Khomeiran v Minister for Immigration and Multicultural Affairs [2001] FCA 1374

FEDERAL COURT OF AUSTRALIA

Khomeiran v Minister for Immigration and Multicultural Affairs [2001] FCA 1374 PEJMAN AKBARI KHOMEIRAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W309 of 2001 FINN J PERTH 20 SEPTEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA

PERTH DISTRICT REGISTRY W309 OF 2001

BETWEEN: PEJMAN AKBARI KHOMEIRAN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: FINN J

DATE OF ORDER: 20 SEPTEMBER 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

PERTH DISTRICT REGISTRY W309 OF 2001

BETWEEN: PEJMAN AKBARI KHOMEIRAN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: FINN J

DATE: 20 SEPTEMBER 2001

PLACE: PERTH

EX TEMPORE REASONS FOR JUDGMENT 1 There are two matters before me today. The first is an application by Mr Khomeiran for a reference under Order 80 of the Federal Court Rules and a consequential adjournment of the case, and, secondly, the application for an order of review. Considering first the Order 80 reference application, it is the case that after a directions hearing on 10 August Mr Khomeiran wrote a letter addressed to the court seeking such a reference. Unfortunately the letter was misdirected. It was only when telephone contact was made with the Court on 11 and then later 14 September 2001 that the registry became aware that an application had been made. 2 Mr Khomeiran's friend was informed orally, and then Mr Khomeiran himself was informed by facsimile letter, that at today's hearing he could apply to me for an Order 80 reference but that he would have to be prepared to present his case in any event. The course I have taken is to hear both his Order 80 application, and with it a consequential adjournment application if a reference is given, and argument on the application itself. For reasons which will become apparent, the case is not one in which an Order 80 reference should be made, and in consequence no adjournment should be ordered. 3 Turning now to the application itself, the applicant, Pejman Akbari Khomeiran, is a citizen of Iran. He arrived in Australia without a visa on 26 February 2001. On 13 March 2001 he made an application for a protection visa under the Migration Act 1958 (the "Migration Act"). A delegate of the respondent Minister having refused that application, Mr Khomeiran applied to the Refugee Review Tribunal ("the Tribunal") for an order of review under Part 8 of the Migration Act. 4 A written submission by the applicant's migration agent was later filed with the Tribunal. On 6 July 2001 the Tribunal affirmed the delegate's decision not to grant a protection visa. The application for judicial review presently before the court was filed on 17 July 2001. The grounds of the application were stated to be that: The Tribunal treated me unfairly. They did not pay attention to an enormous bulk of evidence that I presented to the Tribunal. They treated me with suspicion and one‑sided views both when the case officer interviewed me and in the Tribunal. They did not accept or they accepted with suspicion the translated materials that are translated by NATTI accredited translators. The member in RRT did not seem to be familiar with situation here. 5 At the directions hearing to which I referred earlier, the court directed that Mr Khomeiran file and serve a written statement setting out the reasons why he considered the decision of the Tribunal to be wrong. The court has recently received a facsimile document sent in compliance with that direction. It is set out in Schedule 1. As I will later indicate it does no more than dispute fact findings and their merits or point to matters said not to have been considered by the Tribunal. Neither the application nor this document identify any ground of review explicitly that is mentioned in section 476(1) of the Migration Act.

