FEDERAL COURT OF AUSTRALIA W241 v Minister for Immigration & Multicultural Affairs [2001] FCA 1592 MIGRATION - refugee - Iranian national - no claim to ground refugee status at initial interview on arrival - later claims asserting bases for refugee status - Tribunal rejection of later claims - whether Tribunal adequately considered chance of persecution for Convention reason if applicant were returned to Iran as failed asylum seeker - Tribunal properly applied real chance test - no ground for review of application - application dismissed. W241 v Minister for Immigration and Multicultural Affairs W241 of 2001 FRENCH J 9 NOVEMBER 2001 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W241 OF 2001 BETWEEN: W241 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: FRENCH J DATE OF ORDER: 9 NOVEMBER 2001 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant is to pay the respondent's costs of the application. 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 W241 OF 2001 BETWEEN: W241 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: FRENCH J DATE: 9 NOVEMBER 2001 PLACE: PERTH REASONS FOR JUDGMENT Introduction 1 The applicant is a national of Iran. He arrived in Australia by boat without any lawful authority on 19 June 2000. He applied for a protection visa on 1 March 2001. On 18 April 2001, his application was refused by a delegate of the Minister for Immigration and Multicultural Affairs. He filed an application with the Refugee Review Tribunal ("the Tribunal") seeking review of the delegate's decision on 20 April 2001. On 5 June 2001, the Tribunal affirmed the decision not to grant him a protection visa. On 15 June 2001, the applicant sought review of the Tribunal's decision in this Court. The Initial Interview 2 In his initial interview with an officer of the Department of Immigration and Multicultural Affairs ("DIMA") on 1 July 2000, the applicant was asked, through an interpreter, why he left Iran. His answer as recorded by the officer was: "Because of the difficulties there. There wasn't freedom. Even if your income was good. Eg if my father kept his shop open late, they (gov't authorities) would come to his shop & ask why he was open so late. They would ask for money. Eg 2 years ago they put a bottle of alcohol in my father's shop, even though he was absolutely inocent (sic) they gave him lashes. Things like this can happen to anybody. Another eg is that after 9 mths of waiting I managed to purchase a car for taxiing & I needed to get a taxi permit, however the authorities did not accept to issue the permit until I got married. I couldn't sell or use the car for private or business purposes. People are not in the equal in the eyes of the law, eg - my father's case, however people with influence & power can do what ever they like. PS - If it hadn't been for the difficulties we encounted (sic), we would not have risked such a difficult journey." 3 Asked whether he had any reasons for not wishing to return to his country of nationality, the applicant was recorded as saying: "I will have difficulty in returning. I don't have a passport to return, there is a possibility they may remand me for questioning why I left the country." The Application for a Protection Visa - 1 March 2001 4 In support of his application for a protection visa, in which he was assisted by a migration agent, the applicant made a more elaborate statement. He said his parents were both members of an organisation called MKO at the beginning of the revolution in Iran and were among the older members of that organisation. In 1989 they were killed in a "break-out" in the Abkenar area. After that incident his uncle who was employed in the Registry of Births and Deaths was sacked and he, with his wife and two children, moved to the house of the applicant's late father where the applicant was then living. In 1993, his uncle was imprisoned for four years, accused of "co-operating with hypocrites". However, he was released in 1995. His uncle was again imprisoned in 1998 for six months and sentenced to seventy lashes and a fine based on false accusations that he was producing and selling alcohol. 5 At the end of his military service in 1998, the applicant saw one of his friends during intermediate school who introduced him to one of his father's friends in the MKO. Through him the applicant became familiar with that particular political group. The head of the group was A. The applicant started working for the organisation in June 1998. He described his basic duties as the distribution of pamphlets, newspapers and propaganda posters in the city. After a while, as he was trusted by A and his output was acceptable, he was appointed to print those pamphlets and newspapers. He was introduced to the owner of the print house and began to work there. A son of the print house owner helped him with the printing. His friend used to distribute the publications in the city. He and one of his friends used to distribute them to a number of nearby cities. 6 In May 2000, there was civil disorder in Rasht which continued for three days and nights. As a result, on 9 May 2000, two of the applicant's friends were arrested. After their arrests, the applicant returned to the city and passed on the news and the remainder of his pamphlets to A. A ordered him to leave the city as soon as possible. They left together and went to Bandar Abbas where the applicant stayed for one week in a friend's house. They knew that if those arrested could not handle torture they would reveal the applicant's name and that of A and all the information about their group. 