FEDERAL COURT OF AUSTRALIA Applicant A v Minister for Immigration & Multicultural Affairs [2001] FCA 1541 APPLICANT A v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 162 of 2001 CARR J 1 NOVEMBER 2001 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W162 OF 2001 BETWEEN: APPLICANT A Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: CARR J DATE OF ORDER: 1 NOVEMBER 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 W162 OF 2001 BETWEEN: APPLICANT A Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: CARR J DATE: 1 NOVEMBER 2001 PLACE: PERTH REASONS FOR JUDGMENT introduction 1 This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 10 April 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 national of Iran, arrived in Australia illegally on 20 December 2000. His evidence was that he departed from Iran via Teheran Airport on his own passport which he had handed to the people smuggler who arranged his travel to this country, eventually from Indonesia. On 9 January 2001 the applicant applied for a protection visa. On 13 February 2001 a delegate of the respondent refused to grant him a protection visa. On 16 February 2001 the applicant sought review of the delegate's decision by the Refugee Review Tribunal. 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. GROUNDS OF THE application 5 The applicant filed his application in person. The grounds stated in that document were as follows: "There was no evidence or other material to justify the making of the decision that the applicant did not have a well-founded fear of persecution by reason of his political opinion real or imputed if he returned to Iran within the reasonably foreseeable future. The decision involved an error of law being an error of law involving the incorrect interpretation the applicable law of (sic) an incorrect application of the law to the facts as found by the Tribunal or both." 6 In his application the applicant claims costs, such further or other orders as the Court sees fit and interlocutory relief restraining the respondent from causing or permitting his removal from Australia. The application was treated as if it had included an application for an order setting aside the Tribunal's decision. 7 As the applicant was unrepresented, I have scrutinised the Tribunal's reasons to see whether they disclose any reviewable error including any jurisdictional error. I have also listened to oral submissions made by the applicant. 8 The applicant complained that during the hearing of his application before the Tribunal, the member of the Tribunal ignored him completely, started drawing on a piece of paper and did not bother to listen to him. He said that it looked as though the Tribunal had made up its mind about its decision without listening. 9 In my view, the Tribunal's reasons, in themselves, show that it did pay attention to what the applicant said to it including his claim that his father had been taken away by Iranian authorities and he did not know what had happened to him (see paragraph numbered 6 of the Tribunal's reasons). 10 At the hearing on 1 August 2001 the applicant produced a letter which he said was from his mother in Iran. I shall refer to that letter as "the Letter". The Letter was in the Farsi language. The envelope in which it was contained was sent by registered post from Teheran and was postmarked on the front and the back with the date 18 June 2001. 11 The applicant sought to tender the Letter as proof that his father had vanished. 12 The hearing was adjourned so that the letter could be translated into English. I also referred the applicant for legal assistance under Order 80 of the Federal Court Rules. The legal assistance was to review the reasons for decision of the Refugee Review Tribunal and a translation of the Letter, and to provide legal advice (whether oral or written). Subject to that advice being to the effect that the applicant had a reasonably arguable case, the reference extended to legal assistance in the form of amendment of documents filed in Court, preparation of any appropriate documents and representation at the resumed hearing of the application. 13 A legal practitioner accepted the reference, but subsequently found that there was a conflict of interest. The District Registrar has not been able to find a substitute lawyer to assist the applicant. 14 At the resumed hearing on 30 October 2001 the respondent raised no objection to the Letter being received into evidence in the application. I decided to approach the matter on the basis that the applicant was putting forward, as part of his first abovementioned ground, a submission that the Tribunal based its decision on the existence of particular facts, and that those facts did not exist i.e. in reliance upon s 476(4)(b) of the Migration Act 1968 (Cth) ("the Act"). The particular facts were that the applicant's father had been harassed since the applicant left Iran and had, after being taken away by the Iranian authorities, disappeared. 15 As was recently pointed out in the Full Court decision of Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332 at [81]: "An applicant seeking to establish a ground of review based on s 476(1)(g) read with s 476(4)(b) must: (a) identify a "particular fact" on which the decision being challenged was based; (b) establish, by admissible evidence, that the particular fact did not exist; and (c) show that, on the evidence before the decision-maker, it was not open to him or her to find that the particular fact did exist." 