W50/2001 v Minister for Immigration & Multicultural Affairs [2001] FCA 1305

FEDERAL COURT OF AUSTRALIA

W50/2001 v Minister for Immigration & Multicultural Affairs [2001] FCA 1305

Migration Act 1958 (Cth) Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 applied Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 referred to W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679 referred to W50/2001 v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 50 OF 2001 HELY J 13 SEPTEMBER 2001 SYDNEY (HEARD IN PERTH)

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 50 OF 2001

BETWEEN: W50/2001

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 13 SEPTEMBER 2001

WHERE MADE: SYDNEY (HEARD IN PERTH)

THE COURT ORDERS THAT: 1. The application be dismissed with costs. 2. The applicant be referred to only as W50/2001. 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 50 OF 2001

BETWEEN: W50/2001

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE: 13 SEPTEMBER 2001

PLACE: SYDNEY (HEARD IN PERTH)

REASONS FOR JUDGMENT 1 This is an application under Part 8 of the Migration Act 1958 (Cth) ("the Act") seeking a review of a decision of the Refugee Review Tribunal ("RRT") given on 12 February 2001. By that decision RRT affirmed the decision of the Minister's delegate not to grant a protection visa to the applicant. 2 RRT construed the application for a protection visa as being based upon two grounds: - the applicant is a member of a particular social group (his family) which had been persecuted in the past due to their perceived opposition to the fundamentalist Islamic regime arising from his father's involvement with the Shah; - the applicant feared persecution because of an imputed political opinion due to his involvement in helping groups opposed to that regime. 3 RRT rejected each of these claims. Its rejection of the first ground is not challenged by the amended grounds of application for review. The grounds of review are confined to the second basis on which the claim to refugee status was sought to be established. It was the applicant's contention that his claim to refugee status was confined to the second ground; matters relating to his father merely formed part of the background. 4 Shortly stated, the applicant's claim was that his father acted as a go-between between the applicant and a small group of pro-Shah people, as a result of which the applicant agreed to do repair work on their vehicles for which he received substantial payment. In about August 2000 the Basiji , an intelligence group supporting Etelaat, passed the applicant's car repair shop, and noticed that a car which was in for repairs had bullet holes in its back panel. The applicant realised that his "affair was disclosed". He decided to escape from Iran, which he did with the assistance of a smuggler who procured a "false Iranian passport" for him. 5 Prior to his departure, the applicant went into hiding and was told that his parents and brother had been detained. He later learnt that his mother and brother had been released, but not his father. The applicant suspected that his father's friends, who brought cars to the workshop, were "possibly with the Mudjahadeen, although they had never told him this 'directly'". 6 The applicant was informed by his mother, after he left Tehran, that his father was still detained, that their house had been searched and that the authorities had told his mother that the applicant was a "Mudjahadeen and a terrorist and anti-government". 7 RRT expressed its conclusions in this way: "I consider that (the applicant's) claim that he assisted the MKO or any opposition group in the ways he claims is implausible, and I am not satisfied that he did so. Therefore his other claims must fail as to the events that flowed from that assistance. I am not satisfied that members of the basiji became suspicious of him, that he went into hiding, that he left Iran using another person's passport in order to avoid security checks, that his home was searched or that his family members were then detained because of a political opinion imputed to him." 8 Counsel for the applicant, Mr Cameron, submits that in the first of the passages quoted RRT fails to come to grips with the gravamen of the applicant's claim that he fears persecution because of an imputed political belief arising from the perception by the authorities that he has some association with MKO. If the authorities had that perception it could not seriously be in contest that the applicant would have a well-founded fear of persecution. In Mr Cameron's submission, a finding by RRT that the applicant did not assist MKO or any opposition group in the way he claims fails to address the real question, which is whether the authorities suspected him of affording that assistance. 9 The findings referred to in the second of the passages quoted above are purely consequential, rather than the product of independent consideration as to the truth or otherwise of those claims. In Mr Cameron's submission, the finding that the applicant did not assist the MKO does not lead to the conclusion, for example, that he did not have a subjective fear of persecution which led him to go into hiding and to leave Iran on a false passport, because those matters may well have occurred if the applicant knew that the authorities suspected him of involvement with the MKO, even though that suspicion was without factual foundation. 10 Mr Cameron's argument had an initial attraction, but it is one which evaporated on re-reading RRT's decision. In substance, and on a fair reading of its decision, RRT found that the applicant was not engaged in repairing cars with bullet holes in them for the MKO or any other opposition group. The proposition that the authorities suspected that the applicant was so involved has its foundation in the claim that members of the Basiji discovered that the applicant was engaged in repairing cars with bullet holes in them. If that is not accepted, as it was not, then all else falls away. The applicant's case as to an imputed political opinion was grounded, and only grounded, upon the fact that he was engaged in the repair of bullet-ridden cars. 11 I turn then to consider the specific grounds on which review is sought.