7 The applicant claimed that he had been involved in activities against the governing regime in Iran. He had co-operated with a political group in the printing and distribution of its pamphlets. He said that if arrested he would be interrogated and tortured and sent to the Revolutionary Court where he would be sentenced to death or to a long term of imprisonment. 8 From Bandar Abbas with the help of friends the applicant and A moved to Abozabie by boat and from there to Dubai. They paid 400,000 Thoman each for the boat. With the help of some Iranians living in Dubai and Abozabie he was able to get a permit stamped in his passport for $US1,500. On 24 May he fled from Dubai to Malaysia and then went to Indonesia on 29 May. From Indonesia he came to Australia by boat on 19 June. According to the applicant, in his last contact with his uncle's family in Iran he was told that one of his two friends who had been arrested was killed under torture and his body was found in a street in Rasht city. The coroner reported that his death had been caused by an accident. The applicant also asserted that if returned to Iran he would be arrested upon his arrival and interrogated, tortured and sent to the Revolutionary Court. He expected, in that event, he would be sentenced to death or a very long prison term. 9 The applicant's migration agent provided to the delegate a general submission dated 31 January 2001 which had previously been made available to the Tribunal in relation to other cases. This dealt with the position of asylum seekers from Iran who had been refused protection visas in Australia. The submission raised concerns about their position if returned to Iran after refusal of asylum. It referred, inter alia, to unconfirmed reports that a number of failed asylum seekers sent back to Iran had suffered at the hands of the Ettela'at and the Revolutionary Courts. The most serious of these reports asserted, it was said, that one such deportee from Australia had been arrested, interrogated harshly, taken before a Revolutionary Court and sentenced to a long term of imprisonment, possibly a life term. However, the agent was not in a position to confirm the report at that stage. Evidence of the suspicious death in 1997 of a deported Iranian asylum seeker was also mentioned. The Applicant's Interview with the Delegate - 2 March 2001 10 The applicant was interviewed by the delegate on 2 March 2001. The Tribunal has set out the substance of that interview in its reasons for decision. The applicant told the delegate that he had failed to make all of his real protection claims at initial interview because he was afraid that the Australian government would pass the information on to Iranian authorities. He said he feared persecution as a member of a politically active family. He acknowledged that he had stated initially that his parents were alive but now was claiming that they had been killed. He said he made this false statement because he was not given an adequate opportunity to speak at the entry interview and because orphans are not respected in Iran. He told the delegate that his parents had been killed in a political incident in 1989 and that his uncle was sacked because of his connection with the parents. His uncle, however, was not involved in any political movement. 11 After finishing school the applicant had worked for his uncle and later went into his own business. His uncle took over his father's shop, which was a fruit juice shop. He worked there while at school and until he started his military service the year after finishing school. The applicant told the delegate he owned the shop and his uncle ran it. He started another shop after his military service selling and installing alarms for cars and houses. 12 Asked why he did not mention during entry interview that his parents were dead, he said he had no chance to say anything. He repeated that Iran has a very old culture and that orphans are not well respected. He said he did not know what the cultural situation was like in Australia for orphans and for this reason did not say he was an orphan. He also said that if he had been advised of the criteria for refugee status at the entry interview he would have said different things there. Asked why he and his uncle's family continued to live in the house which was previously owned by his parents if they were being constantly harassed, the applicant responded that all of his parents' assets had been confiscated and the family did not want to leave the house in case it was taken also. 13 The applicant also told the delegate that shortly after his parents' death he was arrested for possession of playing cards. While his friends were let off lightly he was beaten because of his parents political background. The cards were found in his friend's pocket but the applicant was the one punished the most severely. He said he had been involved in the distribution of political materials between 1998 and May 2000. A school friend had introduced him to A who, it turned out, had been a friend of his father. He became involved in distributing pamphlets for the MKO. He said he agreed with its ideology but he was not actually a member of it and had no membership card. He said that A was a member. He said it was hard to become a member. 