Fard v Minister for Immigration & Multicultural Affairs [2001] FCA 1694

FEDERAL COURT OF AUSTRALIA

Fard v Minister for Immigration & Multicultural Affairs [2001] FCA 1694 AFSHIN JALALI FARD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 312 of 2001 SPENDER, MERKEL, ALLSOP JJ PERTH 30 NOVEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 312 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: AFSHIN JALALI FARD

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: SPENDER, MERKEL, ALLSOP JJ

DATE OF ORDER: 30 NOVEMBER 2001

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. 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 312 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: AFSHIN JALALI FARD

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: SPENDER, MERKEL, ALLSOP JJ

DATE: 30 NOVEMBER 2001

PLACE: BRISBANE

REASONS FOR JUDGMENT SPENDER J: 1 This is an appeal from a decision of a single judge of this court, Wilcox J, given on 5 July 2001. The appellant is a citizen of Iran. He arrived in Australia in October 2000. He was interviewed by an officer of the Department of Immigration and Multicultural Affairs on 10 October 2000 and he applied to the department for a protection visa on 16 October 2000. On 1 November 2001 a delegate of the Minister made a decision refusing the grant of a protection visa to Mr Fard. He applied to the Refugee Review Tribunal (the Tribunal) for review of that delegate's decision, the application being made on 9 November 2000. 2 At the hearing before the Tribunal Mr Fard gave oral evidence. The Tribunal's decision was made on 13 February this year, affirming the decision of the delegate of the Minister not to grant a protection visa. On 23 February 2001 the appellant lodged an application for review of the Tribunal's decision pursuant to s 476(1) of the Migration Act 1958 (Cth) (the Act) and, as I have indicated, that application was heard and dismissed on 5 July 2001, Wilcox J holding that there was no reviewable error in the Tribunal's decision. 3 On 18 July 2001 Mr Fard filed a notice of appeal, and at the hearing of the appeal today, counsel on his behalf sought leave to amend the notice of appeal. The two grounds that were comprehended by that amended notice are as follows: in accepting the Tribunal's finding that the applicant would not be dealt with differently from other people who were involved in the demonstration in July 1999, his Honour erred by failing to consider the effect of the undertaking signed by the applicant. 4 Secondly, it is said his Honour erred by failing to consider the cumulative effects of the incidents the appellant relies upon in support of his assertion that he has a well-founded fear of persecution. It therefore seems that the appeal is based on the claim that there was an error of the kind referred to in paragraph 84 of the judgment of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 22. 5 In the reasons of the Tribunal the Tribunal noted that Mr Fard had signed an undertaking not to be involved in political activity of any sort in the future. That undertaking was given when he was 14 years of age and occurred 17 years prior to Mr Fard's involvement in demonstrations in Tehran in 1999. Having recited that claim of the Tribunal, the Tribunal expressed its findings first at page 122 of the appeal book in the following passage: "I accept that the Applicant participated in the student demonstrations in Tehran on one morning in July 1999, that there was fighting with the Government forces and that the Applicant was injured in the melée. The Applicant claims that he fled Iran in July 2000 because Morteza and Saeed told him that he appeared in photographs of the demonstrations. In the statement accompanying his original application he said that if he were to return to Iran he would be tortured, imprisoned and executed because of his involvement in the demonstrations." I emphasis the words "because of his involvement in the demonstrations". At page 123 of the appeal book the Tribunal's reasons include the statement: "I do not accept that, if the Applicant returns to Iran now or in the reasonably foreseeable future, there is a real chance he will be charged, tortured, imprisoned or executed by reason of his participation in the demonstrations." Again I emphasise the words "by reason of his participation in the demonstrations". 6 If that were the limit of the references, it may be that an argument would be open to Mr Fard that there had been a failure to have regard to the factual circumstance of the giving of the undertaking and that there may, for that reason, have been a finding that was wrong. It would, nonetheless, face formidable difficulties in that the submission would really be the assertion of a factual error on the question of a real risk of persecution, in that a relevant factual circumstance, the giving of the undertaking, had been ignored. 7 However, the Tribunal did not so restrict its findings. At page 124 of the appeal book the Tribunal said: "Since for reasons given above I do not accept that either the Applicant or the Applicant's family are perceived by the Iranian authorities as being involved in the Mujahideen-e-Khalq or as being supporters or sympathisers of the Mujahideen-e-Khalq, it follows that I do not accept that his involvement in the student demonstrations will be viewed differently from that of anyone else by reason of his actual or imputed political opinion. I do not accept that there is a real chance that the Applicant will be singled out for arrest and prosecution for his involvement in the demonstrations by reason of any religious or political opinion imputed to him on the basis of his cousin's involvement in the Mujahideen-e-Khalq 17 years ago when the Applicant was aged only 14 years old nor do I accept that there is a real chance that the Applicant will face greater punishment, for that reason, than any other person who may have had a similar involvement in the student demonstrations. Then importantly the Tribunal said: I do not accept that there is a real chance that the Applicant will be treated differently from any other participant in the demonstrations by reason of his having signed an undertaking 17 years ago when he was 14 years old not to be involved in political activity of any sort in the future. 8 The position is that the Tribunal specifically referred to the undertaking and concluded that that circumstance did not take Mr Fard's position outside those of other participants in the demonstration. It may be that the Tribunal was wrong in reaching that conclusion, although there is a probative reason given for that conclusion: namely, that the undertaking was signed 17 years ago when Mr Fard was 14 years old. 9 The possibility that the Tribunal's findings of fact are in error, or that the Court may have made different findings of fact about the real chance of a Convention based persecution, is not a permissible basis for review. In Minister For Immigration And Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at 437 in par 42, the Full Court said: "…it is now clearly established that the Australian rule which rejects factual mistake or want of logic as a ground for judicial review (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321) is applicable to review under Pt 8: Epeabaka at 420 - 422 [20] – [26]." 10 It should be said that the primary judge specifically referred to the possibility of a factually incorrect conclusion on the part of the Tribunal. His Honour said: "There may be scope for debate about aspects of the factual findings in this case; but they are factual findings and so not within the purview of the Court." 11 In my opinion there has been no error demonstrated in the judgment of the primary judge. It follows that in my opinion the appeal should be dismissed with costs. MERKEL J: 12 I agree. ALLSOP J: 13 I agree, and only wish to add my thanks for the careful and frank submissions of Mr Atkinson who appeared for the appellant pro bono, and my personal thanks for the careful written submissions of Ms Price. SPENDER J: 14 The order of the court is that the appeal is dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Merkel and Allsop.