16 I do not think that it has been finally settled, on the authorities, that the non-existence of a particular circumstance amounts to "a particular fact" for the purposes of s 476(4)(b) of the Act. However, I shall assume, without deciding, that it can be. In terms of the circumstances of this particular case, the particular facts are that the applicant's father has not been harassed since the applicant left Iran and has not, after being taken away by the Iranian authorities, disappeared. If those facts constituted "particular facts", I think that, in this case, they are to be regarded as being critical to the Tribunal's decision in the sense referred to in cases such as Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 and Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744. In other words, I think that the Tribunal's findings that the applicant's father had not been harassed since the applicant left Iran and that he had not, after being taken away by the Iranian authorities, disappeared played such a part in the process of its reasoning that, had it found otherwise, the Tribunal would not have reached the conclusion which it did. I now turn to the Letter. 17 The immediately relevant parts of the Letter read as follows: "… since your departure from Iran our problems have increased a lot because the Intelligence and Security Forces came a few times and asked for you. As they could not find you, they took your father with themselves. No matter how much I cried and asked them "where are you taking my husband?" they did not pay any attention to me. After they heard my loud screams, one of them, who I think was their supervisor, said that we interrogate him and then will bring him back. But that dirty Pasdar was lying, and up to now, that I'm writing this letter, unfortunately I have had no news of your father. Your two sisters and I are only praying to God and asking Him to keep you and your father safe. . . . [Applicant's name] dear, from where you are pray for your father's health, because he is trapped by Islamic Republic because of you. . . . I am writing this letter to advise you not to return to Iran under any circumstance, because Islamic republic has no mercy." 18 The next question is whether the Letter establishes, on a balance of probabilities, that in fact the applicant's father was harassed since the applicant left Iran and that, after being taken away by Iranian authorities, has disappeared. 19 In my view, it does not do so because it conflicts in a material respect with the applicant's own evidence. 20 The applicant's evidence before the Tribunal was that his mother had told him that his father had been taken away. He said that she had told him this before his interview with the respondent's delegate. That interview took place on 12 January 2001. The applicant told the Tribunal that he did not tell his lawyer (whom he had consulted some three weeks before the hearing) about the fact that his father had been taken away, because he did not trust the lawyer. The hearing took place before the Tribunal on 2 April 2001. The applicant's lawyers' written submissions to the Tribunal were dated 28 March 2001, so it is reasonable to infer (and I do infer) that the applicant gave instructions to those lawyers at some time in March 2001 at a time when he was aware (on his case) that his father had been taken away by the Iranian authorities. 21 The application to this Court was filed on 9 May 2001. 22 The problem which I have with the Letter, noting that it was sent by registered post on 18 June 2001, is that it purports to break the news to the applicant (i.e. for the first time), of the arrest of his father. It starts with the following passage [I have deleted any reference to the applicant's name]: "Greetings to our dear and lovable son, [ ]. I hope that you are well and have no worries. My dear [ ], this is the first letter that I am writing to you and I want to tell you a very important matter. [ ], I hope that you don't get upset about an issue that I am about to tell you and listen with patience and tolerance." 23 There then follow the passages which I have set out above. 24 The fact that the Letter was sent by registered post a few weeks after the applicant had lodged his application in this Court is not, in my view, a co-incidence. On the face of the Letter, it appears that the applicant's mother had not written to him during the seven months since he had left Iran. Apart from a photograph of four young people (two of whom appear to be the applicant's sisters with a notation referring to New Year 1380 (Persian calendar) Tehran "presented to brother [ ]", there is no family news in the Letter. Its central subject matter was the arrest of the applicant's father and advice to the applicant not to return to Iran. 25 I think that a reasonable inference is that the applicant asked his mother to provide something in writing to the effect that his father had been arrested. I make that inference. However, the applicant's mother appears not to have been aware that the applicant had told the Tribunal that she had already told him, as early as before 12 January 2001, about the arrest of his father. If that were true, then she would not have been likely to use the language set out at paragraph 22 above. I do not think that I can safely rely on the contents of the Letter being true. 26 In my opinion, the Letter does not establish that the particular facts referred to above did not exist. 