Mehrabani v Minister for Immigration & Multicultural Affairs [2001] FCA 883

FEDERAL COURT OF AUSTRALIA

Mehrabani v Minister for Immigration & Multicultural Affairs [2001] FCA 883

MIGRATION – application for review of decision by Refugee Review Tribunal to affirm decision of respondent's delegate to refuse the grant of a protection visa – whether the Tribunal erred in law or fell into jurisdictional error. Minister for Immigration and Multicultural Affairs v Yusuf; Minister for Immigration and Multicultural Affairs v Israelian [2001] HCA 30 referred to ALI REZA MEHRABANI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 197 of 2000 CARR J 11 JULY 2001 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 197 OF 2000

BETWEEN: ALI REZA MEHRABANI

Applicant

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

Respondent

JUDGE: CARR J

DATE OF ORDER: 11 JULY 2001

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 W 197 OF 2000

BETWEEN: ALI REZA MEHRABANI

Applicant

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

Respondent

JUDGE: CARR J

DATE: 11 JULY 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 31 October 2000, 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 national of Iran, arrived in Australia illegally in July 2000. His evidence was that he departed from Iran via Tehran airport using a false Iraqi passport (photo substitution) which he had returned to the people smuggler who arranged his travel to this country, eventually from Indonesia. In his protection visa application, the applicant stated that he had "ripped up" his passport. On 23 July 2000 the applicant applied for a protection visa. On 30 August 2000 a delegate of the respondent refused to grant him a protection visa. On 5 September 2000 the applicant sought review of the delegate's decision by the Refugee Review Tribunal.

