FEDERAL COURT OF AUSTRALIA Applicant A v Minister for Immigration and Multicultural Affairs [2001] FCA 1825 APPLICANT A v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 350 of 2001 CARR J 18 DECEMBER 2001 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W350 OF 2001 BETWEEN: APPLICANT A Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: CARR J DATE OF ORDER: 18 DECEMBER 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 W350 OF 2001 BETWEEN: APPLICANT A Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: CARR J DATE: 18 DECEMBER 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 30 July 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 17 October 2000. On 27 October 2000 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth)("the Act"). On 12 February 2001 a delegate of the respondent refused to grant a protection visa and on 19 February 2001 the applicant applied for review of that decision. the applicant's claims and the Tribunal's decision 2 The applicant's claims were as follows: · He was a 24 year old man from Ahwaz who sought protection on the grounds of political opinion. · His family experienced problems about 19 years ago when a female cousin, who was a Mujahid was living with them. · The security police arrested the cousin and occupied the family home for a week. Two years later the cousin and her husband were executed. · Nearly five years later, because his father drank alcohol and the neighbours informed on him, the family home was raided again and ransacked by the security police. Later the applicant told the Tribunal that he believed the raid had taken place after neighbours had told the authorities that his family possessed anti-regime flyers and magazines. · When the applicant was 15 his father was suspended from his job for about three months for not following the dress code, drinking alcohol and shaving. He was demoted from being a manager of the concrete and drilling section of the Iranian oil company to being a camp boss. Once again, in his evidence to the Tribunal the applicant changed his claim about this matter by stating that these problems were connected with the family having left Iran and having contact with foreigners. · The applicant finished high school and military service, but was refused a discharge card because he had a bad reputation along with the rest of his family. When he asked for a clearance certificate he was detained all day and asked why the majority of his relatives were living outside Iran. · He left Iran on his own passport because the airport authorities simply stamped his passport without checking on any computers. It was possible to leave from Teheran airport even though a person might be under suspicion, because the applicant knew people who had done this. · After being refused a military discharge card and having refused to co-operate with the security police, he was unable to obtain any sort of government or official job. His family history precluded him from passing the scrutiny of the Islamic Association which check up on family backgrounds. · He had been accepted at the civil engineering faculty at Lar Shiraz University but the Islamic Association prevented him from being admitted to that University. · He started to study hairdressing but was unable to carry out that occupation as he had been denied a permit despite having paid a large fee. · There was increased violence in Iran especially after riots over water in Khozestan; the authorities would then target families such as his who are under suspicion for anti-government activities. · He could not return to Iran because he got no protection from the authorities there; his family had been persecuted and there seemed to be no security for any of them because the violence continued. · If he were returned to Iran, he would be arrested at the airport as a person under suspicion and also because he left to go to a foreign country. · The applicant made an additional claim at his interview with the respondent's delegate. That was that his father had had a problem with the Islamic Association when he was demanding better conditions for the workplace. His father had been a supporter of the old regime and a monarchist. · In a submission made to the Tribunal on 23 March 2001, the applicant's advisers added a new set of claims on behalf of the applicant, namely that he was a member of a monarchist organisation called "Iran Paad" which he joined in 1997. He had regularly distributed leaflets for them in March each year. · These leaflets were printed in the United Kingdom and sent to Iran. · On 6 September 2000 he took part in a demonstration in front of the Parliament in Teheran. He distributed leaflets which were critical of the Iranian regime. · He believed that he and others in the demonstration were filmed by security forces which came and arrested some of the demonstrators including a friend of his. · He had escaped and went into hiding. His friend was interrogated and the applicant believed that he told the authorities about the applicant's involvement under torture. · His house was raided by the security forces looking for him, but he managed to escape the country three days later. · He did not provide these facts earlier as he had not had permission from the organisation to disclose his involvement. 3 The applicant submitted documents in support of these new claims concerning his membership of the Iran Paad. The Tribunal described those documents in the earlier part of its reasons. 