Nejad v Minister for Immigration and Multicultural Affairs [2001] FCA 1830

FEDERAL COURT OF AUSTRALIA

Nejad v Minister for Immigration and Multicultural Affairs [2001] FCA 1830

DARYOUSH HOOSHMAND NEJAD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 380 of 2001 CARR J 18 DECEMBER 2001 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W380 OF 2001

BETWEEN: DARYOUSH HOOSHMAND NEJAD

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 W380 OF 2001

BETWEEN: DARYOUSH HOOSHMAND NEJAD

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 16 August 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 1 October 2000. On 20 February 2001 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 15 June 2001 a delegate of the respondent refused to grant a protection visa and on 20 June 2001 the applicant applied for review of that decision.

the applicant's claims and the Tribunal's decision 2 The applicant's claims were, in summary, as follows: · He was born in 1958 in Abadan where he had lived at the same address for fourteen years before his departure from Iran. · He was married with two children. His wife and children remain in Abadan. · He was employed as an electrician in the Abadan refinery from 1988 until 2000. · He formed a union known as the Abadan Refinery Workers Union to negotiate better pay and conditions with the employer. · He was an organiser of a demonstration which resulted in the oil company calling in riot police. He, along with other workers, was bashed. · He was involved, with other union members, in demonstrations about polluted water at Abadan at the end of June or the beginning of July 2000. The demonstration became violent and the police were called in. A friend of his was shot in the leg and the applicant helped to take him to a nearby house. · The applicant believed that the demonstration was recorded on video, that he was identified as a participant and a friend had told him that he had been identified as one of the leaders of the demonstration. He was told that if he was arrested he would face severe consequences and possibly death. · He made his way to Ahwaz where he stayed with a friend. He learnt that government intelligence agents had raided his house in Abadan in order to arrest him. He was told that most of his colleagues were arrested and had disappeared. · He became frightened for his safety and decided to leave the country. · He had left Iran legally through Teheran airport using a passport which had been issued to him in 1995. A people smuggler had paid the Iranian authorities because he (the applicant) thought that his name might be on the blacklist. · He had been detained on many occasions because he wore a short-sleeved shirt or because he was out walking with his wife and daughters. On these occasions he was detained for a few hours at a time. · At the hearing before the Tribunal the applicant claimed that he had become a member of the Iran Paad, a monarchist organisation, in December 1996. · He had, at the demonstration in Abadan, been the leader of a group of 30 people who shouted slogans against the condition of the water in Abadan, distributed Iran Paad pamphlets and shouted slogans against the Supreme Leader. The group also distributed 150 newsletters, of which he personally distributed 30. · When questioned by the Tribunal, the applicant stated that he was prominently involved in the demonstration but had not been arrested because the security forces did not start to arrest people until a week after the events occurred. · The applicant told the Tribunal that he did not fear harm, if returned to Iran, because of his involvement with the union; he feared that he would be harmed because of his activities with Iran Paad and because of his participation in the demonstration in Abadan. 3 I shall not attempt to summarise the Tribunal's findings and reasons. I set them out below in full. I have numbered the paragraphs to facilitate the references which I make later in these reasons. "FINDINGS AND REASONS 1. The applicant claims that if he returns to Iran he will be persecuted because of his activities with Iran Paad and his participation in demonstrations in Abadan. In assessing the applicant's claims I am required to determine whether he has a well-founded fear and if so whether what he fears amounts to persecution for a Convention reason. 2. When determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the credibility of the applicant. When assessing credibility, the Tribunal must be sensitive to the difficulties often faced by asylum seekers and should give the benefit of the doubt to those who are generally credible, but unable to substantiate all of their claims. However, the Tribunal is not required to accept uncritically any and all allegations made by an applicant. In addition, it is not necessary for the Tribunal to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. Moreover, the Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality. See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MlEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MlMA (1998) 86 FCR 547. If the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true. (See MlMA v Rajalingam (1999) FCR 220). 