Applicant G v Minister for Immigration & Multicultural Affairs [2001] FCA 1507

FEDERAL COURT OF AUSTRALIA

Applicant G v Minister for Immigration & Multicultural Affairs [2001] FCA 1507

APPLICANT G v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 204 of 2001 CARR J 26 OCTOBER 2001 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 204 of 2001

BETWEEN: APPLICANT G

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: CARR J

DATE OF ORDER: 26 OCTOBER 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 204 of 2001

BETWEEN: APPLICANT G

Applicant

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

Respondent

JUDGE: CARR J

DATE: 26 OCTOBER 2001

PLACE: PERTH

REASONS FOR JUDGMENT

introduction 1 This is an application (filed on 1 June 2001) for an order of review of a decision of the Refugee Review Tribunal, made on 21 May 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 January 2001. On 26 January 2001 the applicant lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 ("the Act"). On 6 March 2001 a delegate of the respondent refused to grant a protection visa and on 9 March 2001 the applicant applied 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 was born in Abadan, Khozestan, Iran. He is of the Lor ethnic group. He is a Shi'a Muslim and is 20 years of age; · that he and a close friend had taken part in a demonstration in Abadan on 5 July 2000, regarding the low quality of the drinking water supply. The applicant said that the demonstration had become violent and property had been destroyed; · his friend had been arrested, soon after the demonstration, by governmental security officers, but the applicant had avoided arrest by going to Isfahan; · he had subsequently learned from his father that the authorities had been to his home with a photograph of the applicant and had asked his father if he knew the person in the photograph; · he left Iran, through Teheran airport, travelling on his own recently-issued Iranian passport; · he claimed refugee status on the basis that, if returned to Iran, he faced a real chance of persecution by reason of imputed political opinion. 3 Rather than attempt to summarise the Tribunal's findings and reasons, I shall set them out below in full. I have added paragraph numbers to facilitate references, which I make below, to parts of those findings and reasons. FINDINGS AND REASONS 1. The Applicant claims to face harm amounting to persecution for reasons of his involvement in a demonstration against the state of the water in his area. 2. If he did face harm for that reason then it could be taken that the harm was for reason of his political opinion. 3. In determining this matter I have considered the Applicant's claims over the period of the application, I have also considered the DFAT advice on the situation in regard to the Abadan demonstrations. 4. I have also taken account of the Applicant's ability to leave Iran using a passport in his own name and with his own details. The Applicant's Profile 5. The Applicant has stated, and I accept, that he has not been involved in any political activity against any political organisation or government with the exception of his claimed involvement in the Abadan water demonstrations of July 2000. 6. Although he claimed to the departmental officer that one of his brothers had gone to England and been granted refugee status there he resiled from this claim at the Tribunal hearing and said that he didn't know what his brother's status in England was but that he had gone there as a student, assisted by an agent in Iran. 7. When the Applicant's claims have been considered as a whole I find that neither he, nor any member of his family has a political history which would be adverse to him. 8. The question which remains is whether his claimed attendance at the Abadan water demonstration in July 2000 would, as he has claimed, mean that there is a "real chance" that he could face persecution. The Abadan Water Demonstrations 9. The independent material in a Reuters Report held at CX50254 advises that: Source: Vision of the Islamic Republic of Iran Network 1, Tehran, in Persian 0930 gmt 5 Jul 00 Excerpts from report by Iranian TV on 5th July A group of the residents of the town of Abadan today gathered outside the Governor's Office, as the problem of water salinity in the town has intensified with the rise in temperatures. Protesting against the current state of drinking water in the town, the participants in the gathering called on the authorities to remedy this problem as soon as possible. As the rally continued, the Law Enforcement Force called on the protesters to disperse. A group of protesters resorted to breaking windows and setting fire to tyres. In this connection, it has been announced that the relevant authorities are looking into the issue and that the results of the investigation will be announced later. We have established direct telephone contact with Mr Manuchehri, the deputy energy minister. I would like Mr Manuchehri to talk about this issue and the measures taken by the Energy Ministry in this regard. [Manuchehri] In the name of God, the Merciful, the Compassionate. Greetings to you and to the dear viewers. As you are aware, there has been a drought in the country since last winter. A number of measures were adopted then to tackle the consequences of the drought in the country. The problem in Khorramshahr and Abadan is in fact the water salinity or the increase in level of water [word indistinct] which stems from a drop in water discharge into Karun River, as well as the drainage of sugarcane projects along the river… In the past two days unfortunately water salinity has increased suddenly and has reached a figure of 7,000 part per million or more. The town's water network has practically become unfit for consumption. Naturally, the population of Khorramshahr and Abadan, which number about 300,000, rushed to fresh water stations, causing a disruption in the distribution of drinking water. Water has to be transported to the region in huge quantities. At present, the capacity of our transport fleet is 500,000 litres and is not enough for a population of 300,000. We have been in contact with the railways, which transport water from Andimeshk for a distance of 200 km, to provide more tankers to transport water to this region. According to the latest news there is enough water in the tankers and reservoirs and there are no problems. We hope to meet people's demands quickly and the government will carry out its responsibility in this regard. [Q] Mr Manuchehri, is there any hope that this problems will be resolved as soon as possible? [A] As I have said, today there were sufficient quantities of water in the reservoirs and we intended to increase our capacity from 500,000 litres to 1m litres. The last point I wanted to mention is that drought is a serious phenomenon and our entire region is gripped by drought this year .The transportation of water in view of the volume involved is not easy. The transportation of lm litres of water for a distance of 200 km in the conditions of Khuzestan require serious planning. In any case we are making every effort and hope the people will show understanding and this problem will be completely resolved in the next two to three days... 10. The Applicant's account, the DFAT cable and the FAO report all state that the demonstrations were violent and there were attacks and destruction of property. 