FEDERAL COURT OF AUSTRALIA

Nejad v Minister for Immigration & Multicultural Affairs [1999] FCA 1326

Migration Act 1958 ss 425, 366C

Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321 Cited

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 Cited

Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 cited

Emiantor v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 635 Refd to

Careem v Minister for Immigration and Multicultural Affairs [1999] FCA 378 Refd to

AKBAR ALI NEJAD v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 452 of 1999

KIEFEL J

SYDNEY

23 SEPTEMBER 1999

ON REVIEW FROM A DECISION OF THE REFUGEE REVIEW TRIBUNAL

THE COURT ORDERS THAT:

1.         The application is 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.

ON REVIEW FROM A DECISION OF THE REFUGEE REVIEW TRIBUNAL

REASONS FOR JUDGMENT

1                     The applicant is a citizen of Iran and arrived in Australia in November 1998.  On 9 December 1998 a delegate of the Minister for Immigration and Multicultural Affairs refused his application for a protection visa.  The Refugee Review Tribunal affirmed that decision on 22 April 1999. 

2                     The basis for the applicant’s claim for refugee status was that his pro-monarchist views, and support for a political group which expounded those views, had come to the attention of the Hezbollah, which was connected with the Intelligence Ministry;  that he had been arrested and detained by them on one occasion in the past and now feared for his safety should he be required to return.  The importance that the authorities placed upon his activities or expressed opinions could be seen by the fact of that detention, which took place over a period of forty-eight hours in 1996, and by the fact that he had lost his job on two occasions on that account.  The first of these events occurred in 1986.  In November 1998, a friend of his advised that “they” had been monitoring his telephone and would probably kill him.  He then made arrangements to travel to Australia.  That involved him travelling, in the first place, to Turkey and then back to Iran with the agent who arranged his travel documents.  From there he travelled from Iran to Australia.  The applicant said that he did not feel the government of Iran could protect him.

3                     The applicant was interviewed at Sydney airport on arrival without a passport, although he said he had one when he left Iran.  This interview was referred to in submissions on this application.  Thereafter, his representative lodged submissions and statutory declarations by the applicant.  Information available to the Tribunal was put to the applicant for comment.  The independent information was to the effect that a person such as the applicant, who had pro-monarchist sympathies but did not express them publicly and did not belong to a political organisation was not at risk.  The applicant was offered a further opportunity to make submissions as to this.

4                     The Tribunal found there to be inconsistencies in the applicant’s evidence and additions to earlier accounts.  Further it considered, on the information available to it, that his account was implausible when judged from a number of perspectives. 

5                     The first set of inconsistencies arose as between the interview at Sydney airport on arrival and later accounts.  They concern how he had made his pro-monarchist views known and to whom;  the time of his arrest;  and whether he was asked questions when he was detained.  The applicant did not claim that he was mistreated when detained until he gave his second statutory declaration.  In his first declaration, however, he had referred to hearing someone else being mistreated but made no reference to the treatment being personally experienced.  He had said earlier that he did not know who detained him but then told the Tribunal that it was the Hezbollah, a group connected with the Intelligence Ministry.

6                     The applicant’s claim was rejected as implausible principally because of the low level of political activity he was likely to have been engaged in.  The only apparent activity he had undertaken was speaking to some work colleagues.  He had never been a member of a political organisation and the Tribunal did not accept as likely the existence of the organisation he was said to support nor its ability to distribute pamphlets, which he said he read.  The level of his political activity was such that it would not expose him to the harm which he said he feared.  That he was not viewed by the authorities in such a way as might expose him to harm was confirmed, in the Tribunal’s view, by the fact that he was not subjected to interrogation or other harm over a period of years;  that he was able to obtain a passport in 1991 and later, to leave Iran and return and then leave again to travel to Australia.  This strongly indicated lack of a political profile on his part. 

7                     The Tribunal did not consider the applicant’s action, in returning to Iran from Turkey, to be that of a man in fear of his life.  The Tribunal appears to have rejected the possibility of that fear as being genuinely held.  It did not accept his account generally as credible;  did not accept his account of the difficulties associated with his employment for the reasons he attributed to them;  did not accept that he received warnings as to the further expression of his views;  did not accept his claims that he was detained;  and did not accept that he had been warned his life was in jeopardy.  The Tribunal concluded that if the applicant continued to express pro-monarchist political views he would not have particular difficulties either by reason of discrimination in employment or otherwise.  He had not had them in the past.  It followed that the applicant was not a person to whom Australia owed protection obligations.