14 The applicant elaborated on the civil disorder in Rasht on 9 May 2000. The birthday of Imam was being celebrated. There was a conflict between the Basiji and young people because they were dressed inappropriately. The public got involved as did people from outside Rasht. On the second day of the disorder, A had arranged for pamphlets to be distributed in Rasht to take advantage of the situation. The applicant was near his car about 100 metres from two of his colleagues who were distributing pamphlets in an alleyway. They were approached by people in plain clothes and arrested. He drove back home with the remaining pamphlets and told A what had happened. That was when they decided to leave Bandar Anzali. The printer and his son did not have to flee because they were not involved in the distribution. The applicant told the delegate that he left A in Malaysia. A did not want to come to Australia. He wanted to contact his people. Asked why he did not stay with A and become an MKO member, the applicant said that he would not be given membership because he was very young and he did not want to get involved in arms. Asked why he had obtained an Iranian passport, he said he had to pay money to get it. He felt it was safer to have a passport given the work that he was involved in. He said he destroyed the passport because the smuggler told him to. The Tribunal Application and Hearing 15 Before the Tribunal hearing the Tribunal wrote to the applicant informing him that because of the conflict between his initial interview and the later evidence which he had given to DIMA there might be cause to doubt the credibility of his later claims. It attached a copy of the record of the initial interview and invited him to comment on this information. The applicant made a statement by way of letter which was translated and supplied to the Tribunal in support of his application for review. He again sought to explain his failure to state at initial interview that he was fleeing apprehended persecution. He said that at the time of that interview he was not aware of the conditions for recognition as a refugee. Had he known the meaning of the term he would have told the DIMA officer of all the reasons and problems that forced him to leave the country. He had not made full disclosure because he was then so afraid to talk about political things that he was inclined to hide that part of his life. His fear was based on the detention atmosphere, the difficult route which he had travelled to get to Australia, the power of the Iranian Ettela'at and his belief that Australia wouldn't accept those who had problems with their countries and who were wanted by their home countries. He said he was affected by these considerations which led him not to give a full, true account in his first interview. He had not mentioned that his father and mother had been killed in 1989. He had referred to his paternal uncle and aunt as his parents and their children as his brothers and sisters. Although he told the officer at first interview that he had left Iran legally and flown from Teheran to Indonesia, the true position was that he left Iran illegally through Bandar Abbas to Dubai and then on his personal passport to Malaysia and Indonesia. He considered it harmful to tell the Australian authorities that he left Iran illegally. He also supplied a more elaborate supplementary statement on 15 May. 16 In its reasons for decision the Tribunal referred to the arrival interview with the DIMA officer on 1 July 2000, the interview with the primary decision-maker on 2 March 2001, the written submissions the applicant had made to the Tribunal and the evidence he gave at the Tribunal hearing. It was noted that in his supplementary submission to the Tribunal the applicant provided a poor photocopy of what was said to be his birth certificate and an English translation of it. His parents' names as they appeared in the birth certificate were different from the names he gave for his parents at his entry interview. He said this proved that he gave the names of his uncle and his uncle's wife as parents at the entry interview and that it substantiated his claim that his parents were killed by the regime in 1989. 17 The Tribunal referred in some detail to the oral evidence given by the applicant at the hearing. There was reference to the incident in Rasht which precipitated his decision to leave Iran. He also described the procedure for the distribution of pamphlets which he said was co-ordinated by A. Everyone met in Rasht. There was a division of labour and several Mojahedin helpers were given various areas in which to distribute them. Asked whether he reported the arrest of his friends to the Mojahedin he said he did not know the people in the hierarchy nor any members of the rank and file. He only knew A. He told the Tribunal that he already had a passport before fleeing Rasht. He had obtained a passport in 1999. There was no particular reason for him doing this. It was usual for men to apply for passports after completion of their compulsory military service. He then claimed that A had advised him to obtain a passport because of his involvement with the Mojahedin. Asked why he left Iran illegally given