4 A further submission on behalf of the applicant stated that he had been informed by telephone by his uncle in Esfahan that his father had been arrested and later released but had been suspended from work, that his family had been given notice to vacate their home, that when the family home had been raided a diary of the applicant's had been found which had appointments listed in it. The diary had been taken as evidence of his involvement with the Iran Paad organisation. At the same time a photograph of the late Shah's son was found among the applicant's property, other items were seized including a photograph of his father receiving a medal from the Shah, taken before the Revolution, and other photographs and history books which were evidence of the family being supporters of the Shah. 5 The Tribunal's reasons show that at the hearing it closely questioned the applicant on various aspects of his claims and in particular his claims which were based on being a supporter of the monarchy. 6 The Tribunal referred to a considerable volume of independent country information. 7 I shall not attempt to summarise the Tribunal's findings and reasons. I set them out below in full. I have added numbers to the paragraphs to facilitate the references which I make later in these reasons. "FINDINGS AND REASONS 1. The Tribunal accepts that the applicant is a citizen of Iran as he has claimed. There is nothing in the evidence to suggest otherwise. 2. Initially the applicant claimed that he and his family had problems because they were suspected of anti-revolution sentiments. Specifically, he claimed that the authorities had raided and isolated his home in 1982 when they arrested a cousin who was later executed. He claimed that around 1986/87 there had been a second raid on his house on the excuse of a search for subversive literature and music. He initially claimed that the raid had been prompted by neighbours denouncing his father for drinking alcohol but told the Tribunal that he believed the raid had taken place after neighbours told the authorities that they had anti-regime flyers and magazines. The applicant also claimed that his father had been suspended from his job for a period of around three months around 1987, had been demoted and had failed to be promoted since. He initially blamed this on his father's alcohol consumption and shaving but subsequently told the Tribunal the problems had been connected with the family haying left Iran and haying contact with foreigners. The applicant claimed that his own problems commenced in July 1999 when, because of his family's background, he was put under pressure by intelligence authorities to co-operate with them upon being discharged from the army. He claimed that he denied to do so and was warned of dire consequences and of future surveillance. The applicant claimed that subsequently he had been denied entry into University by the Islamic Association for reason of his family background. He claimed that around May 2000 he had been denied a permit to establish a hairdressing shop. 3. Although the Tribunal believes that the applicant overstated the significance of the above claims, which he made since he first arrived, it is prepared to accept that the particular incidents/events may have taken place. However, it does not accept that they constitute persecution and that they occurred for reason of an adverse political profile or are indicative of the applicant and/or his family having such a profile. In coming to this view the Tribunal had regard for country information about the circumstances which gives raise (sic) to an adverse political profile and access to education and work in Iran (pp19-20). The Tribunal also had regard for the fact that it would appear from the evidence that the applicant and his family lived an otherwise normal and uneventful life in Iran. 4. It seems that other than the inconvenience involved in the first raid on the applicant's home in 1982 there were no other consequence to him or his immediate family despite the fact that their cousin was executed as a Mujahadeen. The subsequent raid seems to have been nothing more than a brush with the authorities for infringement of the moral code. The Tribunal notes that the family were subsequently allowed to leave, return and continue to live in Iran without major problems. The alleged suspension of the applicant's father may have been a result of his trip outside Iran which could have been perceived to detract from the necessary revolutionary credentials and adherence to Islamic practices required to be trusted in senior positions and to be considered for promotions (p20). Whilst this would amount to a judgement as to his revolutionary credentials and practice of Islam it does not necessarily equate to an adverse political profile. The applicant also suggested that his father's employment had suffered for his involvement in industrial demands. Whatever the case, the Tribunal does not accept that he was suspended, demoted and not considered for promotion for reason of an imputed adverse political profile. It would not make sense that the company would have reinstated him and allowed to continue to work for over a decade if he had been suspected of an adverse political profile. 