FEDERAL COURT OF AUSTRALIA Negad v Minister for Immigration & Multicultural Affairs [2002] FCA 194 MOHAMMAD FARHAD NEGAD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 307 of 2001 CARR J 5 MARCH 2002 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 307 OF 2001 BETWEEN: MOHAMMAD FARHAD NEGAD Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: CARR J DATE OF ORDER: 5 MARCH 2002 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 W 307 OF 2001 BETWEEN: MOHAMMAD FARHAD NEGAD Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: CARR J DATE: 5 MARCH 2002 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 2 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 2 December 2000. On 7 January 2001 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 ("the Act"). On 27 February 2001 a delegate of the respondent refused to grant a protection visa and on 2 March 2001 the applicant applied for review of that decision. the applicant's claims and the Tribunal's decision 2 The applicant's claims when interviewed on arrival, were, in summary as follows: · He was a single 32 year old Iranian citizen whose parents and five siblings remained in Iran. He had one other sibling living in Canada. His religion was Muslim Shi'ia and his ethnicity was Bakhtiari. · He was educated for twelve years. He worked as a denture technician from 1991 to 2000 and also as a physical education teacher at a private school from 1999 to 2000. · The reason he left his country was because his life was in danger from the Sepah Etalaat. He said that he had imitated the voice of "Rafsanjani" who is the second most powerful man in Iran. · He was at a wedding party with a group of friends and was joking around with the microphone imitating Rafsanjani. · About ten to twelve days later he received a phone call from someone who told him that he had been taped (later clarified as being a videotape) at the wedding. · He became very concerned because he knew that the Etalaat (Intelligence) would be after him. · He left home for two or three months and contacted his family who informed him that people had come looking for him. · He became concerned and did not go home or to work because he was scared. He decided to flee Iran and his parents agreed that he should. · Prior to this incident he had no intention of leaving Iran and he had a good job there. · He left Iran on 21 November 2000 and went to Malaysia where he remained for seven days before going to Indonesia (for thirteen or fourteen days) where a smuggler arranged to bring to him Australia. · If he returned to Iran he would be taken by the Etalaat and was not sure that he would survive. 3 In the written statement of claims which accompanied his application for a protection visa, the applicant gave more detail, but substantially repeated the above claims. 4 The claims were again repeated at the hearing before the Tribunal. At that hearing the applicant told the Tribunal that he had left Iran through an airport (which he had identified in his application form as being Tehran airport) using his own passport, having paid a bribe to a friend in the Sepah. He added that in January 2001 he had telephoned his brother in Canada who had told him that as a result of his (the applicant's) actions his father had been arrested and that Sepah officers had come to his house since his departure and said they were aware that he had impersonated Rafsanjani and they wanted him. The applicant told the Tribunal that he had informed his representative about this matter about 20 days to a month before the hearing. The hearing was on 20 April 2001. There was no mention of this matter in the migration agent's submissions sent to the Tribunal on 19 April 2001. the Tribunal's decision 5 Rather than attempt to summarise the Tribunal's findings and reasons, I incorporate all of them into my reasons for judgment. I have added numbered to the paragraphs to facilitate the references which I make later in these reasons. "FINDINGS AND REASONS 1. The Applicant claims to fear persecution as a consequence of an action he took at a wedding party. 2. That action was to impersonate Rafsanjani, a senior religious and political figure in Iran. 3. In determining this matter I have considered the evidence given by the Applicant and also taken account of independent material put to the Applicant at the Tribunal hearing to determine whether or not the Applicant faces a "real chance" of persecution for a Convention reason such that his claimed fear in this regard is well-founded. The Applicants Claims. 4. In summary the Applicant's claims are that he has been impersonating Rafsanjani for friends since 1996 without incident. 5. In September of 2000 he attended a wedding held in a private home and where there were between thirty and forty guests in a large room. 6. In that setting he performed, impersonating Rafsanjani for the entertainment of the guests at the wedding and after the assurance of the host that this would not be problematic. 7. He did not notice anything untoward and did not see any video camera focused on him at the time. 8. Three days later he was contacted by a friend who he claimed was an officer in Sepah who told him that a video of a person impersonating Rafsanjani was held by his office and he asked if the person performing was him. 9. Ten days later the Applicant's parents were visited by two unknown men asking for the Applicant. 10. The Applicant became afraid and stayed in a friend's house in Ahvaz for the next two months . 11. He then left Iran using his own passport which contained accurate details of himself. 12. He claimed that his friend in Sepah had arranged for his safe passage through the airport although he didn't know how this was done. 13. The Applicant claims that he is now so afraid that he regrets ever impersonating Rafsanjani, and states that he would do so again (sic). My Findings in Regard to the Applicant's Claims 14. I accept that the Applicant can imitate Rafsanjani and I accept his claim to have done this for the entertainment of friends from 1996. 