FEDERAL COURT OF AUSTRALIA

Salehi v Minister for Immigration & Multicultural Affairs [2001] FCA 310

Migration Act 1958 (Cth) s 476, 476(1)(e), 476(1)(g), 476(4)

RAHMAN SALEHI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 178 of 2000

R D NICHOLSON J

26 MARCH 2001

PERTH

THE COURT ORDERS THAT:

1.                  The application for review 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.

REASONS FOR JUDGMENT

1                     This is an application brought pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”) for review of a decision of a Refugee Review Tribunal (“the Tribunal”) made on 28 September 2000.  The decision affirmed the decision of a delegate of the respondent not to grant to the applicant a protection visa (class XA). 

Relevant law

2                     Under s 36(2) of theAct a non- citizen in Australia is eligible for a protection visa if that person is someone: “… to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”  The Refugees Convention is the Convention Relating to the Status of Refugees 1951 and the Refugees Protocol is the Protocol Relating to the Status of Refugees 1967.  The expression “Convention” will be used to mean the Convention as amended by the Protocol.

3                     Article 1a(2) of the Convention defines a “refugee” to be any person who:

“…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”.

Reasons of the Tribunal

4                     The claim which the applicant made was that he had a well-founded fear of harm for reason of his political opinion as he had come to the adverse attention of Iranian authorities because of his monarchist views and animosity with a Mr Hussain and because he was involved in student demonstrations in July 1999.  He claimed to fear that he would have a real chance of persecution if he returns to Iran because of his interest to the security forces because of his participation in those student demonstrations.

5                     The Tribunal was satisfied that the applicant is an Iranian from Tehran.  However, it was not satisfied that he was harassed and persecuted because of his relationship with Mr Hussain and for being a monarchist, or that he participated in and fled from violent student demonstrations on 12 and 13 July 1999 in Tehran and was then forced to go in to hiding or that he was forced to leave Iran illegally.  It found his evidence in relation to those matters unconvincing, unsatisfactory and lacking veracity. 

6                     In relation to the alleged previous adverse interest of the authorities, the applicant firstly claimed that Mr Hussain, a neighbour of his family who was a Pasdaran or revolutionary guard with a father who was clergyman or mullah, had caused the security forces (Basij) to take an adverse interest in him because of the refusal by his father for permission for Mr Hussain to marry the applicant’s sister.  The Tribunal accepted there may have been a marriage proposal to the applicant’s family but did not accept that the consequences of that were to cause the adverse security interest of the authorities.  It was not satisfied the applicant had been harassed and persecuted because Mr Hussain blamed him for the rejection of the marriage. 

7                     The applicant also claimed that Mr Hussain had occasioned the adverse interest because he had imputed monarchist political views to the applicant as a consequence of his father having been seen by Mr Hussain to be in possession of a picture of the former Shah.  The Tribunal was not satisfied that the applicant had been harassed and persecuted because of such imputed views.  It found it implausible and unrealistic that Mr Hussain should blame the applicant for the rejection of his marriage proposal and particularly target him for harassment and persecution to the exclusion of other members of the family and the applicant’s father as the decision-maker.  Furthermore, it considered that if anyone was to be imputed with monarchist views it would be the applicant’s father and not the applicant.  At no time had the applicant indicated any involvement with monarchist groups or the holding of monarchist views or engagement in monarchist activities.

8                     Furthermore, the Tribunal found the applicant was unable to identify the organisation to which Mr Hussain belonged having variously described him as a member of the Pasdaran, the Basij, the revolutionary guards and the Komiteh. 

9                     Accordingly, the Tribunal was not satisfied the applicant was targeted by Mr Hussain nor that the applicant was harassed, picked up, questioned or harmed by the Iranian authorities at his instigation.  Consequently, it found that the applicant did not have a well-founded fear of persecution for reasons of an adverse relationship with Mr Hussain and the imputed political opinion of being a monarchist. 

10                  As to the student demonstrations of July 1999, the Tribunal was not satisfied that the applicant had participated in those on 12 and 13 July 1999 and that he was there identified by Mr Hussain and, as a consequence, that he had fled Tehran and eventually Iran.  Its conclusions concerning the implausibility of his evidence were based on evident confusion as to dates, the timing of the claim in relation to the hearing and the unsatisfactory character of his evidence about the demonstrations viewed against country information of what occurred on those occasions.  It found that the applicant had fabricated this evidence to enhance his claims of persecution.  Accordingly, it was satisfied he did not have a well-founded fear of persecution by reason of political opinion because of his participation in the student demonstrations in July 1999. 

11                  The Tribunal then turned to consider the applicant’s departure from Iran.  It was not satisfied that he had to flee because he was wanted by the authorities or that he left Iran illegally.  It found it was probable that the applicant departed Iran legally using his own Iranian passport, which was disposed of prior to his detention in Australia.  The Tribunal then continued:

“118.   I accept that, if the applicant were returned to Iran from Australia, the fact of his return to Iran without his Iranian passport may give rise to some questioning by the Iranian authorities.  However, I am not satisfied that this gives rise to a well founded fear of being persecuted within the meaning of the Convention.  I have taken note of independent evidence at paragraph 90, which I accept, that Iranian law imposes a fine or prison sentence of up to 12 months for illegal departure, but that the most likely penalty for an Iranian who has left Iran illegally is a fine.

