FEDERAL COURT OF AUSTRALIA

Mokhtaryan v Minister for Immigration and Multicultural Affairs

[2001] FCA 1057

IMMIGRATION – Refugees – objection to competency of Application – application not in English – objection to competency upheld

Migration Act 1958 (Cth) s 476

Federal Court Rules O 54B r 2

FERSHEED MOKHTARYAN v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO S 6 OF 2001

O’LOUGHLIN J

8 MAY 2001

ADELAIDE

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant is to pay the respondent’s costs, to be taxed in default of agreement.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

EX TEMPORE REASONS FOR JUDGMENT

1                     The applicant who is a citizen of Iran, arrived in Australia on 16 February 2000.  On 10 July of that year he lodged an application for a protection visa but on 14 September 2000 a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) refused his application.  Mr Mokhtaryan applied to the Refugee Review Tribunal (“the Tribunal”) to review the decision of the Minister’s delegate but his application was again unsuccessful.

2                     On 9 January 2001, a printed document, entitled application for an Order of Review, Form 56, was filed in this Court.  The name Fersheed Mokhtaryan was printed in English above the printed word “Applicants”.

3                     The acronym MIMA was printed in English above the word “Respondents”.  All printed sections on the document were printed in English.  Save for an address and some Arabic numerals, the rest of the document was handwritten in a language other than English. I was informed by the applicant at the hearing that it was the Farsi language.  Order 54B of the rules of this Court deal with applications under the Migration Act 1958 (Cth) (“the Act”).  Order 54B r 2 states that an application to review a judicially reviewable decision must be in accordance with Form 56.  Form 56 is set out in the Schedule to the Rules of Court.  Form 56 is expressed in the English language.

4                     Rule 2 also states that such an application must indicate the date that the applicant, Mr Mokhtaryan, was notified of the Tribunal’s decision.  I do not know whether that requirement has been satisfied from reading the application because I cannot interpret the Farsi language.  The Minister filed a notice of objection to competency on the ground that the document that I have just described as an application cannot be regarded as an application for judicial review under the Act, because it had failed to comply with the Rules of Court.  I agree, and I would add that this document should not have been received for the fundamental reason that it was not in the English language.

5                     It is true that the Rules of Court do not stipulate that documents are to be in the English language, but I do not regard that as an omission of any consequence.  The business of this Court is conducted in English.  It would create an impossible strain if parties to litigation were entitled to use a variety of languages of their own choice.  I fully appreciate the hardship that this imposes on a person such as Mr Mokhtaryan, who is a stranger in a strange land.  But the problem is substantially of his own making.

6                     Mr Mokhtaryan arrived in Australia through his own efforts.  He sought out Australia.  If, as he says, he wishes to make his home here, the primary responsibility was on him to make prior arrangements so that he would be able to ensure that his interests were fully protected when he arrived here.  Sometimes the exigencies and urgency of the situation might make that impossible.  That is not the case here.  He left Iran on 21 June 1999 for Syria.  To do this he was able to arrange a false passport.  He had the ability to arrange a second false passport to get to Turkey, and from there he had the resources to arrange for his illegal entry to Australia eight months after leaving his home country.  This was no rushed trip caused through matters of urgency.

7                     At my request, the Minister supplied a translation of Mr Mokhtaryan’s application to this Court.  I have taken the opportunity to study that translation, and I am compelled to say that it fails to identify any of the seven grounds that are contained in s 476 of the Migration Act that would allow this court to interfere with the decision of the Tribunal.  The information in Mr Mokhtaryan’s application is no more than a summary of the information that was before the tribunal.  At best the application could only be described as an attempt to have this court review his application on the facts as he has presented them.  However, the court cannot do this.  The role of the court is limited to examining the reasons of the Tribunal to see whether there was some reviewable error in its reasons.  I have read the Tribunal’s reasons.  I cannot find any fault in them.

8                     Mr Mokhtaryan wrote to the Court on 24 April 2001.  A translation of that letter has been made.  He claimed that he was reluctant to tell his full story about his involvement with the Mojahedin when first interviewed by the authorities for fears of his safety.  However, I must review the Tribunal’s decision on the material that was before the Tribunal.  In any event I am satisfied that the Tribunal was correct in the way in which it treated Mr Mokhtaryan’s evidence about his involvement with the Mojahedin.

9                     Mr Mokhtaryan also complained that when he was initially interviewed he had been supplied with an Afghani and not a Farsi interpreter.  He claimed that there were material differences in the two dialects but he has not, in my opinion, pointed to any section in any of the records of the interview where a misinterpretation of importance has been identified.  Mr Mokhtaryan has had, in my opinion, a reasonable opportunity to plead his case in Australia.  Save for that first interview, he has today accepted that fact.  When he appeared before the Tribunal he was assisted by an adviser.  His written material to the Court has all been translated and today he has had assistance of an interpreter in this hearing before me.  I recognise him as a person who wishes to live in Australia but his wish is not sufficient.  Entry to Australia is limited, and his attempt to gain entry by claiming refugee status has been unsuccessful.

10                  Before the Tribunal he offered two reasons why he should be given refugee status.  The first reason was because his father had been an officer in the secret police during the period of the Shah’s rule.  But as the Tribunal pointed out, Mr Mokhtaryan had never been detained by the present authorities because of his father’s background.  As a result the Tribunal was not prepared to accept that Mr Mokhtaryan was at any risk because of his father’s background.  His main claim was his involvement with the Mojahedin.  Here he suffered from his failure to inform the authorities at the first interview about that involvement.  He endeavoured to explain to the Tribunal why he had not made that statement at the first interview but the Tribunal declined to accept his explanation.  It was within the rights of the Tribunal to come to that decision.  There is nothing in the Tribunal’s decision which would justify me interfering.

11                  In any event the Tribunal doubted that he was involved with the Mojahedin.  Again the Tribunal was well within its rights to come to that decision.  The Mojahedin has a history of violence but Mr Mokhtaryan claimed before the Tribunal that he did not participate in violence.  This caused the Tribunal to doubt the truth of Mr Mokhtaryan’s statement.  I cannot say the Tribunal was wrong in coming to that decision.  I must therefore dismiss his application.  There will be a further order that Mr Mokhtaryan is to pay the costs of the Minister with respect to this application and those costs are to be taxed by the Court unless the parties can come to some agreement as to their amount.

Associate:

Dated:              8 May 2001