WAEX v Minister for Immigration & Multicultural Affairs [2002] FCA 584

FEDERAL COURT OF AUSTRALIA

WAEX v Minister for Immigration & Multicultural Affairs [2002] FCA 584

MIGRATION - refugee - judicial review - Refugee Review Tribunal - Iranian national - imputed political opinion - alleged collaborator with Mujahedin - claimed Christian convert - rejection of claims as fabrication - no grounds for review established Migration Act 1958 (Cth) WAEX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W53 OF 2002 AND W54 OF 2002 FRENCH J 2 MAY 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W53 of 2002

BETWEEN: WAEX

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 2 MAY 2002

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant 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 W54 of 2002

BETWEEN: WAEX

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 2 MAY 2002

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant 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 W53 and W54 of 2002

REGISTRY

BETWEEN: WAEX

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE: 2 MAY 2002

PLACE: PERTH

REASONS FOR JUDGMENT 1 The applicant arrived in Australia from Iran on 28 October 2000. He lodged an application for a protection visa on 26 March 2001. That application was refused on 11 May 2001. He applied to the Refugee Review Tribunal on 15 May 2001 for review of that decision. On 12 February 2002, the Tribunal affirmed the decision not to grant him a protection visa. On 18 February 2002, he made applications to this Court seeking to overturn the Tribunal decision. There are two applications on different forms. 2 After the applicant arrived in Australia he was interviewed by an officer of the Department of Immigration and Multicultural Affairs ("DIMA"). That was on 8 November 2000. At that time he was asked why he left his country of nationality. According to the officer's record of his answer, he left because he did not have any social rights in Iran. He said that towards the end of the Iran-Iraq war he went to "the Barracks" to volunteer. While he was there (i.e. in the army) Mujahedin came and wanted to film the barracks. He and his fellow soldiers were made to look as if they were welcoming the Mujahedin to the barracks. He was a sergeant at the time. He was subsequently arrested. He was to be charged. He escaped to Khasr-e-shirin. Because he went to court he was banned from going to university and from holding government jobs. (This rather confusing answer is in substance as noted by the interviewing officer. It does not purport to be a transcript and really only makes sense when read with the detailed claim made in support of his application for a protection visa which is referred to below.) 3 His other reason for leaving Iran was because of his brother who was killed by a Kurd called Nemat. He said Nemat was forcing his brother to pay extortion money. The applicant's brother worked with Nemat in a business and they were in conflict. Nemat had killed ten other people. The family reported this to the police, but the police would not do anything about the killing of his brother. That was on 24 November 1993. The applicant was also asked if he had any reasons for not wanting to return to Iran. He said he could not continue his studies, which he wanted to do. He could not work for the government. His brother had been killed and the police would not do anything. His life was in danger from Nemat's tribal group. He wanted to live in a democratic society. He was thinking about becoming a Christian. He thought people should have social rights and he preferred equality. 4 A more much detailed claim was made in support of his application for a protection visa. The applicant said his family was not on good terms with the Islamic regime in Iran because his father had been a contractor for the Tehran City Council during the time of the Shah. He was friendly with many people and he was well known because of his acquaintances, among them people like General Rahimi. His family was under surveillance after the Islamic Revolution. 5 The applicant's main problem with the Iranian regime started at the end of the Iran-Iraq war. He was a sergeant there. The Mujahedin army attacked the Allah-o-Akbar Garrison. They were surrounded by the MKO army and there was no escape. He decided they should surrender and he instructed his soldiers accordingly. He said that as the Mujahedin army approached, they submitted and started cheering and calling on them to save their lives. The Mujahedin released them and let them go. They wandered in the mountains for three days without water and food and finally arrived at Kermanshah. They were harshly tortured and sent to court. He was the sergeant in the group so all the soldiers laid the responsibility on him. He was convicted of cooperation with the Mujahedin and of treachery. He was tortured by Internal Security. Finally he was sent to the Revolutionary Court and sentenced to four years in prison. He said he was in prison from 1989 to 1993. After his release he had to present himself to the Revolutionary Court every two months. He was banned from entering university and from getting any government job. 6 He had a brother called Hassan who was an activist against the regime. On 24 November 1993, Ettela'at had raided their house. He and his brother ran away and his brother was killed by an Ettela'at guard. The applicant was arrested and was again tortured and persecuted by Ettela'at. They accused him of cooperating with his brother in possessing and distributing anti-regime literature. 7 During this time his father died of heartbreak, according to the applicant. His younger brother, who had lost both father and older brother, went to the mosque in his suburb and started abusing the regime. He was arrested and lashed in front of other people. The applicant himself was sentenced to three years in prison, from 1994 to 1997. When he was released in 1997, he started preparing and distributing anti-regime literature. He said he was very cautious in the way he did this. When an uprising occurred at the university he contacted some of his brother's friends. They said that Ettela'at had raided his house. They had taken his cassettes and letters and wanted to know where he was. He said he was very afraid and decided to flee from Iran. He arranged with a smuggler to get a forged Iranian passport. He flew to Malaysia and then to Indonesia. 