Nejad v Minister for Immigration & Multicultural Affairs [2001] FCA 1399

FEDERAL COURT OF AUSTRALIA

Nejad v Minister for Immigration & Multicultural Affairs [2001] FCA 1399

ASHKAN AGDAR NEJAD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS S67 of 2001 FINN J ADELAIDE 28 SEPTEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S67 OF 2001

BETWEEN: ASHKAN AGDAR NEJAD

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: FINN J

DATE OF ORDER: 28 SEPTEMBER 2001

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application be 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

SOUTH AUSTRALIA DISTRICT REGISTRY S67 OF 2001

BETWEEN: ASHKAN AGDAR NEJAD

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: FINN J

DATE: 28 SEPTEMBER 2001

PLACE: ADELAIDE

EX TEMPORE REASONS FOR JUDGMENT 1 The applicant, Ashkan Agdar Nejad, is an Iranian national, whose application under the Migration Act 1958 (Cth) ("the Migration Act") for a protection visa was refused by the Refugee Review Tribunal ("the Tribunal"). The claims he put to sustain his application involved a series of unrelated events, resulting in contacts with, and alleged detentions by, the Iranian authorities. These were rejected by the Tribunal as being variously implausible, inconsistent with country information or as being insufficient to give rise to a well-founded fear of persecution. He now applies to this Court for an order of review. 2 While he had legal advice in the preparation of his application to the Tribunal such was not the case with his present application, at which he appeared in person. Mr Nejad has understandably identified no ground of review in his application. He merely asks the Court to examine the decision for any legal errors. I have explained to him both the role of a judge in adjudicating a dispute between parties and the basis upon which this court could interfere with the Tribunal's decision. 3 As to the latter, I explained to Mr Nejad that this Court can only set aside a decision of the Tribunal if a ground set out in section 476(1) of the Migration Act is established. Those grounds do not allow the Court to interfere with the Tribunal's decision simply because the Tribunal has taken a particular view of the facts of his case with which this Court might disagree. As Kenny J commented in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 257: "A Tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis or because it adopts unsound or questionable reasoning." 4 Importantly, this Court cannot change a decision of the Tribunal even if it thinks the Tribunal was wrong on the facts: see Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426. The Tribunal does not have to have rebutting evidence available before it can lawfully hold that a particular factual assertion is not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348. Likewise, illogical reasoning will not provide a ground of review: see Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565. Finally, the Tribunal does not in its statement of reasons have to provide a line-by-line response to an applicant's case:see Re Minister Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407. 5 Mr Nejad did address the court today. Apart from referring to two matters, which I will mention at the end of these reasons, what he had to say was, for the most part, related to the raising of new matters not before the Tribunal (for example, he now claims he has converted to Christianity though the documentation in the court book consistently says he is a Shiite Muslim) or what he had to say involved enlarging upon material before the Tribunal (for example in relation to demonstrations in the town of Haftgel). 6 I explained to him again that I could not receive new evidence in support of his claim but was limited to considering the decision of the Tribunal on the material before it. Before turning to a consideration of the Tribunal's decision I think it appropriate to say that that part concerned with "findings and reasons" is structured in a way that is calculated to impede rather than promote understanding. Having said this, the reasons themselves are unassailable, as such, and, as I will indicate, they do not betray an error of a type that would attract a ground of review under section 476(1) of the Migration Act.