Karimi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 45 Karimi v Minister for Immigration and Multicultural Affairs [2002] FCA 211 NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC) The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation. The transitional arrangements are as follows: * All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation. * All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series. * All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only. FEDERAL COURT OF AUSTRALIA Karimi v Minister for Immigration and Multicultural Affairs [2002] FCA 211 Migration Act 1958 (Cth) s 476(1) Abebe v Commonwealth of Australia (1999) 197 CLR 510 Applied DARYOUSH KARIMI V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS S160 of 2001 WHITLAM, SACKVILLE, KIEFEL JJ ADELAIDE 8 MARCH 2002 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S160 OF 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: DARYOUSH KARIMI APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGES: WHITLAM, SACKVILLE, KIEFEL JJ DATE OF ORDER: 7 MARCH 2002 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The appeal is 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 S160 OF 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: DARYOUSH KARIMI APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGES: WHITLAM, SACKVILLE, KIEFEL JJ DATE: 8 MARCH 2002 PLACE: ADELAIDE REASONS FOR JUDGMENT THE COURT: 1 The appellant is an Iranian national. On 13 February 2001 he lodged an application for a protection visa. This was a short time after his arrival in Australia. The Minister's delegate refused to grant a class XA visa and the appellant applied to the Refugee Review Tribunal for review of that decision. 2 For the appellant to qualify for a protection visa the Tribunal had to be satisfied that the appellant is a "refugee" as defined in Article 1A(2) of the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees. The appellant claimed to fear persecution because of political opinions imputed to him and his family. 3 The appellant's claims were principally recorded in a statement made by his solicitor and tendered to the Tribunal. He also gave oral evidence and was questioned at some length by the Tribunal. 4 The appellant said that he was 32 years old, of Bakht-Yari ethnicity and Shi'ite Muslim religious background and an industrial electrician. He had been unemployed for three years because he was in hiding. This was said to have resulted from events concerning one of his brothers, Ebrahim. 5 The appellant's brother was said to have been a member of a Tae Kwon Do team in Iran in 1996 which was sent to Belgium for a competition. The appellant had to provide a guarantee of 25,000,000 Tomans, which was payable if his brother did not return. He provided an undated cheque and said that it was common to do business in Iran in this way, even though he did not have sufficient funds in his banking account to meet the cheque. The reason he had to provide a guarantee was because his brother had not yet undertaken his military service. 6 The appellant's brother did not return and applied for refugee status in Belgium. The brother had worked for the security forces of Sepah, as a Tae Kwon Do instructor. Sepah is, the Tribunal observed, a separate organisation to the regular armed forces and regarded as most devout defenders of the revolution. The appellant said that Sepah questioned his family and him in particular, because he was the guarantor. Although he paid a substantial sum and monies were deducted from his salary, Sepah continued to harass him. He was regularly asked to attend for questioning and he was accused of knowing that his brother was involved in some kind of political activity. He was also accused of himself being involved in political activities against the government. He said that Sepah believed that, because his brother had sought refugee status, he belonged to a political group and since the appellant had acted as a guarantor, he was also involved. He said that Sepah also believed that he was involved with an anti-government group, most likely the Mujahideen. On six or seven occasions he was kept in a cell for two or three days. On several occasions he was told that if he did not confess he would be imprisoned or caned. 7 The appellant said that because of the questioning he was unable to work and lost his job. After that he lived in hiding in remote areas until a smuggler was found. 8 The Tribunal recorded a substantial number of questions that it put to the appellant. It obviously considered that his claims required further explanation. The queries were quite detailed. It pointed out to the appellant that the lack of documentary evidence from the brother in Belgium could be of some significance. The appellant had said that he had been in touch with his brother in recent years. The appellant agreed to seek written evidence from his brother to support his claims. After the hearing the Tribunal wrote to the appellant asking for further information, including documentary evidence that his brother was recognised as a refugee in Belgium and a statement from the brother that he had been in the training of Sepah. No further evidence was supplied by the appellant before the date nominated by the Tribunal (nor by the date of its decision) and the appellant did not seek any extension of time. 9 The Tribunal expressed "strong doubts" concerning the plausibility of the appellant's claim that his brother's failure to return from Belgium led to him being imputed with an anti-government political opinion because he had acted as his brother's guarantor. The Tribunal then listed claims which were difficult to accept as true. Nevertheless, the Tribunal proceeded to consider whether the appellant faced a real chance of persecution if he returned. 10 There were a number of factors which the Tribunal considered weighed against a finding that he had a well-founded fear of persecution when he left Iran. Indeed they led to the Tribunal disbelieving the claims in large part. 11 The Tribunal did not accept that the appellant could have left Iran on his own Iranian passport had he been of interest to the authorities. The information available to the Tribunal was that the pre-departure security checks were strict and it would be almost impossible to pay a bribe to avoid detection, as the appellant had claimed. Further, the appellant's case was that he in fact had a substantial debt yet to pay under the guarantee, and this would have been subject to one of the checks undertaken. 12 The Tribunal also thought it highly unlikely that the brother's failure to return would be sufficient to give rise to a suspicion that he was a supporter of an anti-government organisation. Emigration is popular in Iran and the allure of the West is of concern to the authorities. Significantly, the Tribunal noted that the appellant "… does not claim that he, or anyone else in the family, was ever suspected of anti-government activity before Ebrahim left for Belgium, and he does not claim that Ebrahim has since become involved in such activities". Further, the organisation said to be involved in anti-government activities had no substantial support bases in Belgium. 