Appellant WAEC of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 147

FEDERAL COURT OF AUSTRALIA

Appellant WAEC of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 147 APPELLANT WAEC OF 2001 v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 593 of 2001 GRAY, RD NICHOLSON & EMMETT JJ 19 JULY 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W593 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: APPELLANT WAEC OF 2001

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: GRAY, RD NICHOLSON AND EMMETT JJ

DATE OF ORDER: 19 JULY 2002

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. the appeal be dismissed; and 2. the appellant pay the respondent's costs. 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 593 of 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: APPELLANT WAEC OF 2001

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: GRAY, R D NICHOLSON AND EMMETT JJ

DATE: 19 JULY 2002

PLACE: PERTH

REASONS FOR JUDGMENT

GRAY J: 1 I have read the joint reasons for judgment of Nicholson and Emmett JJ in draft form. I agree with what their Honours have said, except in relation to the question of the claim, made by the appellant in the course of the hearing of the appeal, that the Refugee Review Tribunal ("the Tribunal") had failed to consider whether he had a well-founded fear of persecution on the ground of his political opinion. On that question, I have reached a conclusion different from that of their Honours. 2 It is unnecessary for me to set out all of the facts of the case, or to deal with the issues on which I am in agreement with Nicholson and Emmett JJ. The following reasons are those relating to the issue of political opinion. I need only state the facts so far as they bear upon that issue. 3 In its reasons for decision, under the heading "Background Information", the Tribunal made what appear to be findings as to the situation in Iran, in the following terms: "The Government's human rights record remained poor in 2000. Systematic abuses include extrajudicial killings and summary executions; disappearances; widespread use of torture and other degrading treatment; harsh prison conditions; arbitrary arrest and detention; and prolonged and incommunicado detention. Judicial proceedings were instituted against some government officials for misconduct, but perpetrators often committed such abuses with impunity. The judiciary suffers from government and religious influence, and does not ensure that citizens receive due process or fair trials. The Government uses the judiciary to stifle dissent and obstruct progress on human rights. The Government infringes on citizens' privacy rights, and restricts freedom of speech, press, assembly, and association. The Government closed nearly all reform-oriented publications during 2000 and brought charges against prominent political figures and members of the clergy for expressing ideas viewed as contrary to the ruling orthodoxy. However, the Ministry of Culture and Islamic Guidance continued to issue licenses [sic] for the establishment of newspapers and magazines, some of which challenged government policies." 4 Notwithstanding the deficiencies in the appellant's case relating to political opinion, to which Nicholson and Emmett JJ refer, the Tribunal said as to the appellant's claims: "At the hearing, [the appellant] said that he had long been troubled by the political and human rights situation in Iran. He claimed that while he was at technical school he had arguments with the religious instruction teacher about the role of religion in politics and because of this he was often expelled from the class. His views developed during his time in military service and when he began to work. There was a lack of freedom of expression and bribery and corruption were common. He did not approve of these things, but kept his views to himself as to do otherwise would have caused problems for his family. He was never involved with any political groups or activities until he saw the demonstrations developing in Abadan and decided he had to join in." 5 Despite setting out in this way the appellant's claims about his political views, the Tribunal did not make any finding as to their truth. If they were true, they might have put the appellant into the category of a political dissident in Iran. In the light of its findings, quoted above, as to the manner in which the Government of Iran deals with dissent, acceptance that the appellant was a political dissident might have led the Tribunal to consider whether his holding of dissenting opinions might lead to the appellant suffering some of the drastic consequences to which the Tribunal referred. If it would, the Tribunal would have had to consider whether there was a real chance that the appellant would suffer persecution by reason of his political opinion. If so, the Tribunal might have found that the appellant had a well-founded fear of persecution for this reason, if he should be returned to Iran. 6 Obviously, it would have been necessary for the Tribunal to determine whether the appellant would have kept his opinions to himself, as he had in the past, in order to protect his family, or whether he would have felt compelled to make them public by acting in accordance with them. Relevant to this question would have been the fact (which the Tribunal appears to have accepted) that the appellant had been prepared to make himself conspicuous as a social dissident by his manner of dress and his long hair. Also relevant would have been the appellant's claim that the demonstrations in Abadan had been the catalyst for his first public expression of his political views. It is true that the Tribunal disbelieved the appellant as to his participation in the demonstrations. Depending on the level of its disbelief, it was bound to take into account the making of the claim, and the possibility that it might have been true, in assessing whether there was a real chance of persecution for a Convention reason if the appellant returned to Iran. See Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 (1999) 93 FCR 220 at [60] – [63] per Sackville J, with whom North J agreed, and at [137] per Kenny J. 7 After the Tribunal had completed its hearing, the appellant sent to it by facsimile transmission on 8 March 2001 a hand-written letter dated 7 March 2001, from another person. Relevantly, the letter was in the following terms: "Respectfully there is some clarification in respect of the demonstration of July 2000 occured [sic] in Abadan in order to support the application of [the appellant]. The writer was a witness of the demonstration. … The movement and demonstrations in July 199 2000 [sic] in order to achieve some token rights and to overthrow the Religious-Militarist government of the middle ages occured [sic] in Abadan. There are some reason [sic] for necessity of the protest.