The applicant's claims and the Tribunal's decision 2 The applicant's claims, in summary, were as follows: · He is 27 years of age and single, has completed secondary school education in Iran and last worked there as a shopkeeper. · At the end of 1999 and the beginning of 2000 he supported a reformist candidate in his local area at the elections by disseminating information and giving speeches throughout his area to large groups of young people. · Many young people identified with him due to his long hair and his ideas. · He had openly criticised the government for its political and religious oppression and the opposition candidate for his policies and misuse of capital. · He had no formal political affiliation, but was regarded as a member of the reform movement. However, in reality he just used his position to promote his own ideas. He disagreed with the intention of the reformist movement to work for change within the system. · The candidate whom he supported (at least ostensibly) was duly elected and took his place in the Parliament. · While on his way home a few days before the second ballot in February 2000, he was severely beaten by four people who threatened him with imprisonment and even death if he continued to support the reform candidate. They threatened to report him to the revolutionary guards or the Information Ministry because of his expression of political opinion. He recognised one of his attackers as belonging to the Intelligence Service. · There was no-one with whom he could lodge a complaint about the above attack which had any prospect of being properly determined. Accordingly, he followed the person mentioned immediately above and with the assistance of three friends physically assaulted him one evening as he was making his way to the mosque. · The shop, which he leased, was near a mosque. It was closed down by the shopkeepers' association for about a month from April 2000, but was re-opened about six weeks before his departure from Iran. The shop was closed due to conflict between the applicant and the local imam due to the applicant's long hair, his political views and non-attendance at the mosque. · He had kept his shop open on some Fridays, but was forced to close it on some other Fridays as he was subjected to intense pressure and was called an atheist. · The imam had summoned him to explain his actions at a meeting. He had informed the imam that he was an atheist and did not believe in praying. This information had been referred to the Intelligence Service which detained him for a day before his shop was closed down temporarily by the shopkeepers' association. · When his shop was re-opened, he was shunned and abused and the owner did not want him there any longer. · He went into hiding because he feared that his name was on a black list. After obtaining an Iraqi passport in the name of another person, with his own photograph substituted on it, he departed Iran. · Since his arrival in Australia, his lawyers had accidentally sent a fax to the Iranian authorities requesting a police clearance in relation to the applicant. In a telephone call to Iran (shortly before the hearing before the Tribunal) he had been told that his father had been taken to the Information Ministry for questioning and that one of his sisters had also been interrogated about his location and why there was no record of his departure. 3 Rather than 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 to them made below. "DISCUSSION OF EVIDENCE AND FINDINGS 1. The Tribunal accepts that the applicant's father incurred a war injury and that he has never been properly compensated or recognised for his service. While accepting that the applicant and his family are aggrieved by a lack of official recognition the situation outlined by the applicant does not disclose a Convention ground according to which the applicant faces a real chance of persecution. 2. The Tribunal also accepts that the applicant campaigned in favour of a reformist candidate at recent elections in Iran. It notes that the applicant had no formal political affiliation. It further notes that the candidate whom the applicant supported was elected to the parliament and that he has since taken his seat there. 3. In relation to elections in Iran the United States Department of State Country Reports on Human Rights Practices, 1999, remarks that: [Here the Tribunal set out extracts of what is usually referred to as country information.] 4. It is apparent that reformist candidates have not only campaigned openly, but have had very substantial electoral success in recent years. Aforementioned information indicates also that the candidate whom the applicant supported would have passed official review prior to being able to contest the election. There are no reports indicating the election campaigns were characterized by violence or that the State would have been unable or unwilling to afford protection to any persons who happened to be victims of any violent incidents during election campaigning. 5. While accepting that the applicant was beaten and threatened shortly before elections held in February 2000 the Tribunal finds that the incident was an isolated one, out of character with the general conduct of the campaign and the treatment of reformist candidates and their supporters. Given the openness of reformist campaigners, the considerable election success they enjoyed in 1999/2000, and the political and cultural liberalization taking part in Iran, the Tribunal finds that the applicant does not now or in the foreseeable future face a real chance of persecution by reason of his political opinion or for any other Convention reason. 6. The Tribunal is not satisfied on the evidence before it that the applicant was unable to avail himself of the protection of the State, even if the isolated attack against him was indeed instigated by a person associated with the intelligence service. There is no evidence of the State having sanctioned violent attacks against reformist candidates and their supporters during the period of the election campaigns in which the applicant had a role and the Tribunal does not accept that the applicant was targeted except as a result of a random and isolated act of violence. 7. Accepting that the applicant identified one of his attackers and engaged in counter-violence against him when the opportunity arose, and even accepting that his attacker might in the future seek to avenge the applicant's attack on him, such a scenario represents a pattern of criminal behaviour. Any renewed attack against the applicant in retaliation for a violent attack perpetrated by him is essentially of a criminal nature, and the Tribunal finds accordingly. 8. The Tribunal accepts that the applicant sometimes opened his shop on Fridays in defiance of the religious mores of the country. It also accepts that he was engaged in occasional conflict with the local imam who disagreed with his political and religious views, the length of his hair, and his lack of religious observance, including occasionally opening his shop on the holy day. While accepting that the applicant was pressured to close his shop on Fridays, called an atheist on occasions when he left his shop open on days of particular religious observance and had his premises temporarily closed, the Tribunal finds that such consequences fall short of a definition of persecution. It notes that the applicant's shop was re-opened after about a month. 9. While accepting that the applicant encountered occasional abuse and loss of business when his shop re-opened, and that the owner of the premises would have preferred that he move away altogether, the Tribunal notes that he was able to continue the operation of his business at the same location. Even accepting that the applicant was detained for a day by intelligence officers, apparently for questioning, after he was reported by the shopkeepers' association for keeping his shop open on some Fridays, the Tribunal concludes on the basis of all the evidence before it that the applicant faced only occasional discrimination and a limited penalty falling short of persecution. 10. Additionally, in weighing all the evidence before it the Tribunal concludes that the problems face (sic) by the applicant stem at least essentially from his occasionally defiant behaviour on religious days. Although he argued with the local imam over other matters the Tribunal is not satisfied that he faced any punishment except as a consequence of action taken by the organization governing shopkeepers due to his persistent refusal to obey laws governing trading on Fridays. He conceded that shopkeepers are required to close their premises on Fridays. The punishment he faced, of a temporary ban on trading, was imposed by the shopkeepers' association. Although the local imam might have been antagonistic towards him for several reasons he did not encounter consequences that could be described as persecutory until the intervention of the shopkeepers' association. Any prospect that he would now or in the foreseeable future encounter persecution for his expression of views different from those held by a conservative imam in the area he rented shop premises is rendered even much less of a possibility in light of reports of increasing liberalization in Iran (see, for example, Amin Saikal, Sydney Morning Herald, 19 January 1999). The fact that the applicant was penalised by the shopkeepers' association rather than by moral police or other State agents indicates that his punishment resulted essentially, if not wholly, from his frequent breach of laws that are generally applicable to traders; and the Tribunal finds accordingly, 11. While accepting that the applicant might have been occasionally upbraided in the past for his expression of political and religious views, and for wearing hair longer than is generally acceptable, the Tribunal finds in light of the passage of time, the absence of past consequences amounting to persecution and reports of increasing political liberalization that he does not now or in the foreseeable future face a real chance of persecution for any Convention reason. 12. Although the applicant claims to have gone into hiding due to fear that he was placed on a blacklist such a proposition is entirely inconsistent with the resumption of his right to open his shop after a brief penalty. 13. The Australian Department of Foreign Affairs and Trade (DFAT) in its country information report 327/99 of 19 March 1999 remarks in relation to exit procedures in Iran and with reference to its Country Profile (op. cit.) that: [Here the Tribunal set out further country information]. 14. Aforementioned information regarding exit procedures indicates the existence of an extensive and computerized blacklist at the airport where persons intending to depart the country must pass a number of different checks. The applicant said that his passport carried his photograph and was presented by him at the airport. Despite the existence of thorough checks he had no difficulty leaving Iran. Although the applicant claims to have left Iran on a false Iraqi passport he has not presented that passport for verification of his claim. The Tribunal is not satisfied on the evidence before it that the applicant left Iran on a false passport. 15. In view of the tight controls in Iran on exit and entry procedures; the range of checks at airports; the existence of a computerized blacklist; and the interest of the authorities in monitoring Iranian citizens, including in particular those who are regarded as political offenders, the Tribunal does not accept that the applicant would have been able to pass through all airport checks if he was wanted by the authorities. 16. The Tribunal is not satisfied that the applicant left Iran on a false passport, or that he had any need of such a passport in order to depart the country. In any event, if he were to have left on false documentation and his departure is not officially recorded, any penalty he faces arises from a breach of criminal or civil laws of general application and does not in the circumstances of this case disclose a Convention reason. 17. The Tribunal accepts that since the arrival of the applicant in Australia the Iranian authorities have been asked to provide details of his police clearance. It accepts that such an enquiry indicates to the Iranian authorities that the applicant has sought refugee status in Australia. In that regard it notes, however, comments in the DFAT Country Profile (op. cit.) to the effect that: "Deportations of Iranian asylum seekers to Iran now take place routinely from a number of Western countries. Of those countries which undertake routine deportations, none has seen evidence of reprisals or persecution directed at returnees... The Iranian government is continuing its policy of actively encouraging the return of Iranian expatriates, particularly the business and professional classes, seen as useful to the economic development of the country. There is no evidence that these expatriates have encountered reprisals on return to Iran... Returnees who have transgressed Iranian law in minorways (breaches of Islamic law on dress or alcohol, for instance) receive as little attention as the huge number of regular Iranian residents who have had dealings with the law on this sort of matter…" 18. While accepting that some members of the applicant's family might have been questioned since the request for details of his police clearance was received the Tribunal finds, particularly in light of aforementioned information concerning official attitudes to asylum seekers, that any such questioning does not indicate a real chance of persecution of the applicant for any Convention reason. 19. In considering all the circumstances of this case, including cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason."