8 He said that if he were arrested by Ettela'at he would be killed. He said the reason he did not tell the whole story in his first interview was because he believed that Western countries and Iran were on good terms. He was afraid to say there was a death penalty waiting for him in Iran. He thought this would make the Australian government consider him as a criminal because of the good relationship between Australia and Iran. 9 In support of his application to the Refugee Review Tribunal ("the Tribunal"), a further submission was made by his migration agent. The agent said that his fears of persecution in Iran arose from his two periods of imprisonment for political offences, for the discovery of anti-regime material during a raid on his home, for having fled the country illegally, for having insulted the regime by applying for asylum in another country and, more recently, for having converted to Christianity. 10 The Tribunal received that submission and a supplementary submission and had a hearing at which the applicant gave evidence. There was a further hearing in which the Tribunal inquired into the applicant's claimed conversion to Christianity. In its reasons for decision the Tribunal reviewed the evidence contained in the applicant's submissions and what he had said in answer to questions from the Tribunal during the hearings. It also made inquiries of him about his marriage and the birth of his daughter, which appeared to have been possible only if he and his wife had conceived while he was in prison. In its findings and reasons, the Tribunal looked at various aspects of the applicant's claims and evidence. It referred first to his family background. It noted that although his father had been prevented from doing government work after the revolution, this had not affected the applicant himself. He was able to continue his education and even served in the military forces. The Tribunal did not accept that the authorities would have permitted him to hold the position he did if they had any reservations about his loyalty and reliability. 11 The Tribunal then considered the general credibility of the applicant. It noted that in his initial interview he had failed to mention the most significant of the problems that he later claimed. He had said that this was because he was afraid that there were good relations between Australia and Iran and that for this reason he did not tell the whole story. However, this omission led the Tribunal to doubt the believability of his later claims. 12 The Tribunal then considered his claim that the applicant had difficulties with the Iranian government following his surrender to the Mujahedin. It did not believe his account of this surrender, nor did it believe that he had been charged and found guilty of cooperation with them. If his story had been true, his sentence would have been far more severe. He would not have been dealt with by the courts and with due process. Nor did the Tribunal accept that the Mujahedin would accept the surrender of a group of forty-five men from government forces together with their sergeant and then just let them go. 13 The Tribunal considered his claim that he had been in prison between 1994 and 1997. It accepted that his brother had been killed, but not for the reasons which he gave. It found it unlikely that the family would have gone to the police and lodged a complaint if the person who shot his brother were a member of the local Komite. The Tribunal accepted that the matter was reported to the police because the brother had been killed, but not for the reasons that the applicant gave. The Tribunal also pointed to inconsistencies in the evidence given by the applicant about the dates of his release. It noted that during the period he said he was in prison, his daughter was conceived and born. He had said this was as a result of conjugal visits between himself and his wife, but the independent material before the Tribunal stated that the Evin prison, where he said he was detained, was for political prisoners. Prisoners at Evin Prison were denied regular visits by families and in some cases families were not even told where the detainee was. The Tribunal, did not accept that the applicant would have been able to father a child in these circumstances. It did not believe that he served the sentence he claimed he had served from 1994 to 1997. Nor did it accept that he had anti-regime materials at his home. When the claims were considered as a whole the Tribunal found they had been fabricated simply to provide a basis for claiming asylum. It did not accept that he left Iran on a false passport and did not believe his conversion to Christianity was genuine. Even if it were genuine, he described his activities as attending a Christian group on a weekly basis, reading his Bible and worshipping and discussing the faith with other members of the group. The Tribunal did not accept that he would seek to convert other people in Iran and thereby face a real chance of persecution. 14 In summary, the Tribunal found that the applicant did not have a political profile in Iran and had attempted to fabricate an account to suggest that he did. He was not of concern to the authorities at the time he left Iran. Even if he had departed irregularly and made asylum claims, this did not indicate that he would face a real chance of persecution. It did not accept he was a genuine convert to Christianity. Even if he were, as a simple person, he could return to Iran and practise his faith without a real chance of persecution for reason of religion. 15 The applicant had argued, in support of his application to this Court, that on his story he falls within the framework of the Refugee Convention and, no doubt, if his account of it were accepted, he would fall within the framework of the Convention. However, the difficulty he faces is that the Tribunal did not accept his account of what happened. 16 The decision of the Tribunal is final and conclusive according to the provisions of the Migration Act 1958 (Cth). Although the Court has some power to interfere with decisions of the Tribunal in cases of legal error, it cannot interfere with the factual conclusions of the Tribunal. What the applicant wants the Court to do, the Court has no power to do. The application is dismissed and the applicant is to pay the respondent's costs of the application. 17 These reasons were delivered orally following the hearing. They were delivered via video link in the hearing of the applicant and interpreted to him by the interpreter present in