Applicant A v Minister for Immigration & Multicultural Affairs [2001] FCA 1541

The applicant's claims and the Tribunal's decision 2 The applicant's claims before the Tribunal were as follows: · He was born in Teheran and is a Shia Muslim. · He attended senior high school until mid 1999, when he was 18 years old. · During his last year of secondary education he discussed his political views with other students and his mathematics teacher. He criticised the regime for unemployment, corruption, drug addiction and the disappearance of activist students. · There was an organisation of students known as the "Basiji" at the school, which spied on other students and informed the authorities of dissident opinions. The Basiji were supported by another group known as the Islamic Association. · The applicant believed that his teacher was an intelligence agent who encouraged students to criticise the government, in order to expose dissidents. · As a response to his criticisms, he was invited to join the Basiji, but refused to co‑operate. · He was harassed and in March 1999 abused by the Basiji for wearing tight jeans. Three of them beat him. They reported him to the Ministry of Information and falsely accused him of starting the fight and being a member of an anti-government group. He was detained at the Ministry of Information for about six hours and beaten, as a result of which he suffered permanent damage to his ear-drum. · His father, who is a police colonel, arranged his release on condition that he did not participate in anti-government activities and would spy on other students. · He was absent from school for a while, then returned to finish the term and complete his exams in August 1999. · He was subsequently exempted from military service as a consequence of his hearing loss. · Because he was not subject to military service, he was able to obtain a passport which he received in September 2000, although at the hearing before the Tribunal he said he obtained the passport 4 or 5 months before he left Iran. He explained to the Tribunal that he could not use it immediately as he had to make some arrangements. · He claimed to have very strong political views, but contained them. He did not wish to attend public prayers or grow a beard but he even changed his clothes and appearance to avoid attention from the pro-government militia and pretended he was co-operating with the government. · He told the respondent that for his own benefit and for the benefit of other members of his family, he did not express his anti-government views. In particular he did not want to compromise his father's position in the Police Force. · He kept up his pretence of co-operating with the government until he escaped from Iran in November 2000. · However, his father was concerned that he (the applicant) would not be able to contain his views further and advised him to leave Iran in November 2000. He escaped from Iran because he did not want to be pressured into becoming a terrorist for the Basiji, killing other Iranians, raiding their houses and so on. · He did not know what had happened to his father. His mother had not told him anything about his father, except that some time ago she had informed him that his father had been taken away. She told him this before the applicant's interview with the respondent's delegate. When the Tribunal pointed out that this was a significant aspect of his claims which had been omitted from each of his submissions until the hearing, the applicant said that he did not trust the lawyer allocated to him by the government. · He would not have left a comfortable life and his family if he were not a refugee. He fears that he will be punished as a spy because he failed to co-operate with government agents and believes that he will have to follow the rules and suppress his political opinions if he returns to Iran or he will be punished by the Basiji and the Sepah (revolutionary guards) or killed by the government. 3 In its reasons the Tribunal set out the background of the matter and summarised the applicant's claims. It then turned to the legislative framework and reviewed some of the leading authorities in relation to assessment of refugee claims. 4 The Tribunal then set out its findings, reasoning and decision in the following terms. I have numbered those paragraphs to facilitate reference to them below. "DISCUSSION AND FINDINGS: 1. The Tribunal accepts that the Applicant is a national of Iran. He satisfies the element of the definition of refugee that requires he be outside his country of nationality. 2. It also accepts that he was outspoken at school and was beaten by three members of the Basiji in March 1999, and that he was subsequently detained by Iranian authorities for six hours, during which he was beaten and suffered a serious hearing impairment. It accepts that his father used his influence as a Police Colonel to arrange the Applicant's release. 3. The Applicant returned to school after his health improved and he passed his final year exams six months after he had been released from detention. He said he pretended to co-operate with the Basiji, but did not take part in any activities against other Iranian citizens. He kept his opinions to himself for his own safety, and that of family members. He was particularly mindful of protecting his father's position. The Applicant now says he believes the maths teacher was an agent provocateur. Clearly, he did not believe that at the time, as his subsequent conduct demonstrates he would not have taken the invitation to express his views if he knew that might lead to difficulties. 4. He remained in Iran for eighteen months after his release without being harassed. Somewhere between two and five months before he left (depending on which submission refers), he obtained a passport. That is, he waited for a minimum of more than a year before he obtained a passport, and then delayed its use for a significant period. The delay in obtaining a passport, and then between obtaining the passport and leaving the country in order to make appropriate arrangements, is not compatible with holding a genuine fear of persecution. Eventually, he left the country legally, through the Tehran airport, without encountering difficulties. The fact that he obtained the passport and left without problems is strong evidence that he had passed the security vetting that accompanies exit procedures and was of no adverse interest to Iranian authorities. 