5. In the case of the applicant, the Tribunal is not satisfied that the circumstances of his discharge from the army were unusual and does not accept that they are indicative of him having an adverse political profile. There was nothing to suggest that he was being monitored or that that the security/intelligence authorities played a role in his civilian life. In fact, he was discharged and he was subsequently granted a passport, which are indications of their being no adverse political profile (p20). Whilst the Tribunal accepts that the applicant may have been denied entry to university by the Islamic Association, it is not satisfied that this was because he and/or his family had an adverse political profile. Country information indicates that places at university are scarce and preferential treatment is given to those associated with the revolutionary regime at the expense of those associated with the previous regime and those generally without good connections (p20). The Tribunal is also not satisfied that it was the applicant's family background that resulted in him being denied a licence to establish a hairdressing business. In fact, the Tribunal is not even satisfied that he was denied the licence, the applicant's evidence at time seemed to suggest that he just simply had not been granted the licence at the time of his departure rather than having been denied the licence altogether. The Tribunal notes that the applicant's account indicates that he would have obtained his passport round about the time he finished his hairdressing studies suggesting that he was already preparing to travel. The applicant made various other claims as to having his work opportunities blocked. However, he also indicated that besides trying to obtain the hairdressing licence he had not attempted to seek work. In these circumstances the Tribunal is not satisfied that he was prevented from working for reason of his family background or any other reason. 6. In summary, while the Tribunal accepts that the above incidents/events may have occurred and that they may reflect a lack of revolutionary and Islamic credentials and/or contacts on the part of the applicant and his family, it does not accept that the applicant and/or his family were persecuted in Iran and/or that it establishes that he and/or his family were imputed to have an adverse political profile. The applicant himself seemed in agreement with this assessment and referred to his second set of claims as being the reason for fearing returning to Iran. 7. The applicant's second set of claims was advanced at the point of review. These claims related to his alleged membership of the monarchist opposition party known as Iran Paad. Specifically, he claimed to have become a member of Iran Paad in late 1997; to have been active distributing their pamphlets and writing their slogans on walls; and to have attended a demonstration on 6 September 2000. The applicant claimed that members of the security forces filmed the demonstrators and arrested a friend of his. According to the applicant he fled when, upon release, his friend told him he had been identified as a demonstrator. The applicant claimed that since his departure, his home had been raided, evidence of his and his family support for the monarchy had been found, his father had been arrested and later suspended from work and given notice to vacate their work assigned home, his family had been harassed and his home and family were under surveillance. The applicant claimed that he had not been permitted to disclose these claims previously. The applicant's final claim was that monarchists are at risk of serious harm in Iran. 8. The Tribunal does not accept these claims. In reaching this conclusion the Tribunal had regard to country information, and the plausibility of the applicant's claims, the delay in making the claims and the coincidence between the applicant's claims and that of another applicant for protection who this applicant believed had had his primary decision set aside by a differently constituted Tribunal for reason of his involvement with Iran Paad. 9. According to country information Iran Paad operates from London and other countries outside Iran; and monarchists have been almost entirely "wiped out" in Iran and do not conduct anti-regime activities in Iran (pp21-24). The Tribunal was unable to find any information about a demonstration such as that claimed to have been attended by the applicant on 6 September 2000 (p25) and the first challenge to the Iranian regime on the part of the son of the late Shah, which the applicant claimed to have prompted the demonstration that led him to flee Iran, did not take place until after the applicant left Iran (pp25-26). In addition, the rumours of a coup and changes in the army took place at times other than indicated by the applicant (pp26-27). 10. The applicant's account of his alleged activities for Iran Paad was not believable. In particular, the Tribunal does not accept that he could have been involved in the activities claimed while serving his military service some 300 kilometres away from Ahwaz. His contention that he spent only half his time doing his service was not believable. In addition, the applicant was very vague as to how he had obtained materials from Iran Paad in London. 