left Iran with the assistance of his uncle who arranged his passport and his exit from Mehrabad airport. When he contacted his uncle from Indonesia he was told that his brother who had been shot and injured had been discharged from hospital but had been sentenced to twenty years in gaol as a political opponent of the regime. His brother had been spared the death sentence as he had the help of a lawyer and all blame for the incidents had been put onto the applicant.

7 In his submission to the Tribunal the applicant said that all their attempts to recover their lands from the State oil company had failed. The acquisition of the further remaining two hectares had destroyed his life and that of his family "completely".

The Tribunal's Findings

8 The Tribunal found that the applicant had truthfully stated the circumstances that led to his departure from Iran. His family's landholding of four hectares near Ahwaz was appropriated by the Iranian National Oil Company for oil exploration without adequate compensation and against their wishes. It found also that the family made several attempts, by appealing to the authorities, to prevent the oil company from seizing their land and commencing oil exploration operations. It accepted that the applicant was sentenced to a period of one year in gaol for an assault on the Governor-General. The relatively lengthy period of the imprisonment was due to the fact that the assault was perpetrated on the person occupying the office of Governor-General and did not relate to the seriousness of the physical assault itself. The Tribunal was not satisfied however that the ethnicity or religion of the applicant was a factor in his being charged or sentenced. Nor was it satisfied that he was seen through the circumstances of the assault to be a political dissident.

9 The Tribunal accepted that the applicant's actions some months after he was released from his gaol term, in chasing representatives of the oil company off the remaining family land with a rifle and then damaging the company's vehicles, flowed from their anger and desperation in seeing a source of their livelihood unfairly and unlawfully taken away from them so far as they were concerned. The Tribunal accepted the evidence that the applicant was not thinking properly when he acted as he did and that he and his brother were very upset about losing their land which was extremely important and valuable to them as an important source of income and having been in their family for generations. Their family honour was at stake. The Tribunal accepted that it was these circumstances that led to security officers approaching the applicant's home to arrest him and his brother, Hakim.

10 The Tribunal did not accept that the Iranian authorities would attribute a dissident political opinion to the applicant or his family on the facts found by the Tribunal. They would be aware that the applicant is an unsophisticated, illiterate peasant farmer. There was insufficient evidence that the applicant's ethnicity or religion or that of his family had anything to do with the oil company's actions or the position later adopted by the Governor-General and the Ministry for Justice. The Tribunal was not satisfied that on his return to Iran the applicant would be persecuted for reason of his membership of a particular social group, by virtue of his ethnic Arab background, his religion or an imputed dissident political opinion.

11 The Tribunal referred to independent country information about the oil exports from Iran. It did not have evidence of the Iranian government's processes for land acquisition for oil exploration and was unable, on the evidence, to find positively that the actions of the oil company in taking the applicant's family's land were legally or illegally undertaken.

12 The Tribunal was not satisfied of what particular offence or offences the applicant may have committed under Iranian law, if any. It found it likely that the applicant would face interrogation and physical mistreatment possibly by the Ettela'at on his return to Iran and would most likely be charged with a criminal offence or offences. It went on:

"The Tribunal is satisfied on the evidence that, if he is charged with a criminal offence or offences, he will possibly face a lengthy gaol term, and may even face a death penalty, for his actions in seeking to prevent his family's lands from being taken and used for oil exploration, the serious property damage he caused and because he or his family resisted arrest."

13 The Tribunal was not satisfied that he would be perceived by Iranian security authorities as a political dissident because of his actions or his previous conduct. It considered that his actions would be perceived as criminal responses to the oil company's seizure and use of the land. The Tribunal did not have sufficient evidence as to the particular law under which the applicant was likely to be charged by Iranian authorities but it would relate to his actions and these would be criminal offences with punishment according to criminal law. The Tribunal was not satisfied that the Iranian authorities would selectively enforce their criminal laws against the applicant upon his return to Iran. The applicant had attracted adverse attention from law enforcement authorities only because he assaulted the Governor-General, expelled oil company representatives by firing his rifle in the air and set fire to their vehicles and because he later avoided arrest when the Ettela'at security authorities came to his home. The Tribunal said:

"The Tribunal does not have any convincing evidence before it that the likely enforcement of criminal laws against the Applicant will be for the purpose of oppressing an Iranian of ethnic Arab descent, being a member of a particular social group in Iran, or because of his religion or any imputed political opinion. In these circumstances the Tribunal is not satisfied that the Applicant is in genuine fear of persecution for a Convention reason."