8                     The Tribunal was placed in a position where the details of the applicant’s life in Iran and the real impetus for leaving had to be pieced together from inconsistent accounts.  The statements given at different points varied in their detail.  Later statements were considered to contain embellishments. The Tribunal clearly considered the applicant to be overstating the seriousness of the threatened political persecution to maximise his chances of remaining in Australia.  It can be observed from the reasons that, in these circumstances, the Tribunal preferred to consider the threat of persecution from the perspective of expert reports.  These indicated that the risk of political persecution for pro-monarchist supporters in Iran did have some foundation;  pro-monarchist opinion was repressed in Iran by the banning of such groups and by the punishment of political dissidents.  The risk was expressed by experts to be offset by a liberalisation of official attitudes towards pro-monarchists, the actual rarity of organised pro-monarchist groups within Iran, and official condemnation of recent ill treatment of dissidents by the military.  Further, the Tribunal approached the question, whether there was a well founded fear of persecution for political beliefs, by using past experience as indicative of the future.  In that respect the applicant’s credibility, assessed by reference to his varying accounts, assumed importance.

The Application

9                     The applicant did not list the grounds for his application for review.  No point was taken as to this deficiency.  Necessarily, the applicant’s case had to be gleaned from his oral submissions to the Court at the hearing.

10                  The principal matters that the applicant sought to address, and explain, were the Tribunal’s reference to the inconsistencies between what he said when first interviewed and later statements;  and the finding that he had embellished his statements as the matter progressed.  A difficulty the applicant faces, at a factual level, is that he raises these matters for the first time.  No complaint about the quality of the telephone interpreter provided for the purpose of the interview at the airport was made by the applicant or his legal representative who appeared for him at the Tribunal hearing.  The applicant explained that no transcript of the first interview had been made available to him.  However, the inconsistencies were squarely raised by the Tribunal and he was asked to comment upon them.  The applicant’s explanation for the additional information being progressively provided was that his lawyers advised him initially only to give an outline and highlight certain points, on the basis that he could expand on them later.  The Tribunal’s reasons record his then explanation that he assumed that was the process to be undertaken.  In these circumstances, it is not necessary to consider whether provisions such as s 425 and s 366C of the Migration Act 1958 provide rights to an applicant or obligations upon a Tribunal in connexion with the interpretation of evidence and of matters put to the applicant, such as might supplement the exclusion of denial of procedural fairness as a ground of review.  No basis for such consideration is given, there being no apparent and credible failure in the process.

11                  From that point the assessment of the applicant’s credibility was one for the Tribunal, as was the determination of all facts necessary to reach its ultimate conclusion:  Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321, 341.  Findings of fact made by the Tribunal cannot be reviewed by this Court on the basis that other evidence, and in particular that of the applicant, should have been accepted or given greater weight.  The fact that another conclusion may have been reached on the same facts does not establish that the Tribunal’s process was legally erroneous:  Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577, 589.  Further, there is no requirement that a Tribunal must accept, as its starting point, the veracity of the applicant’s statement:  Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126.  The requirement is that there be some evidence available upon which the finding may be based.  Here, that is satisfied.  Whether or not the finding must also be based in logic as to which see Emiantor v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 635;  Careem v Minister for Immigration and Multicultural Affairs [1999] FCA 378, but see also Australian Broadcasting Tribunal v Bond, 356, is not necessary to be decided in this case.

12                  The other matters raised by the applicant amounted to challenges to the Tribunal’s findings of fact.  He reiterated that he was a supporter of a pro-monarchist group;  that he would be regarded as an activist; that the Hezbollah must have found out about his stance, although he did not know how;  that, as a result, he lost two jobs.  He said that he did not know why the agent took him to Turkey and back to Iran, and could only assume that he had thought he might be able to make the necessary arrangements in Turkey.  He said that he was then able to use his passport because he was not considered to be “against the government”.  He said that he was unable to understand how the Tribunal reasoned that his position differed from that of the person he had referred to in evidence, who held similar sympathies and was killed on account of them.  It was, however, open to the Tribunal to accept or reject the applicant’s evidence and to prefer the independent evidence.  There was evidence available to the Tribunal to permit the findings made.  Aspects of the applicant’s evidence which were inconsistent or required explanation were drawn to his attention, as were aspects of the independent evidence which tended to discount the reliability of his evidence.

13                  No error of law has been disclosed and the application must be dismissed with costs.

Associate:

Dated:              23 September 1999