The decision of the Tribunal 6 The principal claims made by Mr Khomeiran are as follows. (1) One of his brothers who had worked for the revolutionary guard would not return to work after a holiday and fled Iran to Australia. (2) Following this a second brother was detained and mistreated on several occasions before departing for South Korea. (3) The applicant was subsequently interrogated and asked about cooperating with his brothers. He was at the time in the army. (4) He was subsequently transferred, as a punishment, for emulating his brother's spying activities. He was then engaged by the revolutionary guard, mostly as a guard for a commander and deputy commander and as a cleaner. (5) He was often questioned by authorities at this time. (6) On completion of his military training he was not given a certificate to show that he had done so. In consequence he was unable to obtain employment. He was also obliged to undertake three additional months of military service. He attributed this to misdemeanours – such as getting up late, not shining shoes properly and not attending a mosque. (7) Mr Khomeiran left Iran on a false Iranian passport. (8) En route to Australia he obtained an Austrian passport which he destroyed before entering Australia. (9) Subsequent to his departure from Iran his father was arrested and detained until he handed over the deed to his house. 7 The applicant's brother gave evidence at the Tribunal. I would note in passing that in so far as that evidence related to the applicant it was found by the Tribunal to be at odds with Mr Khomeiran's own evidence. 8 The Tribunal characterised the essence of the applicant's claim of persecution as being that: "[H]e was forcibly transferred about a year after the commencement of his army service as a punishment for being a spy like his brothers, and frequently interrogated and mistreated on the basis of that perception of him." Finding 1: "On the most generous interpretation of the applicant's varied evidence during the course of his application for a protection visa the worst fate he encountered for a period of at least six months after the illegal departure [of his brother to Australia] was that he was frequently questioned. The applicant's retention of a privileged position with the army throughout that period, and for several months afterwards, leads the Tribunal to conclude that the applicant was not himself regarded as a threat by the authorities even if, as he claims, two brothers were regarded as spies and punished, or sought for punishment, accordingly." Finding 2 (relating to the applicant being a guard in the revolutionary guard unit): "While noting that conscripts do not require the religious or ideological fervour that apparently adheres in volunteers with the Revolutionary Guard, it defies credulity that someone believed to be actively opposed to the state, as a political dissident suspected of also being a spy, would be recruited into its ranks." Finding 3: "It [the Tribunal] does not accept that he was transferred to a Revolutionary Guard unit and regularly interrogated as a punishment for his perceived political opinion, his membership of a family group or for any other Convention reason. The Tribunal also finds it implausible that if the applicant were regarded as a spy he would not face serious criminal charges accordingly." Finding 4: "In weighing all the foregoing material that has been set out in the reasons, the Tribunal finds that the applicant has fabricated his claim that he was punished in the army and regarded as a spy or otherwise politically antagonistic to the ruling authorities." Finding 5: The Tribunal concluded if the applicant was made to serve an extra three months in the army this was not for a Convention reason. Finding 6: The Tribunal was not satisfied Mr Khomeiran was denied a military service completion card or that the issue of one was unduly delayed for a Convention reason. Country information provided indicated that military service completion cards were not issued until several months after the end of service. Finding 7: As Mr Khomeiran was able to find private sector employment, even if the military service card was deliberately withheld, he was not persecuted. Finding 8: His claim that he was subjected to interrogation and periods of detention until his departure from Iran was not accepted. Finding 9: The Tribunal thought it implausible, given the exit controls from Iran, that Mr Khomeiran would have been able to pass through airport checks if he was wanted by the authorities. Finding 10: It did not accept that his father was detained after his departure from Iran. Likewise it was not satisfied that he left Iran on a passport in a name other than his own. Finding 11: If the Iranian authorities were to learn of his application for refugee status, Mr Khomeiran would not face persecution in Iran as a consequence, were he to be returned to Iran. 9 Turning now to the application itself, understandably, as an unrepresented litigant, Mr Khomeiran has not been able to formulate his claim in a way that is directed to the requirements of the Migration Act. He has focused, in the facsimile document to which I have referred, on disputing or commenting on fact‑findings and their merits. 10 In his oral submissions today, apart from enlarging upon a matter contained in that document, he sought to raise some entirely new matters, as for example the precise period of military training. Equally, he sought to provide explanation of evidence that had been given, as for example in relation to this brother's evidence. And he sought to attribute new significance to mistaken fact‑findings, as for example the Tribunal's allegedly erroneous fact‑finding that Mr Khomeiran was a Sunni Moslem. I would comment about that last finding in passing, that even if it was a mistaken fact‑finding, it was in no way relevant, let alone material, to any matter in issue in this proceeding. There has been no claim made of persecution on grounds on religion. Mr Khomeiran has sought to characterise this mistake as a mistake of law. It is clearly a mistake of fact. 11 As to the matters referred to in the seven paragraphs of the facsimile document, all allege either erroneous fact findings or else question the merits of findings. I do not intend to deal with them individually. I merely indicate that I accept the submissions on them made by counsel for the respondent in his oral submissions. Little purpose would be served in treating them one by one. 12 At the outset of today's hearing I explained to Mr Khomeiran that this court can only set aside a decision of the Tribunal if a ground set out in section 476(1) of the Migration Act is established. Those grounds do not allow the court to interfere with the Tribunal's decision simply because the Tribunal has taken a particular view of the facts of his case with which this Court might disagree. As Kenny J commented in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 257: "A Tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis or because it adopts unsound or questionable reasoning." Importantly, this court cannot change a decision of the Tribunal even if it thinks the Tribunal was wrong on the facts: see Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426. Likewise, illogical reasoning will not provide a ground of review: see Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565. Furthermore, the Tribunal in its statement of reasons does not have to provide a line by line refutation of an applicant's case. 13 Returning now to the findings challenged by Mr Khomeiran, none as I have indicated are open to challenge on the mere ground that they were mistaken findings of fact or because their merits may be contestable. Likewise, in my view, none are open to challenge on the ground that there was no evidence to justify the decision: see section 476(1)(g). In light of the findings made there is no apparent error of law suggested such as might justify inquiry under section 476(1)(e). No relevant material appears to have been ignored; no wrong question appears to have been asked; no irrelevant material appears to have been relied upon: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at paras 82 to 83. 14 Accordingly, I am unable to say that the decision was not authorised by the Migration Act: see section 476(1)(c). I am unable to discern, furthermore, that any other of the grounds in section 476(1) could reasonably be invoked by Mr Khomeiran. It was up to the Tribunal to assess the applicant's credibility and to determine the merits of the application. In both matters it found adversely to him. This court does not have the jurisdiction to reconsider either of those matters, whether or not it agrees with the Tribunal's conclusions. Accordingly, as no section 476(1) ground can be or has been made out, the application itself must be dismissed. I certify that the preceding fourteen (14) numbered paragraphs together with the attached Schedule are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate: Dated: 27 September 2001 The applicant appeared in person

Counsel for the Respondent: Mr M Ritter

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 20 September 2001

Date of Judgment: 20 September 2001

SCHEDULE 1 1. My military service was shortened from 24 months to 21 months due to the change in laws, for those already participating in or anticipating military service. I have already handed in two cards, which shows that I have already completed my military service. However I do not understand why the court does not see my cards as legitimate documentation. 2. Because I was a professional soccer player I was not expected to do too much military training. This is a privilege for some people in Iran and is quite natural in Iran military protocol. 3. At Shiraz airport I was an ordinary soldier not the commander's bodyguard. 4. The judge in the court did not consider that I am Shiite Muslim not Sunni Muslim. 5. About my passport I would say that it was a normal passport that I could get out of the country with but with a different name. Apart from this I was also guaranteed that I could get out of country without any problem. 6. About my brother Kayone. I was leaving the country in a state of stress, I could not remember who I had seen in the last day. 7. Considering that my brother Kayone, who has been living in this country for three years and had the same problems as I am having, however his case was accepted in the first interview. Hence I am puzzled why the court didn't accept my case but admitted my brother had problems in Iran. FROM: PEGMAN AKBARY