Nozarpour v Minister for Immigration & Multicultural Affairs [2001] FCA 1249

FEDERAL COURT OF AUSTRALIA

Nozarpour v Minister for Immigration & Multicultural Affairs [2001] FCA 1249 SHAHRAM NOZARPOUR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 66 OF 2001 EMMETT J 2 AUGUST 2001 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 66 OF 2001

BETWEEN: SHAHRAM NOZARPOUR

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 2 AUGUST 2001

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs of the proceeding.

3. Orders 1 and 2 be stayed up to and including 7 September 2000 or such later date as the Court may direct.

4. The applicant file and serve any further submissions on which he wishes to rely no later than 2001.

5. The respondent file and serve any written submissions in response no later than 6 September 2001.

6. The matter be listed for directions on 7 September 2001.

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 66 OF 2001

BETWEEN: SHAHRAM NOZARPOUR

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 2 AUGUST 2001

PLACE: PERTH

REASONS FOR JUDGMENT 1 The applicant, who is a citizen of Iran, arrived in Australia on 1 November 2000. On 16 November 2000, he lodged an application for a Protection (Class XA) visa with the Department of Immigration and Multicultural Affairs. On 20 December 2000, a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), refused to grant a protection visa. On 21 December 2000, the applicant applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision and on 22 February 2001 the Tribunal affirmed the decision not to grant a protection visa. On 9 March 2001, the applicant filed an application to this Court for an order of review of the Tribunal's decision. 2 The matter was listed for hearing today before me. The applicant is presently being held in detention and the hearing was by video link. The applicant was unrepresented and speaks very little English. However, the applicant was assisted by a Farsi interpreter. The applicant had been assigned legal assistance under the Court's pro bono scheme. However, the barrister assigned under the scheme was given leave to withdraw on 19 July 2001. When the matter was called on for hearing, the applicant sought an adjournment of the hearing. 3 On 12 July 2001, the applicant sent a letter to the Court by facsimile asking that his barrister be informed that the applicant would like to postpone the date of the hearing in order to make further inquiries. On the same day the Court received a communication from the office of Messrs Dominic David Stamfords, solicitors, in Fairfield, New South Wales ("the Solicitors"). It appears that the Solicitors had been consulted by relatives of the applicant in Sydney. The letter sought information concerning the legal representation for the applicant. On 18 July 2001, an officer of the Court spoke to the Solicitors and informed them that the barrister assigned, Mr Graham Rabe, had requested to be taken off the record as pro bono counsel assisting in the matter. There then followed several communications between the Solicitors, the Court and the applicant concerning adjournment of the hearing fixed for today. The applicant informed me that he had spoken to Mr Henry Christie, barrister, about the possibility of representation, but that Mr Christie was unable to assist him. 4 I accept the difficulties that must be involved when the applicant is in detention some considerable distance from Perth. I am not satisfied that this is an appropriate case for adjournment at this stage. However, I am concerned that the applicant was put in a position where counsel assigned to him withdrew, albeit that the withdrawal was in enough time to enable the applicant to obtain alternative representation. 5 Having read the reasons of the Tribunal and the submissions on behalf of the Minister and having heard the applicant's contentions, I have formed a provisional view as to the outcome of the application. I therefore propose to give my reasons for reaching the conclusions that I have reached, but to give the applicant an opportunity to make further submissions if he wishes before I finally dispose of the proceeding. 6 The Tribunal in its reasons summarised the claims made by the applicant in his application for a protection visa. The applicant is a 28 year old male citizen of Iran. He is a Shi'a Muslim who left Iran and arrived in Australia, undocumented, via Pakistan, Malaysia and Indonesia. The Tribunal was satisfied that the applicant is an Iranian citizen. The essence of his claims is that he fears to return to Iran because of his political opinion and his illegal departure. 7 The Tribunal examined the successive versions of the applicant's claims and found that his description of events and motivations for certain actions were not consistent. The Tribunal was not satisfied that the applicant has any political profile or that, if he does have one, it was sufficient to engage the interest of the Iranian authorities. The Tribunal noted that the reasons adduced by the applicant for having come to the attention of the authorities varied from the following: · being present at demonstrations in Teheran in July 1999, · being a member of a group called Marz-e Pogohar, · being associated with a person called Farahaniepour, · belonging to the Nehzat Azadi, (a claim made by the applicant's advisers), and · being a writer of leaflets and other material for a university newsletter.