 119.    I am satisfied that, whether the applicant is questioned, fined or imprisoned for departing illegally, the treatment to which he might be subjected upon return to Iran as the result of his illegal departure does not amount to persecution within the meaning of the Convention.  This is because, without more, the punishment for illegal departure is an ordinary enforcement of a state’s migration law and does not of itself make a person a refugee (Wu Guo Xiong V MIMA (1997) 45 ALD 127).  I am satisfied, for the reasons above, that the applicant would not suffer punishment for reasons of actual or imputed political opinion but would arise from ordinary enforcement of a migration law.”

12                  Next, the Tribunal examined the position in relation to the effect of the making by the applicant of his application for refugee status.  It said:

“120.   I have found no evidence that failed refugee claimants, persons who have illegally exited Iran, or deportees face any significant problems upon return to Iran, and applying for asylum abroad is not an offence in Iran.  I am satisfied that the applicant does not face a real change of persecution by reason of his application for a protection visa in Australia if he returns to Iran.”

13                  The Tribunal then concluded it was not satisfied that the applicant had a real chance of persecution in the reasonably foreseeable future if he was to return to Iran because of his political opinion or because he did not have a passport or because of his application for refugee status in Australia.  It therefore affirmed the decision not to grant the protection visa. 

Circumstances of departure from Iran

14                  The first ground upon which reliance is placed for the applicant seeks support from s 476(1)(g) of the Act, which provides that it lies within the jurisdiction of the Court for review to be made of a Tribunal decision on the ground that there was no evidence or other material to justify the making of the decision.  The decision for which it is said there was no evidence was that which was dealt with in pars 118 and 119 of the reasons of the Tribunal, quoted above.  That decision was to the effect that on the basis the applicant had departed Iran illegally, he would not suffer a real chance of persecution upon return to Iran.  It is submitted that in the light of the Tribunal’s conclusion that it was probable the applicant had departed Iran legally, there was no evidence to justify the making of this decision. 

15                  Section 476(1)(g) is to be understood in the context of s 476(4) of the Act and relevantly par (b) of that subsection.  The effect of that is to provide that the ground is not to be taken to have been made out unless the person who made the decision based the decision on the existence of a particular fact and that fact did not exist.  The particular fact which it is submitted for the applicant did not exist here is that, in the light of the Tribunal’s finding that it was probable the applicant departed Iran legally, there was no evidence that he had departed Iran illegally.

16                  Paragraphs 118 and 119 are to be read in their context.  They appear to me as making clear that the Tribunal, although having concluded it was probable that the applicant departed Iran legally, nevertheless went on to consider what would be the position if, because the applicant did not have an Iranian passport on return, he was thought to have departed illegally.  That path chosen by the Tribunal was in favour of the applicant because it would be the worst position he could face; that is worse than the Tribunal proceeding on the basis of its finding of probability that he would be regarded as having departed Iran legally.  It found that even if that worse case scenario was considered, it could not be resolved in favour of the applicant having a well-founded fear of persecution. 

17                  If the no evidence ground was applied to that finding there would be a futility in setting aside the Tribunal’s reasoning on that ground.  The futility would arise because if the Tribunal was precluded from considering the possibility that the applicant would be regarded as having departed illegally, the Tribunal would only be left with the option of considering that the applicant would be regarded as having departed Iran legally.  In that event there would be even less probability of any finding in his favour of a relevant well-founded fear. 

18                  In my view pars 118 and 119 are to be understood in the way in which I have set out.  They involve the Tribunal considering the question “what if I am wrong” in relation to the probability that the applicant departed Iran legally.  This also involved it considering, in the applicant’s favour, the possibility that the Iranian authorities may consider he departed illegally even though the Tribunal had found the probability otherwise.  In those circumstances, even if the no evidence ground can be applied to the decision, no case is made out for review on that ground. 

Effect of application for refugee status

19                  The next ground on which it is said that the Court should review the decision of the Tribunal relies on s 476(1)(e) of the Act.  It alleges that the Tribunal incorrectly applied the law to the facts when it did not consider whether the application for refugee status by the claimant involving the making of his particular claims could result in him having a real chance of persecution because of those claims.  The claims referred to are that he had problems with this neighbour, Mr Hussain; that he was pro-monarchist; that he participated in university student demonstrations; and additionally, that he had political beliefs in opposition to the regime.  It is submitted that par 120 of the reasons of the Tribunal does not address this issue when it dealt with the matter.

20                  I am unable to accept this latter submission.  The written submissions filed with the Tribunal on behalf of the applicant raised the issue for the consideration of the Tribunal.  When the Tribunal wrote par 120 it was addressing the issue which had been made material to it.  The fact that it did not specifically address the nature and content of the grounds again in its reasons (having done so earlier in its reasons) in this particular paragraph is of no materiality because it found in that paragraph no evidence that failed refugee claimants faced a real chance of persecution.  The Tribunal applied its mind to the issue and reached a conclusion in the light of the evidence available to it.  In any event the submission invites the Court to impermissibly reweigh the merits considered by the Tribunal.  No error of law is made out. 

Conclusion

21                  For these reasons I consider that the application should be dismissed.

Associate:

Dated:              26 March 2001