5. The Tribunal accepts that the Applicant was detained and beaten in March 1999. While he expressed criticism of the government in class, that did not attract adverse attention other than unwanted invitations to join the Basiji. The Tribunal is satisfied that the incident in March 1999 was an isolated incident that arose from a dispute he had with three Basiji over the clothes he was wearing and a fight that followed. His father resolved it on the day it occurred and the Applicant did not encounter any more problems over the ensuing eighteen months or so. In the meantime he was able to complete his secondary education and sought the protection of the Iranian government in the sense that he obtained a passport. Then he left the country without difficulty. Although he now claims that he will be detained at the airport on return because he will be suspected as a spy, that did not occur when he left, some eighteen months after the incident that he says gave rise to that suspicion. In all of the circumstances, the Tribunal concludes that the Iranian authorities had no adverse interest in the Applicant when he left the country. Any fears of persecution he harboured at that time were ill-founded, as there was not a real chance they would be realised. 6. The Applicant claims that new circumstances have emerged since his departure that both support his claim that he left because he is a refugee and give rise to claims that he has become a refugee sur place. He told the Tribunal that his father has been taken away and he does not know what happened to him. He initially claimed at the hearing that he was concerned because his mother had not told him anything at all about his father. Later he added that she told him his father had been taken away but had not subsequently mentioned what had happened to him. It is an account that does not sit comfortably with his father's position as a police colonel, his capacity to successfully intervene when the Applicant was detained and the lack of any action against him while the Applicant remain in Iran. The Tribunal does not accept his explanation that he only disclosed his father's disappearance at the hearing because he did not trust his lawyer. He had ample opportunity to bring it to the attention of his lawyer, whom he said he had consulted three weeks before the hearing. Even if he was tired at the time of consultation, he still gave the instructions that resulted in written review submissions, which the Applicant told the Tribunal he had read and understood. His willingness to instruct his solicitor is at odds with his claim that he withheld information because he did not trust that person. Despite discussing his case with his adviser, he did not correct what is a glaring omission from his argument that he is wanted in Iran, the disappearance of his father. In all of the circumstances, the Tribunal is satisfied that his father's disappearance is not mentioned in the submissions because he has not disappeared. It does not accept that his father has been harassed since the Applicant left Iran. 7. The Applicant agrees that he did not leave the country illegally and the Tribunal finds that he does not face persecution for that reason. The 'illegal expatriate' submission in the written review submissions relates to illegal departure from the country and does not accord with the Applicant's legal departure. It appears that his adviser has taken licence to add that claim. 8. The Applicant adds that his "sudden departure and application for refugee status in Australia" are likely to lead to persecution. His departure was not sudden, as he had his passport for at least two month (sic) before he left Iran. Nor was he detained at the airport on departure, as might be expected if his "sudden departure" is a reason for suspicion. In regard to seeking asylum, the Research Directorate of the Immigration and Refugee Board of Canada, has investigated the issue and reported in July 1999 that: "CIC [Citizenship and Immigration Canada] officials in Iran have seen no evidence that failed claimants, persons who have illegally exited Iran, or deportees face any significant problem upon return to Iran. Several times in the recent past, senior government officials have declared that all Iranians living abroad are welcome to return home without fear of reprisal... and the Foreign Ministry's Consular Department has confirmed that applying for asylum abroad is not an offence in Iran." 9. The application for asylum is strictly confidential although there is a possibility that it might become known because, for instance, the Applicant is unable to retrieve his passport and will be questioned on return. He has not been an activist in Australia and, while he aired some criticism of the regime at school, he has had no alignment with any dissident political movements or parties and, indeed, co-operated with the Basiji after his detention in 1999. The Tribunal finds that he has no profile with the Iranian authorities as a dissident (as referred to at pp. 7-8 of the written review submissions) and it is not satisfied that disclosure of an asylum application would lead to persecution by his government on his return. The application for asylum, as reported above, is not an offence and, in the context of the Applicant's case, even if he is questioned on return, the Tribunal is not satisfied his application would be viewed as a political act. He also has his father to vouch for him. The Tribunal is not satisfied there is a real chance that he would encounter persecution as a consequence of his refugee application. 10. The Applicant has referred to information that Iran has a bad human rights record and a flawed legal system. The Tribunal has concluded his human rights were abused by the authorities in an isolated incident in 1999. It is not satisfied that there is a real chance of a further breach of his rights in the reasonably foreseeable future. While the legal system may be flawed, it is not satisfied that he will become embroiled in that system on his return. It has considered the claim that the Applicant would not leave his family and country if he were not a refugee. It recognises that he misses his family and has been surprised and disturbed to find himself in immigration detention. However, it also recognises that there are many and varied reasons for people to seek to migrate to other countries and, as discussed above, is not satisfied that the Applicant left Iran because he is a refugee. 11. In all of the circumstances, the Tribunal concludes there is not a real chance that the harm the Applicant fears might be realised if he returns to Iran. It is not satisfied that he has any well founded fears of persecution for Convention reasons and, therefore, is not satisfied that he is a person to whom Australia has protection obligations. It finds that he does not meet that criterion for the purposes of the grant of a protection visa. DECISION: 12. The Tribunal affirms the decision not to grant a protection visa to the Applicant.