11. Whilst it may be possible that an applicant may omit genuine claims for an important reason, the Tribunal does not accept that this applicant had reason to do so in this case. The applicant initially claimed that he had not been permitted by Iran Paad to disclose his involvement with them and referred to a clause in a document alleged to be the organisations' regulations. Besides the fact that it is impossible for the Tribunal to determine whether the document referred to by the applicant is in fact a genuine Iran Paad document as it looks to be a copy of a compilation of different bits of text, the regulation in question does not prohibit disclosure of one's membership of the organisation. It only prohibits disclosure of the organisation's activities and documents. The applicant referred to security reasons for not asserting the claim earlier. However, it is difficult to see what security problems he would have had if he had disclosed his membership of a group openly operating outside Iran. The applicant was questioned by the primary decision maker as to whether he had any other claims and he categorically denied having any other claims. The applicant only advanced this set of claims after he was denied protection by the department. In addition, the Tribunal finds it suspiciously coincidental the similarity of this applicant's new set of claims to that of the case of the Member McIntosh. The Tribunal does not accept that this was simply a matter of chance nor does it accept that this applicant knew of the case from Iran Paad. The applicant gave the clear appearance to this Tribunal to be across the circumstances of the other case. It was he who directed this Tribunal to the case by indicating its outcome, the date of the outcome, the Member concerned and the enquiries made by that Member. As a matter of interest, the case in question was set aside for reasons other than the alleged membership of Iran Paad. 12. The Tribunal noted the documentation provided by the applicant. However, it decided to give it no weight, as it lacked independence and doubted its honesty. The Tribunal is not satisfied of the reliability of Iran Paad. The Tribunal was particularly concerned with their willingness to make claims that seem to lack foundation. Their information implies that they conduct activities in Iran/exist within Iran (p22), as does the letter provided in support of the applicant. Yet information from a range of other sources questions such claims (pp21-24). The Tribunal also noted that the organisation has claimed to have been officially recognised by UNHCR and Amnesty, in what appears an attempt to establish its bona fide. However, both these organisations have denied such claims (p22). In addition, the Tribunal notes recent advice from the Home Office that Iran Paad claimants in the UK have submitted evidence of participating in demonstrations that is difficult to corroborate and the absence of independent evidence of activity in Iran (p22). The Tribunal accepts that the documentation from Iran Paad was sent directly to the applicant's adviser in the manner claimed. However, it does not accept that this means that they did so independently of the applicant. The applicant or one of his relatives could have easily been in touch with them. The Tribunal notes that the letter from Iran Paad to the applicant's adviser makes claims about the circumstances of the applicant's family. This would suggest that the applicant or a member of his family had been in touch with them to provide them this information. The membership card did not persuade the Tribunal, as it is impossible to verify when this was issued. 13. The Tribunal accorded no weight to the rest of the documentation provided by the applicant for its lack of independence. The Tribunal accepts that sometimes all a protection applicant may be able to provide in support of their claims is information from parties close to them. The Tribunal sees no problem with such information when other aspects of the case are consistent with the information. The problem in this case is that the weight of the evidence is in the other direction. The applicant's claims are contradicted by country information; the claims appear implausible and were advanced only after previous claims were rejected. In these circumstances, the Tribunal is not prepared to give letters of support from persons close to the applicant any weight. 14. The Tribunal notes that the applicant left Iran in late September 2000, possibly on 30 September 2000 as he told the Tribunal. The Tribunal also notes that the applicant left on his own passport, which he claimed to have obtained legally six or seven months before his departure. He variously claimed to have been able to leave the country because his departure was not checked, because the security forces had not been looking for him, to leave without pem1ission and to have illegally. However, given the above findings and the fact that he was able to leave unimpeded the Tribunal is not satisfied that there was anything unusual about the applicant's departure from Iran. 15. In sum, the Tribunal does not accept that the applicant is a member of Iran Paad or another opposition group. Hence, the Tribunal does not accept that he is at risk of serious harm for this reason if he were to return to Iran. Furthermore, the Tribunal notes that there is no evidence of harm towards monarchists in Iran, that they no longer pose a threat to the Iranian Government, that the government has no interest in pursuing them and that they are even able to work for the government (pp 23-24 and 27). Hence, the Tribunal is not satisfied that the applicant would have a well founded fear of harm in Iran even if he and/or his family were perceived to be monarchist sympathisers. The Tribunal notes that the applicant's father, despite speaking English, having worked for US companies before the revolution and allegedly been perceived as taghouti has been able to continue to work for the government for more than two decades and live in Iran without major problems. 