3. I have a number of problems with the applicant's evidence. Significant aspects of it were implausible, internally inconsistent and inconsistent with the independent evidence. Overall the problems with the applicant's evidence are such that I am unable to be satisfied that he has a well-founded fear of persecution for a Convention reason. My reasons for this follow. I accept that the applicant was involved in the union in his workplace. I accept that in the period leading up to the establishment of the union some ten years ago, the applicant was involved in a number of sit-in demonstrations protesting against violations of workers' rights. I accept that on one occasion the anti-riot police were called in during a demonstration and that the applicant and other workers were physically assaulted when the police broke up the demonstration. I accept that the applicant has continued to be involved in protests at work when the union has not been able to negotiate matters with management. 4. However, I note that the applicant maintained the same employment at the refinery from the 1988 until his departure from Iran in 2000. The applicant did not claim that his work conditions were less advantageous than those of other workers because of his union membership. Moreover, the applicant indicated that he was on a yearly contract which had been renewed every year from 1988. In my view, if the applicant's employer had any difficulty with the applicant's union activities it is implausible that his contract would have continued to be renewed. In my view, the occasion on which the applicant was assaulted by riot police was an isolated incident and not evidence that the applicant was subjected to persecution for reasons of his union membership. I note that at the hearing the applicant specifically said that he did not fear returning to Iran because of his union membership or activities. In the circumstances, I do not accept the assertion made in the letter provided by the applicant to the Tribunal at the end of the hearing in which it is stated that the applicant was arrested on many occasions because of his activities defending workers' rights. Overall, I cannot be satisfied that the applicant has a well-founded fear of persecution for a Convention reason arising out of his union membership. 5. I accept that applicant participated in a demonstration in Abadan in July 2000 concerning the quality of the water in Abadan. However, I do not accept that the applicant is of any interest to the Iranian authorities as a result of his participation in the demonstrations. Firstly, I consider that if the applicant had attracted the adverse attention of the authorities because of his involvement in the demonstration, they would have arrested him at the time. I am particularly of this view in light of the applicant's evidence that he was a prominent participant who organised a group of protesters and was at the front of the demonstration for four to five hours a day for two days. In my view, if the applicant had taken a prominent role in the demonstrations, it would have been a straightforward matter for the authorities to have arrested the applicant while he was at the demonstration. 6. The applicant claimed that arrests were not made until a week after the demonstration. In my view, the applicant's assertion in this regard is not supported by the independent evidence before me. The independent evidence, which I accept, does not indicate that arrests took place after the days on which the demonstration occurred. Moreover, the independent evidence suggests that those people were arrested for offences involving property damage. The independent evidence does not suggest that demonstrators not involved in acts of violence were arrested, particularly once they had already left the scene. In my view, if the applicant was not arrested at the demonstration itself, it was because he was an ordinary participant, and not a demonstration leader as he has claimed and because he was not involved in committing property offences. 7. Secondly, although the applicant claims that he was wanted for arrest for several weeks before he left Iran, he was nevertheless able to leave the country through the airport in Tehran using a passport in his own name. The applicant claims that he was able to do so because the contact that he used to exit Iran paid a bribe to facilitate his departure. However, the independent evidence before me, which I accept, is that it would be virtually impossible for a person who was wanted by the Iranian authorities to leave Iran through the airport using a passport in his own name. 8. Thirdly, although the applicant claims that at the time he left Iran he was wanted for arrest because he participated in the demonstration in Abadan, he made no reference to this when he was interviewed upon arrival in Australia. When I asked the applicant about his failure to failure to mention this claim in his arrival interview, stated that he had been under pressure and that he did not have a lawyer. When I asked him why not having a lawyer would make any difference, the applicant then stated that he did not know why he had not mentioned the matter. 9. I accept that for a variety of reasons asylum seekers may be reluctant to disclose full details of their claims on arrival in Australia. This reluctance may arise from asylum seekers' previous experiences with the authorities in their own country, their concern about being sent back to where they came from, or distress and anxiety in relation to the situation they find themselves in. In some cases, they may have been given quite specific instructions about what they should and should not say on arrival in Australia. I accept that reluctance to provide full details of claims is, in many cases, quite understandable. In addition, the record of the interview may be inaccurate for a variety of reasons, including interpreting errors. Accordingly, it may be, at times, inappropriate to place weight on the record of the interview. 