grounds of the application 4 The applicant filed his application in person. The grounds stated in that document were as follows: "The primary decision-maker on my interview on 22 July 2000, I was requested to obtain a police clearance from the Iranian authorities, I had emphasized more than one time to the case officer and my solicitor that it is impossible simply because firstly I am a deserter after my political and religious problems which is under the convention, secondly I left my country (which is Iran) illegally, but the immigration delegate went further in urging my lawyer to assist me to get it from the Iranian authorities. Then McPherson and Kelly (sic) have notified the Iranian authorities of the fact that I am seeking asylum in Australia, now they are aware more than any time before about me. I have got all the papers concerning the correspondences, even the one sent by my lawyer to the Iranian authorities. Due to this error I am a genuine refugee sur place, I have emphasized that to the RRT member to take this into consideration this fact, but unfortunately, while I was expecting from the RRT to be fair in it's (sic) decision, the RRT member has confirmed the first decision on which I consider as an error of law, I am urging the Federal Court to take this into consideration and accept the ground of my appeal." 5 On 20 December 2000 I issued a referral certificate for legal assistance to the applicant under Order 80 sub-rule 4(3). 6 When the matter came on for hearing, on 10 April 2001, Mr J R Atkinson from the firm of Messrs Tottle Christensen (who had agreed to accept the referral) appeared for the applicant. Mr Atkinson sought leave to file a substituted application in which the sole ground of review was stated as being that: "The Tribunal erred in law in that it directed its mind to the question of whether the questioning of the Applicant's family by the Iranian authorities amounted to a real chance of persecution, whereas it should have directed its mind to the question of whether the arrest and detention of the Applicant's father by the Iranian authorities amounted to a real chance of persecution." 7 The respondent opposed the application for that leave. Mr Atkinson further indicated that he wished to have the opportunity to adduce evidence of what his client had told the Tribunal at the hearing before it. He sought, and was granted, an adjournment to enable him to listen to the tape-recording of the proceedings before the Tribunal. The applicant was also granted leave to file and serve within 21 days an amended or substituted application to include particulars of the ground or grounds expressed in s 476 of the Migration Act 1958 (Cth) ("the Act") upon which he relied and any further affidavit in support of his application. No such documents have been filed. 8 The matter came on for further hearing on 5 July 2001. On that occasion, Mr Atkinson renewed his application for leave to file a substituted application. In the course of discussion with him, I suggested that instead of seeking leave to file a completely substituted application, he might consider seeking leave to amend the original application by adding the ground of review set out at paragraph 6 above. Mr Atkinson was content to seek leave in those terms. The respondent again opposed the application for such leave. For reasons which I then delivered, I allowed the amendment. Counsel for the applicant then addressed me solely on the point of the alleged error of law.