11. In such a situation is understandable that any responsible government law enforcement agency would take action and arrest those responsible. 12. DFAT advises that two hundred and thirty people were arrested at that time and the motivation for the arrests was for "transgressions against private and government property and assets." That report goes on to state that of the two hundred and thirty arrested approximately thirty individuals with prior criminal convictions were remaining in custody. 13. I accept this evidence and, accordingly find that those people who were arrested were detained for reasons of causing damage to public property and not, for participation in demonstrations. 14. By the Applicant's own account government property and assets were targeted by the demonstrators. 15. In regard to his own involvement, he initially stated that he had been present in the demonstration as an ordinary participant and that, together with others, he had shouted slogans. 16. At the Tribunal hearing he claimed, for the first time, he had torn the heads off of printed posters of senior government officials. 17. I reject this claim and find it was made at the eleventh hour solely to enhance his otherwise inoffensive profile as a normal participant. In rejecting this claim I have taken into account that the Applicant has had the services of a professional solicitor and has been interviewed on a number of occasions prior to the Tribunal hearing. If he had done something of this nature and believed that it would place him at serious risk of harm he would have raised this claim before. 18. I accept the independent material to the effect that those who were at risk were those who had damaged government property and who had previous criminal records. 19. As the Applicant participated as a normal participant I find that he does not face a "real chance" of persecution for reasons of that participation. 20. The Applicant has claimed that his father and neighbours were shown a photograph of himself and asked if they could identify him. 21. He claimed that he went into "hiding" at the home of a relative. 22. He claimed in writing and to the delegate that he had been in hiding for two months immediately after the demonstration which was early in July. That would mean that he was in hiding until early September. However, he claimed, in his application for a protection visa that he had left Iran on 11 October 2000. 23. When I put to him that there was an unexplained period of a month the Applicant responded by saying that he had only given an approximate period of his time in Isfahan (in hiding). Given that he had the services of a professional solicitor, and for reasons discussed below, I find that this discrepancy exists because the Applicant was not in hiding as he claimed. The Applicant's Passport 24. The Applicant departed from Iran using his own passport, issued in his own name. 25. In his application for a protection visa he stated that the passport was issued in Abadan on 9 October 2000, a month prior to his departure. This is consistent with his statement to the delegate that he obtained the passport shortly before his departure. 26. However, at the Tribunal hearing he claimed that the passport had been issued to him prior to the demonstration in July. 27. I accept that he applied for the passport prior to the demonstration but, find that the passport was not issued until shortly before his departure and that it was issued in Abadan. 28. The Applicant claimed that when the authorities showed photographs of him they had not identified him. However, if as he claimed they were in his neighbourhood then I do not accept that they would have failed to identify him by October when the passport was issued. 29. I do not accept that the authorities in his home area would have issued a passport to the Applicant if, as he claimed, the law enforcement or intelligence authorities were looking for him. 30. The Applicant claimed that the friend he went to the demonstration with was arrested. 31. While I have doubts in regard to whether or not that did occur, even if it did, I do not accept that the authorities were concerned in regard to the Applicant. 32. As discussed above his passport was issued in this period, by the authorities in Abadan where he lived and where the demonstration occurred. 33. Furthermore, I do not accept his account that the authorities were unable to identify him using a photograph and asking people in his neighbourhood. 34. Finally, if he was of concern, I do not accept that he would have been able to leave the country using that passport and travelling in his own name. 35. Accordingly, and in line with my findings in regard to these issues, I find even if his friend was arrested as he claimed, there were no adverse consequences for the Applicant and there are no prospective adverse consequences. The Applicant's Departure 36. The Applicant claimed that he was able to go through the airport because the wife of the agent he used removed his name from a black list. 37. When I put the independent material to the Applicant and informed him that this led me to believe an official would not take the risk of removing a name from the black list he agreed that his name probably was not on a black list at that time, but said he believed it would be now. 38. I do not accept this claim and find it to be fanciful speculation at best. 39. If the authorities had not included his name on a black list in November, four months after the demonstration I do not accept that they would do so at a later date since there was no other incident or any further action by the Applicant to trigger such a course of action. 40. I accept the independent material which advises that there are checks made of people leaving Iran and find that the Applicant left Iran openly, using a passport in his own name and with accurate personal details . 41. I further find that he was able to do this because he was of no adverse interest to the authorities. 42. The Applicant has claimed that the authorities will suspect that he is associated with the Mujahadeen. 43. Since I have found that the authorities have no adverse interest in the Applicant whose political act, by his own account, was an involvement in one demonstration in his own area I find that his claim to be suspected of association with the Mujahadeen is speculative and without foundation. Consequences of return 44. I have considered the Applicant's case as a whole and find that he was not of concern to the authorities prior to his departure in November 2000. 45. I have considered the independent material which I discussed with the Applicant and find that he could voluntarily return to Iran without any difficulty. 46. Even if he were returned involuntarily I accept the independent material before me, cited above, and find that although he may be questioned he would not face a "real chance" of persecution for a Convention reason. 47. Accordingly, I find that the Applicant does not face a "real chance" of persecution in Iran if he returned there now or in the reasonably foreseeable future and therefore any fear he may hold in this regard is not well founded. CONCLUSION: 48. Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.