S.N. v Minister for Immigration & Multicultural Affairs [1997] FCA 869

FEDERAL COURT OF AUSTRALIA IMMIGRATION - review of decision of the Refugee Review Tribunal - whether Tribunal erred in law - persecution for the reason of association with political dissidents - whether sufficient evidence to demonstrate a change in circumstances where applicant may have been persecuted for Convention reasons in the past such that applicant could no longer be said to have a "well-founded fear" Migration Act 1958 (Cth), s 176(1)(e), s 420 Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, applied Yesus v Minister for Immigration and Ethnic Affairs (unreported, Madgwick J, 9 July 1996), applied S. N. v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 536 of 1996 Madgwick J Sydney 1 September 1997

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 536 of 1996 ) GENERAL DIVISION )

BETWEEN: S. N.

Applicant

AND: Minister for Immigration and Ethnic Affairs

AND: First Respondent

J Vrachnas

Member constituting the Refugee Review Tribunal

Second Respondent

JUDGE(S): MADGWICK J PLACE: SYDNEY DATED: 1 SEPTEMBER 1997

MINUTES OF ORDER

THE COURT ORDERS THAT: 1. The application is dismissed.

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 536 of 1996 ) GENERAL DIVISION )

BETWEEN: S. N.

Applicant

AND: Minister for Immigration and Ethnic Affairs

AND: First Respondent

J Vrachnas

Member constituting the Refugee Review Tribunal

Second Respondent

JUDGE(S): MADGWICK J PLACE: SYDNEY DATED: 1 SEPTEMBER 1997

REASONS FOR JUDGMENT HIS HONOUR: The applicant, who is an Iranian national, arrived in Australia on 12 January 1995, and applied for refugee status on 27 January 1995. For reasons given on 7 November 1995, the Minister's delegate refused his application for a protection visa on the ground that he did not meet the criteria of a "refugee"and therefore was not a person to whom Australian had protection obligations under the 1951 Convention related to the Status of Refugees ("the Convention"). According to the Convention, a refugee is a person who: "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unable to return to it." The applicant lodged an application for review with the Refugee Review Tribunal ("the Tribunal") on 16 November 1995, which subsequently affirmed the decision of the delegate for the reasons given on 4 June 1996. This is an application for judicial review of the Tribunal's decision, on the grounds that the Tribunal incorrectly interpreted the definition of "refugee" and thus erred in law, making the decision judicially-reviewable under s 476(1)(e) of the Migration Act 1958 (Cth) ("the Act"). The applicant's status The applicant claims that when he was about sixteen, he became acquainted with a political organisation involved in activities against the recently installed Islamic Republic. This rebel group was sympathetic to the Mojahedin, in which the applicant's sister was actively involved. In 1989, the sister of an anti-government activist friend who had been arrested by the authorities, hid in the applicant's home for a short time before escaping to another city. Around the same time, the applicant's sister heard that she was also wanted by an organ of the Iranian government known as the Pasdaran (also known as the Revolutionary Guard) for her involvement in the Mojahedin, and went into hiding. During this time, the Pasdaran regularly visited the applicant's home and searched the premises. The applicant claimed that, fortunately, the Pasdaran did not find some subversive material that had been left behind by his sister, and he gradually destroyed it. In October 1990 the applicant made arrangements for his sister's escape to Turkey, and the applicant travelled with her to Turkey in order to pay bribes which were necessary and to arrange for false papers so that she could seek asylum in Germany. The applicant claims that, on his return to Iran, he was questioned about the details of his trip but that he did not disclose anything. The authorities began regularly visiting the applicant and his family to ask about his sister's whereabouts. On one occasion, the authorities threatened to assault the applicant's mother if she did not disclose information about her daughter and her friends, and when the applicant intervened he was arrested by the Revolutionary Guard. During the first few days of his detention, the applicant was beaten, put in solitary confinement and interrogated about his sister's escape and about the activities of her friends. About a week later he was charged and convicted with a religious offence, and sentenced to three months imprisonment. On his release the applicant was forced to sign a document pledging his faith to the Islamic Republic, which he claims also required him to inform on his sister's friends. After his release, the applicant could not find a job in the public sector because, the applicant claims, of his political record. The applicant did obtain some work in the private sector, but claims that the Pasdaran would come to the workplace to question him about his sister and, when they saw this, his employers would dismiss him. The applicant then moved to another city in search of employment. He stated that, although the Pasdaran knew of his whereabouts, they left him alone so that they could monitor his movements and contacts. He was able to visit his mother every week or fortnight without further harassment. The applicant said that he became friends with a political