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. Incidents on day of claimed detention 2. Despite Mr Maleki's written claim that he was detained in June 2000, I propose to give him the benefit of the doubt, as he has consistently claimed since then that it happened at the end of the month of Tir, which would make the incident around 22 July 2000. 3. For the following reasons I have strong doubts as to the plausibility of his claims regarding what happened at this time. 4. Firstly, in Iran the wearing of a beard is a sign of a man's religious devotion (Abdo. G. 1999, "Iran's Youth Face Off In Culture Clash", Guardian Weekly, 10 January, CX35420). Members of the basij, a volunteer force responsible for upholding strict Islamic conduct, wear beards (MacLeod, S. 1998, Old Iran vs new, Time, pp.46-48, 6 July, CX31525). While there a great deal of evidence that ordinary Iranians complain routinely about the government and Iran's ailing economy, it is very difficult to understand why Mr Maleki might have chosen to voice the type of complaints he did, and in such a forceful manner, to a person who, bearded, was more likely than not to be a supporter of the very conservatives Mr Maleki was criticising. 5. Secondly, Mr Maleki has claimed that he made rude and critical comments about Iran's Supreme Leader (Ayatollah Khamene'i] and Iran's President, [Mohammad Khatami] to his passenger. As is apparent from the independent evidence, these two men are poles apart in terms of their political views. Khatami is a popular reformer, while Khamene'i heads the conservative internal security forces and the judiciary. In the context of Iranian politics as described in the U.S. State Department and DFAT reports above, it would seem to be unusual for an individual to feel strongly enough about the political situation in Iran to express such strong critical views to a stranger, while failing to differentiate between these two particular political figures. 6. Thirdly, Mr Maleki claimed that his car was flagged down late at night by men from the security forces, and that these men knew what he had said to his passenger earlier that day. He speculated (he said he "felt") that they had been following him throughout the day. He claimed that they must have jumped from their own vehicle in order to stand in front of his, in order to flag it down. I consider this latter point to be no more than speculation, as he has not claimed that he saw them stop and leave their car. In other words, he is claiming that two men appeared by the side of the road and flagged him down, and they did this in order to detain him. This claim appears to be illogical. If the men had been following him by car, and had then decided to detain him, they could simply have pulled up in front of him. There was nothing to be gained from their leaving their vehicle and pretending to be ordinary passengers before revealing their identity. Further, it is very difficult to see how the occupants of a vehicle travelling behind him could have anticipated where he was heading in time to leave their vehicle and position themselves, as pedestrians, by the side of the road. The only alternative scenario possible, if the account were true, is that he was not followed at all, but that men from the security forces either anticipated that he would pass that way or saw him by chance. Either way, such an explanation would be extraordinary. That they could have anticipated that he would drive down that road at that particular time is highly improbable. That the very men who knew his car's number plate might have been standing by chance by the side of the road, and have recognised his car late at night, is also highly improbable. This is particularly so given that his car was not marked as a taxi, had no distinguishing features, (he described it at the hearing as "ordinary") and was a Paykan, a very common car in Iran. There is no reason apparent from the evidence why, if the authorities had decided to arrest him, they did not simply come to his home to do so. 7. It is possible, and I accept, that Mr Maleki has been critical of the government to other Iranians from time to time. He agreed during the hearing many Iranians complain about the government. However there is reason to doubt that the views he expressed were ever relayed to the security forces and, even if they were, in my view there is considerable reason to doubt that he was detained under the circumstances he has described. Exit from Iran 8. Mr Maleki has claimed that he was charged with insulting the Supreme Leader and the regime, was released on bail and was awaiting trial when he departed Iran. He has also claimed that, among other things, he was accused of being a member of the MKO. 9. Mr Maleki claims to this Tribunal that his date of birth and name differ from those that were in the passport he used to leave the country. 