that he could have left legally on his passport, he said he was fearful that his friends who were arrested would have been forced to betray others who were involved in distributing the pamphlets in Rasht. Because he was fearful he decided to leave illegally. He repeated that he had never seen A again after leaving him in Malaysia. He said A could not live in Iran but wanted to expand his Mojahedin activities through overseas groups. He said he did not have contact with Mojahedin members in Australia and did not wish to contact them. He wanted to live his own life from now on. He had constant upheaval in his life. The applicant was asked questions about the Mojahedin. He was asked how many members there were. He did not know. He only knew A and those who worked with him, some seven people. He was asked other questions about the Mojahedin. He had a limited knowledge of it. He claimed there was very high security surrounding the Mojahedin and he was only ever given essential information to enable him to carry out his duties. He discussed the position of his uncle and his belief that his uncle had been mistreated since he left Iran. His aunt told him that his uncle had been arrested but had subsequently been released. He did not know how long his uncle was detained. He then explained that he did not really know what had happened to his uncle. 18 Following the Tribunal hearing, the applicant's adviser sent the Tribunal a copy together with an English translation of his business permit dated 1 September 1999. On 4 June 2001, the adviser sent the Tribunal a post-hearing submission as well as a further statement by the applicant. The Tribunal characterised the post-hearing statement as largely reiterating his earlier claims. The Tribunal referred to independent country information on the Mojahedin. The Tribunal's Findings and Reasons 19 The Tribunal began its findings and reasons by referring to what it called the "set of claims" made by the applicant immediately upon his arrival in Australia. When he eventually lodged his protection visa application eight and a half months later, he was said to have "supplemented his original claims with a set of new claims which he had made no suggestion of when he first arrived in Australia". The Tribunal said: "The Tribunal does not accept the later claims made by the applicant as credible for a number of reasons which will be discussed below." 20 The Tribunal did not accept the explanation given by the applicant for failing to make all of his claims when he first arrived in Australia. It did not accept his explanation that he had no information about refugee criteria and no experience of being in another country. The questions which he was asked during his arrival interview were clear, as were his answers. He was also warned at the initial interview that if the information he gave at a further interview were different from what he said initially that could raise doubts about the credibility of what he said. He was asked whether he understood what had been said and whether he understood the interpreter. He answered "yes" to both of those questions. The Tribunal was satisfied that he was given a fair opportunity to speak and answer the questions put to him contrary to his later claim that he was not given an opportunity to speak during his initial interview. 21 The Tribunal did not accept as a reasonable explanation for the applicant's failure to make his later claims that he did not think Australia would accept people who had problems in their home countries. It did not accept his claim that he believed Australia had good relations with Iran and feared that Australia might provide information about him to the Iranian authorities. He claimed in his interview with the delegate that he had come to Australia to seek protection because he heard that Australia accepted refugees. This, in the Tribunal's view, presupposed at least some knowledge of what a refugee is. The Tribunal did not accept that he would have come to Australia if he believed that Australia would turn him away because of his claimed problems in Iran. He claimed to have come to Australia with the intention of seeking protection from the difficulties he said he faced in Iran. The Tribunal also did not accept his claims that the treatment he received on arrival and the atmosphere in the detention centre was oppressive. Nor did it accept that guards gave new arrivals incorrect information. 22 The Tribunal observed that in a post-hearing submission the applicant's adviser submitted that interpreters working with new arrivals in Australia tell the new arrivals not to make all of their claims during the arrival interview. It was submitted that interpreters tell the new arrivals that the purpose of the arrival interview is merely to establish how they come to Australia. The Tribunal did not accept these claims as credible. They had not been made previously in any of the written submissions or the oral evidence. Moreover it did not accept that professional interpreters engaged by DIMA would do anything other than interpret what was said during official interviews and other official business involved in the processing of new arrivals. 