14 In relation to his alleged illegal departure from Iran the Tribunal accepted that if returned to Iran he might receive a gaol term in respect of that offence. This, however, would not constitute persecution under the Convention as it was a law of general application. Similarly the act of applying for asylum abroad was, on country information, not an offence and not much more than verbal harassment would follow.

15 The Tribunal concluded that the applicant was in genuine fear of persecution if returned to Iran. However, taking into account all of his circumstances, it was not satisfied that there was a real chance that he would suffer persecution under the Convention if so returned. The Tribunal added a reference to humanitarian considerations at the end of its reasons. It said:

"The facts found by the Tribunal in this matter establish that the Applicant is likely to face on return to Iran physical mistreatment, criminal charges and a very substantial gaol term or, possibly, execution for his conduct in chasing off the family lands oil company representatives with his rifle, damaging the oil company's property, resisting arrest and fleeing the country. His conduct and that of his deceased brother Hakim, which the family recognised was a mistake, was motivated at a time of high emotion, by strong anger at the treatment he and his family had suffered and the unfairness of the offer of compensation, the loss of a valuable asset and source of income and by family honour. Arising out of their attempt to keep their lands, there are a number of tragic circumstances that have befallen his family. The Applicant's brother was killed by security forces, another brother is in gaol for twenty years, his father has suffered a stroke, resulting in partial paralysis of his body, and the Applicant, a young man, has suffered a year in gaol and fled his country and can expect severe repercussions on return to Iran. The Tribunal draws these matters to the attention of the Minister for his consideration."

Grounds of Review

16 The grounds of review as set out in the amended application filed on 21 December are as follows:

"6. Pursuant to section 476(1)(e) of the Act, the Tribunal's decision involved an error of law, being 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, whether or not the error appears on the record of the decision.

7. In particular -

(a) the Tribunal found (Court Book, p133) that the Applicant "is in genuine fear of persecution on return to Iran";

(b) the Tribunal found (p130) that the Applicant, on return to Iran, "will most likely be charged with a criminal offence or offences" and was satisfied on the evidence that, if the Applicant is so charged, "he will possibly face a lengthy gaol term, and may even face a death penalty";

(c) the Tribunal found (p133) that the Applicant, on return to Iran, is likely to face "physical mistreatment, criminal charges and a very substantial gaol term or, possibly, execution";

(d) the Tribunal stated (p130) that it was "not satisfied on the evidence what particular offence or offences the Applicant may have committed under Iranian law, if any";

(e) despite that express finding in ground 7(d) above, nevertheless the Tribunal said (p130) that, in its view, the Applicant's actions would "be criminal offences with punishment according to criminal law";

(f) the Tribunal held (p132) that because the Applicant's genuine fear of persecution arose from a criminal offence, or offences, it was not satisfied that "the Applicant is in genuine fear of persecution for a Convention reason".

8. The Tribunal erred in law in holding that the Applicant's well-founded fear of persecution was not for a Convention reason, and in finding that the fear of persecution was not attributable to the Applicant's -

(a) race;

(b) religion;

(c) membership of a particular social group;or

(d) political opinion.

9. The Tribunal erred in law in not holding that the Applicant's well-founded fear of persecution was for reasons of -

(a) race;

(b) religion;

(c) nationality;

(d) membership of a particular social group; or

(e) political opinion.

10. Pursuant to section 476(1)(g) of the Act, there was no evidence or other material to justify the making of the decision in ground 8 above.