10. I am not satisfied that this claim is true, for the following reasons: Name 11. Firstly, during his interview with the Department (28 October 2000) he was asked if he had ever been known by any name other than "Mehrzad Maleki". He responded only that he had had the nickname "Mehrdad". On the Protection Visa application form "C" he gave his "full name" (question 1) as "Mehrzad Maleki" and, asked (question 3) what other names he had been "known by", he responded "n/a". At no time prior to the Tribunal hearing did Mr Maleki state, orally or in writing in the statements or on the various forms he has completed, that his surname was in fact "Maleki Bahambari". 12. Secondly, in the Statutory Declaration to the Department of 22 October 2000, in which he gave his name as "Mehrzad Maleki" and detailed his claims with the assistance of an interpreter, he stated that he had paid a sum of money for a passport in his "real name" and had flown to Bangkok using it, then Jakarta, using it. 13. Thirdly, in order to support his belated claim that his real surname was in fact "Maleki Bahambari" he volunteered to provide to this Tribunal a copy of his Iranian identity card (shenas nameh). He has submitted copies of two documents. In a submission from his solicitor of 20 February 2001 the Tribunal was advised the Mr Maleki had instructed that these documents related to his father and his brother. However in a subsequent letter from his solicitor of 7 March 2001 the Tribunal was advised that Mr Maleki had instructed that the card which he had previously stated was that of his brother was in fact his own ID card. Whichever is the case, the Tribunal can accord no weight to either document because they are too unclear to be translated. 14. Fourthly, during his interview with the Department on 28 October 2000, he claimed that he had had a valid passport since 1997. A smuggler had advised him that the stamps in it which showed he had overstayed in Cyprus would give him problems if he tried to travel through other countries with it, and he would not be allowed to leave Iran with a passport which showed he had overstayed in another country. Therefore he had given the smuggler his own passport and the smuggler had provided a new passport for him. It was this passport with which he left Iran. The Departmental officer asked him what changes had been made to the new passport. He responded only that the new passport contained no stamps, and thus no previous travel. He did not mention that the name or date of birth had been changed. At the Tribunal hearing he reiterated these claims, and said that he had thought at the time that his correct date of birth was on the new passport. He had paid for a passport which he had, believed to correctly identify him simply because it showed that he had overstayed abroad. 15. For these reasons I am satisfied that Mr Maleki left Iran using a passport in the name "Mehrzad Maleki", that this was his real name and that it was the name by which he was known on official records in Iran. Date of birth 16. Mr Maleki now claims that his real date of birth is 19 October 1974, but that the passport he used to leave Iran contained the birth date 19 Apri1 1974. 17. Firstly, as noted above Mr Maleki has not submitted his shenas nameh, on which his correct date of birth would be recorded. I infer from this that that document may show his date of birth to be 19 April 1974. 18. Secondly, when he arrived in Australia he no longer had the passport on which he departed Iran, and he would not need to repeat any fraudulent details in it as if they were true. He has not explained in any cogent way why, shortly after his arrival in Australia, he stated in writing and again during his interview of 16 October 2000 that his birth date was 19 April 1974, if this was untrue. 19. I am not satisfied that the birth date on the passport was other than Mr Maleki's correct birth date. 20. I also note the evidence from DFAT (2000) that Iranian airport officials are regularly picking up people with falsified passports. I infer from this that, if Mr Maleki's details were not correct on the passport and not consistent with his father's name (as recorded on the airport computer system), he would have been at least questioned about these inconsistencies by airport officials. He does not claim that this occurred. 21. For these reasons I am satisfied that Mr Maleki left Iran using a passport which contained the birth date 19 April 1974, that this was his real birth date and that it was the birth date included in official records relating to him in Iran. Political charge 22. Having found that Mr Maleki left Iran in his own identity, I have considered the plausibility of his claim that he was awaiting trial on a political charge at the time. 23. Firstly, during his Departmental interview of 28 October 2000 he stated that he got a new passport because the smuggler had told him it must have no "overstay stamps" in it. The interviewer put to him her understanding that, then, he did not get a new passport because of problems with the Iranian government. He responded only that he could not have used his own passport because "the government punishes overstayers". He did not refer to a fear of the authorities for any reason associated with his political opinion. His failure to do so casts serious doubt on his claim to have decided to leave Iran because he feared being tried on political charges. 