27 Finally, in terms of the matters which an applicant has to establish, I turn to the question whether, on the evidence before the Tribunal, it was not open to the Tribunal to find that the particular facts did exist. 28 I think that it was open to the Tribunal so to find. It was entitled to take into account, (and did so), the facts that the applicant's father was a Colonel in the Iranian Police and had successfully intervened on his behalf when he was detained. It was also entitled to take into account, as again it did, the lack of any action against the applicant while he remained in Iran for a further period of some eighteen months after his release without being harassed. [At the resumed hearing on 30 October 2001 the respondent sought to explain this on the basis that during that 18 month period he had co-operated with the government authorities and, under duress had given them information. In my view, this was an invitation to descend to the merits of the Tribunal's reasoning, which, of course, this Court cannot do.] The Tribunal noted that the applicant had left Iran legally, using his own passport. Then there was the fact that the applicant had ample opportunity to bring this matter to the attention of his lawyers, but had not done so. All of these circumstances (except the circumstances of the applicant's departure from Iran) form part of the circumstances specifically recited in paragraph numbered 6 of its reasons as giving rise to the Tribunal's satisfaction that the alleged disappearance of the applicant's father was not mentioned in his submissions because he had not disappeared. 29 I do not think that the "no evidence" ground has been made out. The Tribunal can be seen to have reached its decision on credibility grounds and, in my opinion, it was entitled to do so on the basis of the various matters to which it referred. 30 During the course of his oral submissions at the resumed hearing of this matter, the applicant covered some of the same ground as he had on 1 August 2001. Apart from the complaint about the Tribunal not paying attention, to which I have referred above, most of the applicant's oral address on the second occasion went to matters relating to the merits of the Tribunal's decision. For example, the applicant referred to the reliance which the Tribunal had placed on the fact that he had been able to leave Iran legally as showing that the Iranian authorities had no interest in him. He said that he had never claimed that he had been on a blacklist and in any event many people with "lots of problems" left through the airport at Teheran without being detected. These matters, as I tried to explain to the applicant, were not for this Court. There were other factual matters which the applicant raised. I need only to refer briefly to two of them. 31 The applicant told me that he had "embraced Christianity". He did not say when that had taken place, but it appeared to have been something which had occurred since the hearing before the Tribunal. The applicant said that his former room-mate (at Curtin Detention Centre), with whom he did not get on well, had returned to Iran and had informed his family of the applicant's change of religion. That, so he submitted, would make his life more dangerous than it ever was. These matters did not form, and in all probability (depending upon when these events are said to have occurred) could not have formed the subject of the applicant's claims before the Tribunal. They raise no ground for review in this Court. 32 Finally, the applicant stated that his former room-mate had stolen all his documents and taken them back to Iran "about 20 days ago" and now everything would be known to the Iranian authorities who would arrest immediately upon return to Iran. 33 Once again, this matter, being one which, on the applicant's case, has arisen since the Tribunal's decision, is not something which is reviewable by this Court. 34 In relation to ground 2 there is nothing which I could detect in the Tribunal's reasons to indicate that its decision involved any error of law. A fair reading of those paragraphs of its reasons where it reviewed the relevant authorities in relation to assessment of refugee claims and set out its understanding of the relevant law, shows that it correctly understood the legal principles involved. There is nothing later in its reasons to suggest that it did not apply the relevant law to the facts as found by it. 35 Nor has my examination of the Tribunal's reasons disclose any jurisdictional error, error of law or any other reviewable error. The Tribunal, in my view, understood the relevant law and the matters upon which it had to be satisfied. 36 As I have mentioned, the Tribunal rejected the applicant's claims essentially because it did not believe him. Conclusion 37 The applicant will be dismissed with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr. A/g Associate: Dated: 1 November 2001 The Applicant appeared in person: Counsel for the Respondent: Mr P R Macliver Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 1 August 2001, 30 October 2001 Date of Judgment: 1 November 2001