activist, although the applicant claims that he did not know what his friend did, other than participate in discussions opposing the regime. This friend was arrested in September 1994, two months after being involved in rioting. The applicant said that he believed that his friend had been followed by the Pasdaran and that they would have known that the applicant was acquainted with him. The applicant claims he felt in danger, and went into hiding so that he could make arrangements to leave Iran. He further claimed that he paid an agent $6,000 to obtain a visa for him and that he paid bribes in order to bypass the airport security procedures, although this was done through an agent and the applicant claims not to have known how it was done. After his departure on 10 January 1995, the applicant contacted his family and was told that the authorities had detained and threatened his brother in order to obtain information about the applicant's whereabouts. The applicant claimed that his brother informed him that he was now "blacklisted" and should not return to Iran, and that the authorities had told his brother that they knew the applicant was associated with known activists and would be arrested when he returned. A friend of the applicant's sister-in-law also recently visited Australia and gave him a message from his brother not to return. The applicant claimed that, since he has a history of activities linked to the Mojahedin, the authorities would perceive his involvement to be an act of rebellion, and he fears he would be a target of retribution even though he is guilty only by association for being a relative of a person wanted by the authorities and by being associated with a known activist. The Tribunal's conclusions Relevantly to this review, the Tribunal made the following findings in relation to the applicant's claims: "While [the applicant] stated that he was involved to a certain extent with opposition groups prior to his sister's departure, he made no claim that he was ever harassed on account of this involvement and he told the Tribunal that he returned to Iran after he had been to Turkey because he was not in fear of encountering any difficulties at that stage. His evidence about visits by Pasdaran has varied from time to time, and it was only at the hearing that he stated there had been visits during the period his sister was hiding outside Teheran. He initially told the Tribunal that these visits were the reason his sister went into hiding, but later he stated that she fled after a warning from colleagues. He also told the Tribunal that the Pasdaran searched his house several times while his sister was in hiding, but they failed to find any of the subversive literature she had left for him to read. The Tribunal finds it odd that he would retain materials that may lead to persecution if they were discovered. He had consistently stated that he was not committed to dissident activities, although he was a sympathiser of Mojahedin, and it was apparent that he was constantly aware that the knowledge that the Pasdaran may visit and search on account of his sister's activities. It is also odd that he still retained subversive materials even after the claimed initial visit of Pasdaran. This is apparent in his statement that he destroyed such materials prior to his trip to Turkey. In the circumstances, the Tribunal concludes that the Pasdaran did not visit the Applicant's house during the time his sister was hiding prior to her departure for Turkey. Even if they did, they showed no interest in the Applicant, did not harm him and only enquired after his sister. The Tribunal accepts that the Applicant was questioned after his return from Turkey. He agreed with the Tribunal that this was a routine occurrence for Iranian nationals returning from abroad. He also stated that the Pasdaran visited on this occasion because they realised his sister was not there. This claim, however, is at odds with the claim that she had been in hiding for eighteen months. In any event, the Applicant did not disclose any information that put him at risk and the Pasdaran did nothing to him, apart from question him about his trip to Turkey and the whereabouts of his sister. The Tribunal accepts that the Pasdaran paid regular visits to the Applicant during 1990-91, and questioned he and his mother about his sister and her friends. It also accepts that he was detained when he intervened because they threatened his mother, and that he was sentenced to three months imprisonment for a breach of the religious code. There is no reason to doubt that he was seriously mistreated during his detention, particularly during the pre-trial period when the authorities sought to obtain some sort of confession or information. The Applicant was released in early 1992 after he agreed to act as an informer. It appears that he never gave any information, despite being periodically questioned by the Pasdaran. He told the Tribunal that he was refused employment in the civil service because of his political/religious record. However, he was able to obtain employment commensurate with his qualifications in the private sector and this was known to the Pasdaran. There is no evidence to suggest that the Pasdaran sought to prevent the Applicant working with private businesses and he stated that he was able to work for some two years in the new town without being harassed or questioned by the authorities, notwithstanding they knew where he was. The Applicant said he had never