16. The Tribunal notes that the act of seeking asylum is not, in itself, an offence in Iran and that awareness of this would result in no more than verbal harassment (p21). Hence, the Tribunal is not satisfied that the applicant has a well founded fear of serious harm for this reason if he were to return to Iran. CONCLUSION 17. 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." grounds of the application 8 The applicant does not appear to have had legal assistance in drafting his application. The grounds are reproduced below exactly as they appear in the application. "a. The decision involved an error of law involving the incorrect interpretation of the applicant law or an incorrect application of the law to the facts as found by the Tribunal or both. b. The decision involved an error of law in that the Tribunal made findings of fact upon which its decision was based that were not rationally supported by probative and it faild to rationally consider the probative evidence that was before it." my reasoning 9 The applicant was not legally represented at the hearing before me today. He made oral submissions which were mostly either of a factual nature or went to the merits of the Tribunal's decision or both. 10 However, the applicant did raise one complaint which was potentially of significance. The complaint was that the Tribunal had not contacted the Iran Paad to find out if he was a member of that organisation. I thought that this might reflect a complaint that the Tribunal had not carried out a procedure required by the Act to be observed, in that the Tribunal had failed to get this information – see s 424(1). But the authorities establish that whether the Tribunal exercises the power conferred by s 424(1) is a matter of discretion. To the extent that the complaint may have been that the Tribunal did not give consideration to the exercise of this discretion, I do not think that it can be said to have erred. At paragraph numbered 12 of its reasons the Tribunal said that it was not satisfied about the reliability of Iran Paad and it detailed its concerns. In those circumstances, I do not think that there is any substance in the complaint. It would, in my view, be most peculiar for the Tribunal to be required to consider obtaining information of this type from an organisation which it did not regard as reliable. 11 I have examined the papers to see whether they disclose any ground of review. 12 I was initially concerned about the Tribunal's conclusions in paragraph numbered 3 of its reasons. In that paragraph the Tribunal accepted the applicant's claims about what had happened to his family between 1982 and 1987, but did not accept that such events constituted persecution and that they occurred by reason of an adverse political profile or were indicative of the applicant and/or his family having such a profile. It will be recalled that those events included the execution of the applicant's cousin. 13 However, it is apparent from paragraphs numbered 4 and 5 of the Tribunal's reasons that the Tribunal distinguished between the cousin and the applicant's immediate family. It stated that the second raid seemed to have been nothing more than a brush with the authorities for infringement of the moral code. The Tribunal noted in the last sentence in paragraph numbered 3 that the applicant and his family lived an otherwise normal and uneventful life in Iran. 14 My initial concern was that the Tribunal had set the threshold for "persecution" too high. Given the matters to which I have just referred, I do not think that was the case. In my view, its approach to assessing and characterising the experiences of the applicant's family does not disclose any incorrect interpretation of the applicable law. It was open to the Tribunal to find that neither his father nor his immediate family had an adverse political profile. 15 The Tribunal then turned to assess those of the applicant's claims which were based on his own experiences, which were related to his alleged membership of the monarchist opposition party known as Iran Paad. The basis for the Tribunal's decision was simply that it did not believe the applicant. This can be seen in paragraphs numbered 8, 10, 11 and 15. The Tribunal did not believe that the applicant was a member of Iran Paad or another opposition group. The Tribunal noted the various accounts given by the applicant about how he was able to leave the country (see paragraph numbered 14) but stated that it was not satisfied that there was anything unusual about his departure from Iran. 16 I very much doubt whether the second ground of the application reflects any permissible ground of review. Even if it does, a perusal of the documents shows that the ground is not made out. 17 In my view, the Tribunal's findings were open to it and there was sufficient evidence and material to justify its conclusion that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees' Convention. 18 In the earlier part of its reasons the Tribunal can be seen to have set out the relevant law correctly and there is nothing later in its reasons to suggest that it did not apply the law as earlier recited. 19 In my opinion, the Tribunal made no reviewable error whether of law or jurisdictional error. Conclusion 20 For the foregoing reasons the application will be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr. A/g Associate: Dated: 18 December 2001 The Applicant appeared in person: Counsel for the Respondent: Mr P R Macliver Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 18 December 2001 Date of Judgment: 18 December 2001