Maleki v Minister for Immigration & Multicultural Affairs [2001] FCA 1067

FEDERAL COURT OF AUSTRALIA

Maleki v Minister for Immigration & Multicultural Affairs [2001] FCA 1067

MALEKI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 86 of 2001 CARR J 6 AUGUST 2001 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 86 OF 2001

BETWEEN: MEHRZRD MALEKI

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: CARR J

DATE OF ORDER: 6 AUGUST 2001

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant 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 86 OF 2001

BETWEEN: MEHRZRD MALEKI

Applicant

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

Respondent

JUDGE: CARR J

DATE: 6 AUGUST 2001

PLACE: PERTH

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION 1 This is an application for an order of review of a decision made by the Refugee Review Tribunal ("the Tribunal") on 8 March 2001, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant. The applicant, who is a citizen of Iran, arrived in Australia on 6 October 2000. On 26 October 2000 he lodged an application for a protection (class AZ) visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) ("the Act"). In his protection application, the applicant stated that he had given his passport to a smuggler. On 8 December 2000 a delegate of the respondent refused to grant a protection visa. On 13 December 2000 the applicant applied to the Tribunal for review of that decision.

the applicant's claims and the Tribunal's decision 2 The applicant's claims, in summary, were as follows: · He is a 26 year old taxi driver and painter from Bandar Anzali in Northern Iran. · One morning in either June or July 2000 (the applicant in his initial interview gave the date as being approximately 23 or 24 July 2000, but in his later statutory declaration the date is shown as being "in June" 2000, though in my view nothing turns on these differences) he was driving his taxi and talking to one of his passengers. The news was on the radio in his taxi and he started talking with his passenger about politics. The applicant criticised the Islamic leader and the Mullahs. He said that they were thieves and killed people, but pretended to be Muslim. · Later the same day between 9.30pm and 10pm the applicant was driving home and stopped to pick up two men who flagged him down. One got into the front of the taxi and one into the back. They told him to go straight ahead. When they were outside of the town one man pulled out a gun and told the applicant to stop the taxi. · The applicant was pulled out of the taxi and the two men started searching him and his taxi. He was then handcuffed and blindfolded and thrown into the back of the car. They took him to their Etelaat station and asked him questions about what he had said in the taxi. · He was held for four or five days. He was told that he had insulted the leader and that the punishment was death. He was tortured while in their custody. While he was blindfolded, he was frequently punched and kicked. Occasionally he was given brief electric shocks. The last two days were the worst. He was stripped almost naked. A weight was hung from his testicles. His interrogators kept repeating the comments which he had made in the taxi. They said he was a spy and that he had insulted the leader and had to be killed. · The interrogators accused the applicant of spying and of being involved in a demonstration at the University of Tehran. They kept beating him, trying to force him to say what he had done. · The applicant was then released and told it was a "temporary" release. His interrogators also said they would be watching him and that if he made one small mistake they would kidnap him and kill him without his family knowing about it. · About two weeks later he met a smuggler who agreed to help him leave Iran. He paid 50,000 Toman for a passport in his real name, but with the date of birth as "19 April 1974" which was not his real birth date. He flew to Bangkok and then to Jakarta. From Indonesia he came by boat to Australia. He paid US$7,000 to the smugglers. · The applicant claimed that he could not return to Iran because he would be killed by the authorities. Now that he had left the country without telling any person and without the knowledge of the government he would have committed the "one small mistake" which would result in his death if he was forced to return to Iran. 3 Rather than attempt to summarise the Tribunal's findings and reasons, I shall set them out below in full. I have numbered the paragraphs to facilitate the references to the Tribunal's reasons which I make later in these reasons. "FINDINGS AND REASONS 1. Mr Maleki spoke Farsi well, and showed a familiarity with ordinary daily life in Iran. There is no evidence before the Tribunal from which it might be inferred that he is national of any other country. I am satisfied, and so find, that he is a national of Iran and of no other country.