the contentions 9 The applicant's contention was that the Tribunal had made an error of law or a jurisdictional error of the type referred to by the High Court of Australia in the recent decision of Minister for Immigration and Multicultural Affairs v Yusuf; Minister for Immigration and Multicultural Affairs v Israelian [2001] HCA 30. Counsel for the applicant pointed to the Tribunal's finding (at paragraph numbered 18 above) that some members of the applicant's family might have been questioned since the request for details of his police clearance was received. Counsel submitted that the Tribunal had erred in law in asking itself whether that questioning indicated a real chance of the applicant being persecuted for any Convention reason. It was contended on behalf of the applicant that the Tribunal had erred in not considering the applicant's claims that his father had been taken to the Information Ministry for questioning and that his sister had also been interrogated about his location and the absence of any record of his departure when it assessed whether there was a real chance of persecution of the applicant for any Convention reason.

my reasoning 10 In my view, no error of law or jurisdictional error on the Tribunal's part has been identified. 11 No complaint was made about the manner in which the Tribunal dealt with the applicant's claims other than those which arose out of the inadvertent disclosure to the Iranian authorities that the applicant has sought refugee status in Australia. Nor, in my opinion, was there any basis for such a complaint. From reading its reasoning, it can be seen that the Tribunal well understood the relevant law and correctly applied it to the facts as found by it. 12 Furthermore, in my opinion, the same can be said in relation to the sur place claims. At paragraph numbered 17 of its reasons (above) the Tribunal accepted that the request to the Iranian authorities for the police clearance had been made and that this indicated to those authorities that the applicant had sought refugee status in Australia. At page 7 of its reasons the Tribunal referred to the relevant part of the applicant's evidence concerning what had happened to his father and sister, in these terms: "He claims that in a recent telephone call home he learned that his father was taken to the information ministry for questioning and that a sister has also been interrogated about his location and why there is no record of his departure." 13 It is clear from that paragraph and from paragraph numbered 18 of its reasons above that the Tribunal gave consideration to that evidence. It also gave consideration to country information about the attitude of the Iranian Government to returned asylum seekers. The Tribunal can be seen to have considered whether there was a real chance of the applicant being persecuted upon return to Iran due to the fact that the Iranian Government was now aware that he had sought asylum in Australia. 14 In my opinion, the Tribunal was entitled to find (as it did) on the evidence before it that there was no real chance of persecution in those circumstances. 15 In short, I consider that the Tribunal correctly interpreted the law, applied it to the facts as found by it and, in doing so, asked itself the right question. It did not ignore any relevant material or act otherwise in a way that affected the exercise of the power conferred upon it. 16 In essence, the applicant's real complaint is that the Tribunal should have characterised what happened to his father and sister as amounting to arrest and detention rather than questioning. This was, in my view, a factual assessment for the Tribunal to make and in doing so it did not make any reviewable error.

Conclusion 17 For the foregoing reasons the application will be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr.

A/g Associate: Dated: 11 July 2001 Counsel for the Applicant: Mr J R Atkinson

Solicitors for the Applicant: Messrs Tottle Christensen

Counsel for the Respondent: Mr P R Macliver

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 5 July 2001

Date of Judgment: 11 July 2001