15. I also accept that he did so at a wedding party in front of thirty or forty guests on the assurance from the host that it was safe to do so. The Claims to be of Concern to the Authorities. 16. However, I find that the Applicant was not of concern to the authorities. 17. My reasons for finding that he was not of concern are: 18. Firstly, the nature of the wedding, as described by the Applicant was such that I do not accept that he could have had a video taken of his performance in a setting of thirty to forty people in a room the size he described without being aware that it was happening. Accordingly I find no video was taken. 19. The Applicant initially said that he believed that he was deliberately set up when I suggested the way he was putting his claims suggested that. 20. However, he later agreed that if that was the case the authorities would have detained him immediately since they would have had the evidence they needed. 21. He then claimed that it possibly came to the attention of the authorities as a result of the video being passed from hand to hand and eventually falling into the wrong hands. 22. I also find this implausible since, according to his account, the authorities had it within a matter of days after the wedding. 23. If that was the case and the matter was serious, as the Applicant claims, it would have been a simple matter to trace the performance to him and arrest him immediately rather than wait for about two weeks and alert him to a problem by having two men go to see him and then fail to take any further action as he has claimed. 24. Further, since he claimed his friend in Sepah had discovered the authorities in that office had the video I do not accept that he would have failed to have asked his friend in Sepah for more details as to how the video came to be in the hands of the Etalaat and what action was being taken. 25. If, as he claimed, the matter was serious, and his friend had the ability to assist him to leave the country and he was in possession of a valid passport I am of the opinion that he would have left immediately before any search was mounted. 26. However, he did not take that course of action and this, together with my findings below, leads me to find that he was not of concern to the authorities. a. The nature of the claimed concerns to the Applicant. 27. The Applicant claimed that he became concerned when two men visited his family. He claimed he does not know who those men were or what their purpose in looking for him was, but claimed that he came to the conclusion that the men were looking for him in regard to the alleged video clip of his performance at the wedding. 28. I find that even if two men did visit his parents home looking for him that the assumption that he was wanted in connection with the performance at the wedding is speculation without any basis. 29. The Applicant remained in the country for about two months after the claimed visit of the two men and the Applicant makes no claims that they ever visited again or that anyone else sought him in regard to the video. 30. I do not accept that this would be so if, as the Applicant claims, this matter is one of serious concern. 31. He claimed his concerns are based on a friend's phone call and one unexplained visit of two unknown men to his parent's home ten days after the wedding with no further action in a period of two months. 32. I do not accept that the authorities were aware of the impersonation and thus were not concerned in any way about the Applicant's performance at a private wedding party. 33. The independent material I discussed with the Applicant at the hearing was that two writers who wrote a blasphemous play were pardoned of a three year sentence, and leads me to find that the Applicant's claimed performance would not have been treated harshly, even if it was known that he had done so. 34. The Applicant claimed that his ability to imitate Rafsanjani would be of serious concern since he had the ability to imitate him in a real situation and thus be of security concerns. 35. I find this to be far fetched. If this was the case, and there was a risk that the matter would be so seriously regarded, I do not accept that the host of the wedding party would have so readily assured the Applicant that there was no risk as the host could also have been held responsible for permitting the entertainment to take place. 36. I find that the Applicant was not of concern to the Iranian authorities since there was no evidence to suggest that they intended to look for him or take action in the two months he remained in Iran following the wedding. 37. I further find that the independent material, the actions of the wedding host and the applicant's demonstrated ability to leave the country in his own name are such that his unsupported assertion to have been of concern to the authorities shortly after the wedding amounts, at best, to fanciful speculation. b. The Applicant's ability to use his passport to depart. 38. The Applicant claimed that he used his own passport to depart from Iran and I find that this is so. 39. However, he claimed that he was only able to do so by paying his friend in the Etalaat to ensure that he could pass through the airport checks without being detained. 40. As discussed above I find authorities were in no way concerned about him. 41. Further, if as he has claimed, this matter was of such concern that the authorities would take serious action amounting to persecution, I do not accept that his friend would have used his influence and connections to arrange for the Applicant to leave in his own name since the independent material, which I accept, advises that the checks are thorough. 42. The risk of his friend's involvement being discovered in such a scenario is such that I do not accept that his friend would have taken that risk even if, as the Applicant claimed at the hearing, he paid his friend a large sum of money. d. His claim to have become of greater concern following his departure. 43. At no time, prior to the hearing, was the Tribunal informed of any further claims that the authorities were looking for the Applicant. 