23 In relation to the applicant's tendering of his uncle's name as that of his father at the initial interview and the names of his cousins as his siblings, the Tribunal did not accept that the discrepancy lent any weight to his claims that his parents had been killed by the regime due to their alleged involvement with the Mojahedin. The Tribunal was prepared to accept that he may have lived with his uncle's family and that this might be because his parents had died. However, it did not accept that he gave false information in this regard for the reasons which he later asserted. In addition it did not accept as a plausible explanation for his incorrect statements in this regard that he believed it might be socially unacceptable to be an orphan in Australia. The Tribunal did not accept that he would have chosen to come to Australia if he thought he would be discriminated against because he was an orphan. The applicant had stated in his arrival interview that he came to Australia because he heard that "John Howard sees all people equal". This conflicted with his claim of apprehended discrimination. 24 The Tribunal did not accept that the applicant had lied about his means of departure at the arrival interview nor his explanation for changing his story in that regard. He had clearly stated in his arrival interview that he had left Iran legally. The Tribunal did not accept that there was any impediment to his legal departure from that country. The Tribunal also placed significant weight on the fact that the arrival interview was conducted very soon after his arrival in Australia and well before he had any opportunity to talk with other detainees and visitors to the detention centre who may have had an influence on his later claims. It said: "The Tribunal finds that the only reliable evidence of the applicant's true reasons for departing Iran are (sic) the claims he made during the arrival interview. His later claims have become corrupted by the passage of time and his contact with others and the Tribunal places no weight on these claims." 25 The Tribunal referred to the generality of the later claims and its inability to test their veracity. It found that the applicant had deliberately framed his claims about his personal involvement with the Mojahedin in such a way that it might appear reasonable for him to know little about them. It also found it implausible that the Mojahedin would provide him with a high level of support from A when he was not a member of the organisation and had no interest in pursuing his involvement with it. It found it implausible that A would travel all the way to Malaysia with him if he intended actually to travel to places where the Mojahedin had a strong hold, namely in Europe and Iran. The Tribunal said: "After considering the above matters, the Tribunal is unable to accept that any of the additional claims made by the applicant after his arrival interview are credible and places no weight on them." 26 The Tribunal assessed the claims which the applicant made on arrival. It found them to reflect the true reasons why he left Iran for Australia. It was not satisfied that he had ever been discriminated against at the hands of the law in Iran for a Convention reason nor to an extent that was serious enough to amount to persecution in the Convention sense. The Tribunal said that it was "… not satisfied that there is a real chance that the applicant will be persecuted under the law for a Convention reason should he return to Iran". In relation to the applicant's claims that he might face difficulty upon return to Iran because he did not have a passport and would be remanded for questioning, the Tribunal found that he departed legally and was not satisfied that he would face any penalty for illegal departure. The fact that he no longer holds a passport, having destroyed it en route to Australia, means the Australian authorities will need to make arrangements for travel documentation for him before he can be returned. This was merely a matter of procedure. The Tribunal said: "Independent information cited above (Country Report on Iran, Netherlands Ministry of Foreign Affairs, December 1998) indicates that Iranian embassies are cooperating by providing 'laissez-passer' documents for returnees. Upon return, the Iranian authorities appear to realise that Western countries are only returning those persons (who have exhausted all legal avenues), who have gone through a thorough procedure which ultimately determined that their request for asylum was not politically motivated. If an individual cannot prove that they left Iran legally a small fine may be imposed. The UNHCR does not object to the return to Iran of Iranian nationals who, after due consideration of their applications in full and fair asylum procedures, have been found neither to qualify for refugee status nor to be in need of international protection. In light of this evidence, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Iran for a Convention reason in relation to this claim." Grounds for Review 27 The application for review of the Tribunal's decision as initially lodged was handwritten and, on the face of it, challenged the merits of the decision without disclosing any basis for review. An amended application was filed at the hearing in Court on 8 October by Mr Rynne who appeared pro bono for the applicant. The amended application asserted that the decision was not authorised by the Act and that it involved an error of law, being an error involving an incorrect interpretation