10. However, in this case the applicant was specifically told that the interview was an opportunity for him to give reasons why he should not be removed from Australia. He was also told that if he said something different at a later interview, this might raise doubts about the reliability of what he had said. During the interview the applicant referred to the Abadan water demonstration and specifically referred to having been involved in the demonstration and to his friend having been shot. In my view, if the applicant did fear that he was at risk of being arrested because he participated in the demonstration, he would have made some reference to this during his arrival interview, however tentatively. 11. Overall, I am unable to be satisfied that the Iranian authorities wanted to arrest the applicant because he participated in the demonstration in Abadan in July 2000. I am of the view that the applicant has fabricated this claim in an attempt to enhance his claims to refugee status. I note the alleged summons the applicant has provided in relation to this matter. However, the document does not overcome the problems I have with the applicant's evidence and I am unable to place weight on it as evidence of the truth of the applicant's claims . 12. The applicant's other major claim relates to his membership of Iran Paad. I accept that the applicant has joined Iran Paad, as evidenced by the photocopied membership card he provided to the Tribunal. However, I note that this card is undated. The applicant claimed that he joined the organisation in 1996 and that he was active in the organisation in Iran. I do not accept the applicant's claims in this regard. Firstly, neither in his arrival interview or in his application for a protection visa did the applicant mention anything about having been involved in political activities in Iran. At the hearing the applicant stated that he did not do so because he was not allowed to say anything about Iran Paad without permission. However, if the applicant had been involved in a political organisation in Iran, there would have been nothing preventing the applicant from averting to this even if he did not provide full details until after he had cleared it with the organisation concerned. 13. Furthermore, even if the applicant had decided not to refer to Iran Paad in his arrival interview for the reason he has claimed, I consider that once the applicant had access to legal advice and representation he would have been in a position to confirm his position and disclose his political activities. In my view, the failure of the applicant to make any reference whatsoever to having been involved in political organisation in his arrival interview or in his protection visa application suggests that the applicant did not join Iran Paad until after he arrived in Australia. 14. In any event, the independent evidence before me, which I accept, is that Iran Paad is not active inside Iran. In the circumstances, even if the applicant was a member of the organisation before he left Iran, I cannot accept that he engaged in any activities as a consequence of that membership. I therefore do not accept that the applicant distributed Iran Paad pamphlets at the demonstration in Abadan. Furthermore, the independent evidence also indicates that the Iranian authorities are not threatened by monarchist sympathisers. In the circumstances, I do not accept that the applicant would be at risk in Iran because he has joined Iran Paad. 15. I note the applicant's claim that he was detained for a few hours on a number of occasions for such things as wearing a short-sleeved shirt or walking with his wife. I accept that the applicant has been detained on several occasions for these reasons. However, the applicant's evidence does not suggest that he was subjected to serious harm on these occasions. Moreover, there is nothing in the applicant's claims in this regard which suggest that he was detained for reasons of his race, his religion, his membership of a particular social group or his political opinion. 16. Overall, I accept that the applicant was a union member, but I am not satisfied that he has a well-founded fear of persecution for this reason. I accept that the applicant was detained on several occasions for matters such as wearing a short-sleeved shirt. However, I am also not satisfied that the applicant has a well-founded fear of persecution for this reason. I accept that the applicant attended a demonstration in Abadan in July 2000, but I do not accept that the Iranian authorities had any interest in the applicant for this reason at the time he left Iran or that they have any interest in him for this reason currently. I accept that the applicant is a member of Iran Paad. However, I am not satisfied that the applicant was involved in this organisation in Iran, or that the authorities would have any interest in him because he has joined the organisation. As the independent evidence indicates that Iran Paad is not active in Iran, I am of the view that the chance the applicant would engage in Iran Paad activities in Iran in the reasonably foreseeable future is remote. 17. I have considered the applicant's claims both individually and cumulatively. However, I am unable to be satisfied that he has a well-founded fear of persecution for a Convention reason. CONCLUSION 18. Having considered the evidence as a whole, I am not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. He therefore does not satisfy the criterion set out in s.36(2) of the Act for a protection visa."