24. Secondly, it is clear from all his written and oral statements to the Department and to this Tribunal that both his and the smuggler's sole reason for obtaining a new passport was to avoid penalties or problems arising from his having previously overstayed in another country. If, as was argued by Mr Maleki's solicitor, the smuggler had paid a bribe unbeknownst to Mr Maleki in order to ensure he could depart despite his political problems, it would follow that the smuggler and Mr Maleki must have discussed the fact that Mr Maleki was awaiting trial for political reasons in Iran. However Mr Maleki has not claimed that they did discuss it, and his evidence about their discussions indicates that the smuggler's only concern was to avoid problems associated with Mr Maleki's past overstaying in another country. 25. I have considered the evidence from independent sources that Iranians' passports are checked against computerised lists by the Ministry of Intelligence for political offences (U.K. Home Office, 2000, para. 7.19 and DFAT 2001). Having found that Mr Maleki exited Iran using a passport which correctly identified him, and as there is no evidence that a bribe was paid to circumvent normal checking procedures, I infer from his ability to leave unhindered that there was no record of any charge against him on Ministry of Intelligence records, nor was there any record that he had been detained on suspicion of membership of the MKO (if there had been any suggestion of the latter, the independent evidence referred to above makes clear that he would not have released from detention for much long, if at all, and that he would certainly have been prevented from leaving the country). 26. For the above reasons I consider highly implausible his claim that he was awaiting trial for political reasons at the time he left Iran in September 2000. I find that he was of no adverse interest to the Iranian authorities for the reason of his political opinion. His fear of Convention-related persecution arising from an incident in which he criticised leading political figures is not well-founded. 27. I find that he did not leave Iran illegally, and therefore that he has no well-founded fear of persecution because of his illegal departure from Tehran. 28. It was argued by his solicitor in a submission provided after the Tribunal hearing that, in part, Mr Maleki had a well-founded fear of persecution because of his application for asylum in Australia. Mr Maleki himself did not refer to this claim in any of his oral or written submissions. No evidence has been submitted to the Tribunal that the Iranian authorities have become aware that he has lodged such an application, and I am conscious that those applications are treated in strict confidence by all the relevant Australian authorities. Mr Maleki does not claim that, after he returned from some two years in Cyprus, the authorities suspected that he had applied for asylum there or imputed any dissident political views to him and there is nothing before me from which I might infer that they would treat him differently if he returned from Australia. Taking all these matters into account, I am not satisfied that the Iranian authorities are or might become aware that Mr Maleki has sought asylum in Australia. The chance is remote that he might face persecution for a Convention reason in Iran because of his application. 29. I accept that free expression of political opinion is not tolerated by senior elements within the Iranian security forces and judiciary. I also accept that Mr Maleki is not a supporter of the current political system in Iran. According to the evidence from DFAT (1996) and the U.S. State Department (2000), grumbling about the government is tolerated in Iran, expression of a diversity of views is increasingly allowed and even some members of the security forces want political reform. I am satisfied that Mr Maleki's views, which appear to amount to no more than "grumbling about the government", are typical of those which are tolerated in Iran today. I am also satisfied that he does not place such importance on the exercise of his right to express these views that such limitations as exist in Iran on opportunities to express them could reasonably be said to seriously offend any aspiration on his part which he considered to be integral to his dignity, and so amount to persecution. 