11. Pursuant to section 476(4)(a) of the Act, the Tribunal was required by law to reach the decision that the well-founded fear of persecution was not for a Convention reason only if it was established that that persecution was for a reason which was not a Convention reason and there was no evidence or other material (including facts of which the Tribunal was entitled to take notice) from which the Tribunal could reasonably be satisfied that the non-Convention reason was satisfied. The Tribunal's express finding in ground 7(d) above shows that there was no evidence or other material which established to the Tribunal's satisfaction that a non-Convention reason existed.

12. Pursuant to section 476(4)(b) of the Act, the Tribunal based its decision on the existence of a particular fact, namely that the Applicant's well-founded fear of persecution was attributable to his criminal offence or offences, and that fact (namely, the criminal offence or offences) did not exist, as per the express finding stated in ground 7(d) above.

13. Pursuant to section 476(1)(e) of the Act, the Tribunal, in reaching its decision, failed to give proper account to relevant considerations in the exercise of its power, namely -

(a) the contents of the letter of 31 January 2001 from Dr Al Jabiri & Associates titled "General Submission on behalf of Iran Asylum-Seekers in Detention" (pages 46-60); and

(b) the contents of the letter of 9 July 2001 from Dr Al Jabiri & Associates titled "Post-Hearing Submission on Behalf of Mr Iraj Navasseri from Iran - in Detention" (pages 85-92)."

The Hazard on Refoulement

17 The first issue raised by Mr O'Connor QC, who represented the applicant on a pro bono basis, was reflected in pars 6 and 7 of the grounds of review. The core of the complaint lay in the Tribunal's alleged failure to identify the criminal offence or offences which, in its opinion, the applicant had committed in breach of Iranian law. It could not therefore, it was said, have been satisfied that the applicant had committed any offence against Iran's criminal laws.

18 The Tribunal finding that the discharge of fire arms and the setting alight of earth moving equipment would be criminal offences under Iranian law was a finding of fact. It was plainly open to the Tribunal to determine that such acts would be punishable without having to specify which law had been breached or precisely how the offences might be characterised. The threatening discharge of a firearm to deter civil workers and the deliberate destruction of property are matters which are likely to be contrary to the criminal law in most organised societies which have such laws. While it may be said that the Tribunal's finding was inferential, it was a finding it was entitled to make. There is no basis upon which the Court can review that finding. There is no substance in these grounds of review.

Persecution for a Convention Reason

19 Grounds 8 and 9 can be considered together. These were really by way of direct challenge to the Tribunal's fact findings. Counsel for the applicant referred to country information in a general submission to the Court particularly in reference to the position of Khozestan Arabs within Iran. It was said that the Tribunal had failed to give proper regard to the contents of the general submission and had looked at the incidents which precipitated the applicant's departure from Iran in isolation from reality. The applicant however had advanced no case which would support a finding that there was a real chance of persecution for any of the Convention reasons mentioned. Given the Tribunal's findings that the persecution faced by the applicant on his return to Iran would be the result of his own criminal acts in Iran, there is no room for the finding that such persecution would be for a Convention reason.

20 In his supplementary statement to the Tribunal the applicant identified the disadvantaged position of Khozestan Arabs. At no time, however, did he suggest that the persecution which he would face if returned to Iran had any connection with his race or religion or political opinions. His complaint was that "...I will not be treated humanly or in accordance to (sic) the law in Iran. I will be treated according to the harsh Ettela'at regulations where persecution and tortures are the most usual ways they treated those who they considered to be dissenters". There is no error disclosed in the Tribunal's reasons in this respect.

Remaining Grounds

21 Paragraphs 10, 11 and 12 revisit in different guise the matters raised in the earlier grounds. Paragraph 13 alleges a failure on the part of the Tribunal "to give proper account to relevant considerations in the exercise of its power". To the extent that this is a ground about the weight given to particular considerations and to particular material before it, the Tribunal's decision on these matters is one for it and not for judicial review.

Conclusion

22 For the preceding reasons the application is not made out and will be dismissed.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated: 8 February 2002

Counsel for the Applicant:	Mr R O'Connor QC (Pro Bono)
Counsel for the Respondent:	Mr AA Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 January 2002
Date of Judgment:	8 February 2002