13 The Tribunal also considered that if the appellant had been suspected of supporting the organisation he would have been arrested and imprisoned or executed, because of the view still taken by the government about it as a threat to security. The "mildness" of the treatment he reported and the absence of charges was not consistent with the treatment typically meted out to suspected supporters. 14 Further, the Tribunal observed that the appellant's evidence as to the length of time he was "in hiding" and the number of times he was detained had varied significantly. His evidence on the subject was "internally contradictory and vague". 15 The Tribunal concluded that the appellant was untruthful in his claims about being wanted by the authorities for a reason associated with a political opinion imputed to him. His claims to refugee status therefore could not be accepted. 16 The appellant obviously faced a formidable task in securing review of the Tribunal's decision, based as it was upon its assessment of the improbability of his story and his lack of creditworthiness. 17 The appellant did not have legal representation at the hearing before his Honour, the primary Judge, and his application did not disclose any ground of review under s 476(1) Migration Act 1958 (Cth). Rather the appellant sought to argue the merits of his application. As his Honour observed, this was not a course open to him in an application for review. With this background his Honour decided to consider the Tribunal's reasons and determine for himself whether there was any reviewable error. 18 His Honour found only one matter which might, arguably, give rise to a ground of review. In the hearing before the Court the appellant had claimed that the Tribunal had been in error and that he had in fact claimed that his brother had been suspected of anti-government activity before he left for Belgium. His Honour considered whether it might be argued that the Tribunal had based its decision on the existence of a fact, and the fact did not exist (the grounds expressed in subss 476(1)(g) and (4)(b)). 19 His Honour reviewed the material before the Tribunal and concluded that the Tribunal had not been in error in this regard. The appellant's statements had focussed upon the suspicion of the Iranian authorities being aroused after his brother had decided to remain in Belgium. His Honour also took into account documentary evidence relied upon by the appellant in the judicial review proceedings. The letter purported to be from his brother in Belgium. His Honour did not consider that there was anything to indicate that the document was genuine, or that the appellant had been prevented from producing it earlier, as he claimed. Even accepting it as genuine, his Honour pointed out that it did not establish the existence of the relevant fact at the time of the Tribunal's decision. 20 The Notice of Appeal, prepared by the appellant himself, does not disclose grounds for appeal. Counsel for the appellant has made submissions on his behalf, and the Court has treated them as reflecting the grounds relied upon without amendment to the Notice of Appeal. 21 It was submitted that the primary Judge should have approached the matter as if the letter produced to the Court had in fact been available at the Tribunal hearing. There does not appear to us to be any basis for this approach. It was for the appellant to put his claims and his evidence before the Tribunal: Abebe v Commonwealth of Australia (1999) 197 CLR 510, 576 [187]. It is the Tribunal's decision on those claims and that material which is the subject of review by the Court. His Honour held that the appellant had not made a claim that suspicions were held by the authorities before the appellant's brother left Iran for Belgium. His evidence to the Tribunal had focussed upon suspicion being aroused after his brother's failure to return, and because of it. 22 The appellant further submitted that the Tribunal erroneously inferred that there were no suspicions held prior to the brother's departure merely because the appellant had said nothing about it. What was required was some positive evidence on the point. As we have observed, it was up to the appellant to adduce his evidence and make his claims. The Tribunal could not be expected to consider the possibility of suspicions being held earlier if this did not form any part of the appellant's story. 23 It was also submitted that the Tribunal had an obligation, rather than the appellant, to make enquiries of the Belgian authorities concerning the status of the appellant's brother. It may be accepted that this is a course open to the Tribunal in certain circumstances. On the appellant's evidence however, he had had recent contact with his brother and it therefore could be expected that the appellant might obtain evidence from him. It was appropriate for the Tribunal to give him an opportunity (as it did) to support his claims in this way. In any event, the evidence identified by the Tribunal as necessary went beyond the refugee status of the brother. It was open to the Tribunal to take the view that the appellant's claims needed further corroboration, for example that his brother had held the position with the Sepah before he left, as the appellant had claimed. 24 It was pointed out by counsel appearing for the appellant that his Honour the primary Judge appears not to have taken into account a photocopy of a document which bears a photograph and which was said to have been forwarded by the appellant to the Court with the letter. It does not appear that it was brought to the attention of his Honour. In any event it is not clear what assistance it may have afforded the appellant's case. Even if one were to speculate, by reference to the date on the document and a reference to Belgium, that it might confirm that the appellant's brother entered that country when the appellant said he did, it goes no way towards proving that he obtained refugee status or that he was involved with the Sepah. In any event, as we have explained, that was not an issue the Tribunal was required to explore. 25 His Honour was correct to hold that the appellant's case fell to be determined on the basis of the claims and material which had been put before the Tribunal. The appellant did avail himself of the opportunity to do so. The letter later produced by the appellant to the primary Judge was therefore irrelevant to any question before his Honour on the application for judicial review. 26 No error has been disclosed in his Honour's reasoning. The appeal should be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Whitlam, Sackville and Kiefel. Associate: Dated: 8 March 2002 Counsel for the Appellant: Mr E M Aujard Solicitor for the Appellant: Aujard Lawyers Counsel for the Respondent: Mr M J Roder Solicitor for the Respondent: Sparke Helmore Date of Hearing: 7 March 2002 Date of Judgment: 8 March 2002