30. As he has not made claims to fear persecution on any ground other than his political opinion, and no other Convention reason appears to apply to his claimed fear of persecution, I find that Mr Maleki does not have a fear of Convention-related persecution in Iran. CONCLUSION 31. Having considered the evidence as a whole, the Tribunal is not satisfied that Mr Maleki is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore he does not satisfy the criterion set out in s.36(2) of the Act for a protection visa." GROUNDS OF THE applicATION 4 The applicant does not appear to have had legal assistance in drafting the grounds of his application. They were as follows: "(1) Despite some clarification in regard to my departure from Iran illegally and providing some documents including copies of my own birth certificate and my father's which proves that I changed my family name and the date of birth but the member has not accepted this matter. (2) Having problem with the interpreter because she was not interpreting my clarification completely and also has made a mistake of interpreting some dates of my arrest and imprisonment, this matter has caused the RRT member to consider my case wrongly. (3) The member did not allow me to explain my problem completely because of the lack of time." 5 In view of the matters referred to in Grounds 2 and 3 above, on 3 July 2001 I issued a certificate to the applicant under Order 80 subrule 4(iii) of the Federal Court Rules so that he could obtain some legal assistance. The kind of legal assistance for which the order was made was: · to review (with the assistance of a suitably qualified interpreter) the tapes recording the proceedings before the Tribunal with a view to assessing Ground 2 of the application; · to review those tapes with a view to assessing Ground 3 of the application; · provision of legal advice (whether oral or written); and · if that advice was to the effect that the applicant had a reasonably arguable case, to amend documents filed in Court, prepare any appropriate documents and represent the applicant at the hearing of the application. 6 Ms Kerry Shannon of Messrs Ilberys, solicitors, was good enough to accept the referral on a pro bono publico basis. 7 At the hearing today Ms Shannon requested leave to cease acting. As there was some doubt about the appropriateness of the Court granting such leave, (as contrasted with the Registrar doing so) Ms Shannon withdrew that application and made some short submissions on the applicant's behalf. They were directed at what was said to be an error in paragraph numbered 2 of the Tribunal's reasons and set out above. my reasoning 8 In the slightly unusual circumstances of this case, and without intending any disrespect to Ms Shannon, I have in accordance with what is now well-established practice, scrutinised the Tribunal's reasons for reviewable error, whether in the form of error of law or jurisdictional error. 9 I have been unable to find any such error. 10 The Tribunal expressed strong doubts as to the plausibility of the applicant's claims about what he said took place on or about 22 July 2000 – the incident which started in the taxi on that day. It can be seen to have given its reasons in paragraphs which I have numbered 4 to 7 above. I note that it did not actually say that it disbelieved the applicant's evidence on this incident but, it said there was considerable reason to doubt that he was detained under the circumstances which he described. 11 I do not think that the Tribunal made any reviewable error in paragraph numbered 2 of its reasons set out above. The fact was that in the statutory declaration the date was given as June 2000. That may well have been an error on the part of the solicitor who prepared that document, or it may have been an interpreting error. In any event nothing turns on this, in my view, because the Tribunal gave the applicant the benefit of what it saw as a doubt. It approached the matter on the basis that the incident, if it happened, occurred on or about 22 July 2000. 12 As to the applicant's claims to have departed from Iran on a passport in which a date of birth and name appeared which were different to his actual date of birth and name, it can be seen that the Tribunal was expressly not satisfied that the claim was true (see paragraph numbered 10 above). It then proceeded to give its reasons in paragraphs 11 to 21. 13 The Tribunal then considered the applicant's claim that he was awaiting trial on a political charge at the time when he left Iran. At paragraph 26 of its reasons the Tribunal can be seen to have rejected this claim. It gave its reasons for doing so between paragraphs 22 and 30. 14 In summary, the Tribunal rejected the applicant's claims to be entitled to refugee status, on the basis that it did not believe his claims. In my view, it was quite clearly open to the Tribunal to reach such a conclusion on the evidence which was before it. 15 I can find no reviewable error on the Tribunal's part in this matter whether error of law or jurisdictional error or any other error upon which the Tribunal's decision should be set aside. Conclusion 16 For the foregoing reasons the application will be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr . A/g Associate: Dated: 6 August 2001 Counsel for the Applicant: Ms K Shannon Solicitor for the Applicant: Messrs Ilberys Counsel for the Respondent: Ms L Price Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 6 August 2001 Date of Judgment: 6 August 2001