of the applicable law. The particulars of the grounds were shortly stated thus: "In making its decision the Tribunal failed to properly consider if the Applicant faced a real chance of persecution should he be returned to Iran without a passport." The Applicant's Contentions 28 Counsel for the applicant summarised his claims thus: "(a) claims made at arrival interview on 1 July 2000 ('initial claims') namely:- (i) his father was harassed in his occupation as a shopkeeper; and (ii) the applicant was denied an opportunity to conduct a taxi business; (iii) fears of returning to Iran without a passport. (b) claims made in written submissions lodged 1 March 2001 confirmed at interview on 2 March 2001 and post RRT hearing submissions lodged 22 May 2001 ('subsequent claims') namely:- (i) applicants parents were members of the MKO - a political group in opposition to the Iran government; his parents were killed because of this; (ii) applicant distributed pamphlets, newspapers and propaganda for a political group; and (iii) friends of the Applicant who were similarly engaged in such distribution activities were arrested; and (iv) one of these friends was tortured and killed; and (v) the applicant fears arrest for these activities should he return to Iran and thus torture and possible death." 29 Counsel for the applicant characterised the Tribunal's decision as placing no weight on items (i) to (v) of the claims that were made after the initial interview. It had determined that the initial claims failed to support a finding that the applicant was a refugee. It was contended for the applicant that in adopting that approach the Tribunal committed an error of law in failing to engage in reasonable speculation about a real chance of persecution. It was said to have given little consideration to whether, in fact, the applicant had been engaged in the distribution of pamphlets. It impliedly accepted that he might be telling the truth when he said his parents had died. It had not made a positive finding against the subsequent claims. It merely chose to give them no weight in making its decision. It accepted the veracity of his initial claims relevant to harassment and the conduct of a taxi business. 30 It was also submitted for the applicant that the Tribunal foreclosed reasonable speculation about the real chance of persecution should he be returned to Iran. Notwithstanding the Tribunal's findings relevant to the initial and subsequent claims, it failed to give any meaningful consideration to the possibility of persecution should the applicant be returned as an asylum seeker from Australia in the absence of a passport. It relied on independent country information which material did not exclude the possibility of a real chance of persecution. The Tribunal was also said to have failed to take additional evidence into consideration namely the general submission of the migration agent dated 31 January 2001 which had been provided to the delegate. 31 The oral argument on behalf of the applicant before the Court narrowed down to the proposition that the Tribunal did not consider the risk to the applicant if he were returned to Iran as a failed asylum seeker. The claim at this point, it was accepted, was in the nature of a refugee sur place claim. The Real Chance Consideration 32 Although the Tribunal said it placed "no weight" on the later claims made by the applicant, there is no doubt, having regard to its approach to those claims and the basis upon which it arrived at that conclusion that this amounted to a rejection of them. That was made clear in the opening statement in the findings and reasons section of the reasons for decision where the Tribunal said that it did not accept the later claims made by the applicant as credible. Moreover it found that the true reasons for his departure from Iran to Australia were those set out in his initial interview with a DIMA officer on 1 July 2000. It made clear the certainty of its conclusions with the observation that it was not satisfied that there was a real chance that the applicant would be persecuted under the law for a Convention reason should he be returned to Iran. The Tribunal plainly considered the difficulty that the applicant claimed he would face being returned to Iran without a passport. It referred to his stated fears of being remanded for questioning upon return to Iran. And although it used the language of want of satisfaction that he would face any penalty for illegal departure from Iran, the Tribunal in context was finding that there was no real chance that he would face any such penalty. It elaborated this conclusion by reference to the independent country information. If there were some error of logic in its reasoning from that information, that is not a matter which provides a ground for review. 33 In the circumstances there is no basis for the contention that the Tribunal has failed to carry out its function in determining whether or not the applicant has a well-founded fear of persecution for a Convention reason if returned to Iran. The application must be dismissed with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French . Associate: Dated: November 2001 Mr MF Rynne (Pro Bono Counsel) Counsel for the Respondent: Mr PR Macliver Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 8 October 2001 Date of Judgment: 9 November 2001