44. However, at the hearing the Applicant claimed that the authorities had arrested his father and had come to his family home after his departure looking for him. 45. Even if the Applicant had informed his adviser of this, as he claimed, I do not accept this eleventh hour claim to have any substance and I reject it. 46. For the same reasons as discussed above, if the Applicant was of concern to the authorities and his actions were taken to be as serious as he claimed they would be I do not accept that the authorities would have failed to take genuine steps to locate the Applicant in the two months he remained in the country. 47. Furthermore, I find it implausible that the authorities, having failed to take any action in the two months the Applicant remained in Iran, would arrest his father after the Applicant had left the country. 48. I find this later claim to be a desperate attempt to sustain his claim to have been of concern. Consideration of any Prospective Harm on Return 49. In summary, I find that the Applicant performed a brief satirical performance of a senior government and clerical figure at a private wedding party. 50. Ido not accept that a video of the performance was taken or that the authorities became aware of the performance. 51. I find that the Applicant was not of concern to the Iranian authorities prior to his departure from Iran and that he was able to leave openly in his own name using his own passport. 52. The Applicant has stated that he would not impersonate Rafsanjani in the future and thus, he would not put himself at risk of any adverse consequences in that regard. 53. Since I have found that he was not a risk of adverse action when he left Iran and that he would not be impersonating Rafsanjani in the future it follows that he faces no prospective harm in this regard. 54. In regard to any consequences he may face as a result of his unexplained absence and his application for a protection visa in Australia I note there is no evidence which indicates that the authorities are aware of that application. 55. Furthermore, even if they should become aware of it or assume that he had made application I accept the independent material from the Dutch Foreign Affairs Report and find that the Iranian authorities would not impute a political or religious opinion to the Applicant because of his failed attempt to gain asylum in Australia. 56. This being the case, I find that the Applicant's claimed fear of persecution lacks any objective basis and thus is not well founded. CONCLUSION 57. 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 6 The grounds of review were stated as follows: "a) 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. b) The decision involved an error of law, being an error of law involving the incorrect interpretation of the applicable law of an incorrect application of the law to the facts as found by the Tribunal or both." my reasoning 7 The applicant was not legally represented at the hearing before me today. He had forwarded to the Court some written submissions last December following an adjourned hearing on 7 December 2001. The applicant also made oral submissions today. Those written and oral submissions were mostly of a factual nature which related to the merits of the Tribunal's decision. As I tried to explain to the applicant, this Court has a very limited jurisdiction to review the Tribunal's decision, but the merits of his case were for the Tribunal to decide. The applicant's written submissions included some references to the Refugees Convention and to Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379. Nothing in those references was inconsistent with the Tribunal's reasoning. 8 I have scrutinised the papers and the Tribunal's reasons to see whether there was reviewable error. 9 In the first parts of its reasons the Tribunal set out the relevant law correctly and, in my view, there is nothing later in its reasons to suggest that it did not apply the law as earlier recited. 10 The essential basis for the Tribunal's decision was simply that it did not believe that the applicant's performance at the wedding had been videotaped (see paragraphs numbered 18 and 50 of its reasons set out above. It did not believe that the authorities had become aware of the applicant's impersonation of Mr Rafsanjani (see paragraphs numbered 32 and 50 of its reasons). It did not believe the applicant's evidence concerning payment of a bribe to pass through the airport checks (see paragraphs numbered 38 to 42 of the Tribunal's reasons above). It rejected what it described as the applicant's eleventh hour claim that his father had been arrested and the authorities had come to his family home since his departure (see paragraphs numbered 43 to 48 of the Tribunal's reasons above). The Tribunal found that the applicant was able to leave Iran openly in his own name using his own passport and was not of any concern to the Iranian authorities. It further found, on the basis of independent material, that the Iranian authorities would not impute a political or religious opinion to the applicant because of his failed attempt to gain asylum in Australia. 11 In terms of the grounds of review I am satisfied that there was more than sufficient 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. 12 Neither the applicant's written or oral submissions nor my examination of the papers have disclosed any error of law. 13 In my opinion, the Tribunal's conclusion that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention was open to it on the material before it. 14 In my view, the Tribunal made no reviewable error whether of law or jurisdictional error. Conclusion 15 As no jurisdictional error, error of law or any other reviewable error has been disclosed, the application will be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr. Associate: Dated: 5 March 2002 The Applicant appeared in person: Counsel for the Respondent: Mr S A Walker (on 7 December 2001) and Mr L A Tsaknis (on 5 March 2002) Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 7 December 2001 and 5 March 2002 Date of Judgment: 5 March 2002