had a job in the public sector and gave no indication that he was directly informed he could not work in the public service. His evidence was that he was qualified for the public service jobs for which he applied, but his applications were rejected. The Tribunal concludes that he was competing with other applicants and there is no more than a remote possibility that his rejected applications were related to any motivation by the authorities to prevent him from working in the public sector. Even if the Tribunal is wrong on this point, the fact that he was permitted to pursue his vocation in the same manner as he had before his imprisonment, without interference, leads to the conclusion that he was not the victim of persecution after his release. The Applicant stated that neither he nor his mother were harassed by the authorities during the period after his release. He said he was able to freely travel to Teheran every week or two without being harassed at home or in the town where he worked, notwithstanding that he did not give any information to the Pasdaran, as he had agreed to do. He claimed that this was the result of the Pasdaran allowing him freedom so that they could monitor his movements and contacts. However, this claim is inconsistent with the claim that he became close friends with an activist with whom he consorted over a period of two years or more. It is also inconsistent with the claim that he went into hiding in a Northern town for the four months prior to his departure for Australia. The Tribunal concludes that there is no more than a remote chance that he was monitored by the Pasdaran and also concludes that any issue in which the authorities had an interest was finalised when the Applicant served his sentence and was released. The evidence of the Applicant suggests that he did not, in fact, go to another town after his release. At the hearing, the Applicant stated that he lived in the second town for a period of twelve to eighteen months. When the Tribunal pointed out this did not accord with other evidence, he stated he lived there for two years. He also claimed, for the first time, that he had gone into hiding in the Northern town for four months prior to his departure for Australia. On the other hand, he agreed that the Pasdaran operates a complex surveillance system at local levels and his application form states that he lived in the same place in Teheran for the ten years prior to his departure and was self-employed until that time, without any unemployment. While it may be reasonable that the Applicant could overlook short periods of residence in other locations, the Tribunal does not accept that he would overlook a period of two years which are so significant to his claims. Nor does it accept that he could remain in hiding for four months without attracting the attention of local authorities. Further, there was no indication that anybody in his family was questioned during those four months, despite the claim that his friend had been interrogated during that periods. He also told the Tribunal that he was accompanied to the airport by his family, but there is no evidence that he or any family members came to the attention of the security officers or other officials. The conclusion that the Applicant has contrived the account of living in other locations and arranging his departure to avoid being detained is supported by the inconsistency of his evidence regarding his efforts to obtain exit documents. His initial written submission states that his friend was arrested in December 1994. He altered this to September 1994 later on when it became apparent that the Departmental interviewer was aware his application to go to Australia had been lodged in mid-September. It was submitted that he was confused by the difference between the Persian and Gregorian calendars, although this difference did not lead to inaccuracies in referring to many other dates. It was the Applicant's claim that he was provoked to leave the country after he discovered his friend had been detained. The Tribunal asked the Applicant to give details of the events that lead to his application for a visa, yet on his own account, the time at which he resorted to an agent to pursue the visa application significantly post-dates the date of the visa application. In addition, he had his passport renewed at least two months prior to the earliest possible time of the alleged arrest of his friend. He stated that he did not know how this was done, as his brother made the arrangements for his passport renewal. It is notable that the passport was renewed nine months after its previous validity had expired, although there was no evidence that there was a particular event that inspired the renewal at that time. In the circumstances, the Tribunal draws the conclusion that the Applicant's plans to leave Iran were unrelated to any Convention reason. It concludes that he lived and worked in Teheran until he left for Australia and that, for the purposes of enhancing his refugee application, he has fabricated the account of being friends with a person who was arrested for opposition activities, and subsequently going into hiding."