Estahbanati v Minister for Immigration & Multicultural Affairs [2001] FCA 873

FEDERAL COURT OF AUSTRALIA

Estahbanati v Minister for Immigration & Multicultural Affairs [2001] FCA 873 IMMIGRATION – refugee – Iranian national – review of Refugee Review Tribunal – decision turned on question of fact – no error of law or procedure demonstrated – no grounds for review – application dismissed – case turns on own facts - no question of principle Migration Act 1958 (Cth) NADER SAYADI ESTAHBANATI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W20 OF 2001 FRENCH J 4 JULY 2001 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W20 OF 2001

BETWEEN: NADER SAYADI ESTAHBANATI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 4 JULY 2001

WHERE MADE: PERTH

THE COURT ORDERS THAT:

The application 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

WESTERN AUSTRALIA DISTRICT REGISTRY W20 OF 2001

BETWEEN: NADER SAYADI ESTAHBANATI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE: 4 JULY 2001

PLACE: PERTH

REASONS FOR JUDGMENT 1 Nader Sayadi Estahbanati is an Iranian national who was born on 11 July 1963. He arrived in Australia as a stowaway on a ship which docked at Portland in Victoria on 11 September 2000. On 15 September, he lodged an application for a protection visa under the Migration Act 1958 (Cth) on the basis that he was a person to whom Australia had protection obligations under the Refugees Convention. 2 On 14 November, a delegate of the Minister for Immigration and Multicultural Affairs refused the grant of a visa. On 15 November, Mr Estahbanati applied to the Refugee Review Tribunal for review of that decision. On 2 January 2001, the Tribunal affirmed the decision not to grant a protection visa. On 22 January, Mr Estahbanati made an application to this Court for review of the decision of the Tribunal. In the application form he stated he was aggrieved by the decision because the Tribunal did not believe his claim to be a refugee and that it was not fair. There were no separately stated grounds for the application. Mr Estahbanati was referred to a pro bono legal adviser and he was seen by Mr Patrick O'Neal. Mr O'Neal, however, having spoken with Mr Estahbanati, sought release from the obligation to represent him in Court. That is a course open to a pro bono lawyer when he comes to the view that representation would not be appropriate. 3 Mr Estahbanati, who is presently held in the Perth Immigration Detention Centre, has appeared before me today representing himself and aided by Ms Sue Massoudi as interpreter. Understandably, Mr Estahbanati faces great difficulty in challenging the decision of the Tribunal because of the limited grounds upon which such decisions may be challenged under Part VIII of the Migration Act. 4 I have pointed out to Mr Estahbanati in the course of his appearance this morning that this Court cannot interfere with a decision of the Tribunal simply because he thinks the Tribunal got the facts wrong or that the Tribunal should have believed him when it did not. I explained to Mr Estahbanati that, in substance, I would only interfere with decisions of the Tribunal where there had been a mistake of law or procedure. Not suprisingly, he was unable to demonstrate any mistake of law or procedure or any other error which could amount to a ground for interference with the Tribunal decision. 5 The substance of the Tribunal's findings are conveniently summarised in written submissions which were prepared on behalf of the respondent Minister and I will borrow from those for the purpose of setting out the findings. The Tribunal reasons themselves, of course, may be referred to for a comprehensive account of the applicant's own evidence in relation to his claims to be a refugee within the meaning of the Convention. 6 Seven years ago the applicant, Mr Estahbanati, had been involved in a physical confrontation with a member of Iranian security forces. He had left Iran illegally and travelled to Australia. He subsequently returned to Iran because of concern for his brother. He was arrested, brought before a court and sentenced to a term of imprisonment, a fine and corporal punishment by way of lashes. The penalty imposed, as the Tribunal found, was for breaching laws of general application; namely; the law in relation to assault and the law in relation to illegal departure from Iran. 7 The Tribunal was not satisfied that the punishment imposed on Mr Estahbanati amounted to persecution for a Convention reason. Moreover, his evidence indicated that having served his sentence he resumed his personal and business life in Abadan. The Tribunal went on to find that in 1996 Mr Estahbanati had been detained for twenty-four hours following his return from a business trip. This occurred because the person with whom he stayed in Dubai was suspected of being a member of the MKO. The Tribunal also accepted that he was physically assaulted while in detention but on his evidence he had been released because he convinced the authorities that his trip to Dubai was purely for business. He was not detained on any other occasion because of any suspected involvement with the MKO and he wasn't in fact, involved with it. 8 The Tribunal regarded his detention in 1996 as a one-off incident that had occurred four years ago. Mr Estahbanati had also claimed to the Tribunal that he was at risk of arrest because of his family's political history and, in particular, his late father's membership of the Tudeh Party. It was accepted that his father was a member of that Party. However, if the authorities had any interest in him because of that or because of political activities of other members of his family, they had sufficient opportunity to arrest him for that reason before he left Iran again. The chance that Mr Estahbanati would face persecution because of his father's political activities or those of any other member of his family was seen by the Tribunal as remote. 9 Mr Estahbanati had also claimed to the Tribunal that he had difficulties in Mashar and Abadan because he did not attend Friday prayers and pro-government demonstrations. On independent evidence, the Tribunal concluded that there was no compulsion on Iranians to attend the Mosque to offer prayers, nor was there any independent evidence suggesting that businessmen had to attend pro-government demonstrations. Mr Estahbanati did attend a demonstration in Abadan in July 2000 and he did shout slogans at the demonstration. There was a number of people arrested for offences involving property damage, but the independent evidence did not suggest that people were arrested simply for attending the demonstration of shouting slogans. 10 The Tribunal did not believe Mr Estahbanati's claim that security forces wanted to arrest him because he participated in the demonstration. It accepted his claim that he was hit on the back during the demonstration, but was not satisfied that any attempt was made to arrest him. The Tribunal also considered whether or not Mr Estahbanati would face persecution by reason of his illegal departure from Iran. It said that he would be likely to face a fine for breach of a general law and not because he qualifies as a refugee. The Tribunal also considered whether the fact that he had applied for refugee status in Australia would lead to him being persecuted if returned to Iran and concluded that he would not. 11 In the end, the Tribunal for all of these reasons, was not satisfied that Mr Estahbanati was a person to whom Australia has protection obligations. The decision of the Tribunal turned on findings of fact. There is nothing in the decision to suggest that they have made an error of law or procedure. There is nothing apparent to me which would indicate a possible ground of review under Part VIII of the Migration Act. For this reason the application will be dismissed with costs.