(emphasis added) The Tribunal also considered the observations contained in the Australian Department of Foreign Affairs report, Country Profile for use in refugee determination: Islamic Republic of Iran (March 1996), in which the DFAT reported that: At the airport, travel documents are checked by representatives of several Government agencies, passport Office, Customs, Information Ministry and Revolutionary Guard Corps at different points of the check-in procedure. With so many different checks, it would be impossible for anyone to bribe their way through an airport to effect departure. Similarly, it would be almost impossible to use an unauthorised travel document to pass through unless the document itself was a genuine one obtained under false pretences and/or with the collaboration of a range of people in the Passport Office... In the past, airport document and security checks were even more stringent, making these scenarios even more unlikely. It would be highly unlikely (perhaps even impossible) for someone whose offences were considered serious enough to warrant a denial of a passport, to obtain both a passport and exit stamp and depart for Iran through Teheran airport. There are too many people and agencies involved in such security matters for an individual to be able to pay off all the right people, or hypothetically to know even whom to pay off." Based on this information and the applicant's evidence, the Tribunal concluded that the applicant was not of any interest to the authorities when he left Iran, and that he would have obtained his passport and departed through the normal channels. The Tribunal rejected the applicant's claim that he made arrangements to leave Iran as a consequence of his friend's arrest, or that he was in hiding when these plans were made. In summary, the Tribunal continued: "The Tribunal notes that the Applicant's claims rested on his sister's activities until he was detained. Following his release, he gave no evidence that the authorities showed any further interest in his sister and, apart from asking him for information, they showed no interest in the Applicant. His focus then transfers to claims related to the arrest of a friend with who he had consorted over a prolonged period, but this account of events is inconsistent with evidence regarding exit documentation and procedures, and the extensive surveillance system the Applicant agreed was implemented by the Iranian authorities. Further, despite previous claims that the Applicant and his mother were constantly harassed by the authorities because of a relative's activities, there is no claim that such harassment continued to be directed at the Applicant or any of his relatives after the Applicant's release from prison, notwithstanding the claim that there was still an ongoing interest in him, his sister and his friend. The Tribunal concludes that he was not a refugee when he departed Iran, as any fears of persecution he may have harboured were ill-founded because there was not a real chance that they would be realised." (emphasis added) The Tribunal concluded that it was unlikely the applicant's brother would be told by the authorities that the applicant had been placed on a black list because he was associated with an anti-government activist. The Tribunal further considered that, if it was wrong on this account, the DFAT Profile indicated that people who have a minor association with the Mojahedin do not face a real risk of persecution, should they return to Iran. The Tribunal continued: In the Tribunal's view, the Applicant's claimed political activities could be described, at most, as peripheral. He stated that he was not committed to the cause of the Mojahedin and that he sometimes passed on messages to trusted acquaintances. His initial submission that he became involved in activities from the age of sixteen were not borne out by later statements at the hearing that his story began in 1989 with the arrest of a friend of his sister and he had no fear about returning to Iran in 1990 because he had not been involved. At the Department interview, he was unable to provide any significant details of the operations or philosophy of the Mojahedin. While the Applicant was imprisoned, he did not claim that this was because he was suspected as a Mojahedin supporter, but because he had objected to mistreatment of his mother and was accused of being disloyal to Islam. As unfair as this was, it does not indicate he was suspected of being a sympathiser of the Mojahedin. The Tribunal does not accept that the Applicant has ever been suspected of anti-revolutionary sentiments or behaviour. Nor does it believe that his relatives have been interrogated because of such activities and informed that the Applicant will be severely punished if he returns. It accepts that he was once involved in an argument related to harassment of his mother and he was unfairly punished and mistreated. This occurred some three years prior to his departure and after his release he was able to pursue his normal employment and life and then leave the country without hindrance. The possibility that he was previously at risk of punishment for being associated with a dissident group is far-fetched. Similarly, there is no acceptable information before the Tribunal to indicate that there has been a change in circumstances since he left the country or any other Convention reason. Even if the Tribunal is mistaken in its conclusions that the Applicant has not been suspected of Mojahedin sympathies, and will not be so suspected in the foreseeable future, his history of returning to normal life without harassment indicates that there is no more than a remote chance that he faces persecution for that reason should he return. Such a conclusion would be supported by the information from DFAT, above."