FEDERAL COURT OF AUSTRALIA

Miandoab v Minister for Immigration & Multicultural Affairs [2001]

FCA 1108

ALI REZA VARGHAN MIANDOAB v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 96 OF 2001

HELY J

6 AUGUST 2001

PERTH

THE COURT ORDERS THAT:

1.         The application be dismissed with costs.

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 under Part 8 of the Migration Act 1958 (Cth) (“the Act”) seeking review of a decision made by RRT on 15 March 2001.  The decision affirmed the decision of the Minister’s delegate not to grant a protection visa to the applicant.

2                     The applicant is a national of Iran.  He claims to have left Iran legally on 3 September 2000, using a passport which had been issued to him years earlier.  He travelled via Thailand and Indonesia, allegedly with the assistance of a “people smuggler” and arrived in Australia on 8 October 2000.  He was without travel documentation, and was detained by the Department of Immigration & Multicultural Affairs (“DIMA”) at Port Hedland, where he has remained.

3                     The applicant claims that he has a well-founded fear of persecution in Iran by reason of his political opinion.  That fear is based upon past occurrences which he recounted to the Refugee Review Tribunal (“RRT”).  However, RRT concluded that the applicant was an unreliable witness, and did not accept his claims.  RRT said:

“On the evidence before it the Tribunal concludes that the applicant is an unreliable witness in the present matter.  It is not satisfied that he faces a real chance of Convention related persecution in Iran.  He is not a refugee.”

4                     In a statutory declaration made on 24 October 2000 in association with his claim for a protection visa, the applicant claimed that he took part in a university demonstration against the government in June 1999.  He witnessed officials mistreating demonstrators and was shot at by a Basiji (a religious military group) apparently with blank cartridges.  This incident was not referred to in the applicant’s original interview of 17 October 2000 (RD 31 and 32) when he was asked to state why he left Iran and his reasons for not wishing to return.

5                     RRT noted that the applicant was not a student at the time and that the country information available to it indicated that university demonstrations had taken place on campus in July1999, rather than in June of that year.  RRT’s conclusion in relation to this aspect of the applicant’s claim was as follows:

“The Tribunal dismisses the applicant’s account of involvement in the 1999 student demonstrations and of the crack-down he supposedly witnessed to be a fabrication, damaged by erroneous detail.  In any event, the length of time he enjoyed without attracting investigation by the authorities indicates that they are not interested in him over this matter.”

6                     The applicant also relied upon events which occurred in the year 2000 as substantiating his claim to refugee status.  In his original interview, he said that at the end of June 2000 he distributed anti-government papers at the request of a person with whom he became friends.  The friend was active in a political party but “I don’t know which one”.  On 2 August 2000 the applicant was arrested by “two men at gunpoint”.  He assumed the men were security officers and he was placed in solitary confinement.  He was tortured by persons who claimed to know of his political activities, and who told him that he had been denounced by his friend, who was also under arrest.  Ultimately the applicant was released when his father, who had also been arrested, put up the title deeds to “his house” in order to secure the son’s release.

7                     A somewhat different version of these events was given in the statutory declaration of 24 October and at the hearing.  The friend was identified as “Reza”.  Reza asked him to join his group which was opposed to the government.  The applicant said that he would, even though Reza declined to identify the group, which the applicant assumed to be the Mujahadeen.  On 3 August (not 2 August) three men (not two) led him at gunpoint to their car and blindfolded him.  He said quite categorically, as distinct from assuming, that they were “from Etela’at” (the Ministry of Information).  There were also discrepancies between the different accounts of his subsequent detention and as to the date on which he was ultimately released.  He said that his father lodged the deeds to the shop (which was not at the address where the family lived) in order to secure the son’s release, rather than the deeds to his home as previously.

8                     RRT considered it to be implausible that “Etela’at” officers or other officials in Iran’s security forces would accuse the applicant of being a member of the Mujahadeen and let him go free as few as two days later.  Treatment of people accused of membership of the Mujahadeen in RRT’s view, is much more harsh than described by the applicant.  The applicant claimed to be on a “blacklist” when he left Iran, yet the fact that he was travelling on a passport which correctly identified him indicated that he was not of interest to Iran’s security operations.

9                     On the independent evidence RRT did not accept the applicant’s claim that he was on a “blacklist”.  Nor did it accept his claim that a month or so before his departure that he was detained by reason of his membership of an anti-government group or the Mujahadeen.  RRT thought the applicant’s story as to his involvement with Reza and his political group was fanciful.

10                  RRT said:

“The applicant’s account of being sent to Bandar Anzali to hide and of just happening to find a ‘people smuggler’ there, who had him out of Iran within a month, is one more element of serendipity in this story, but more than one too many to attract credulity.”

11                  Thus the applicant’s claim failed because RRT did not believe his claims, and there was no other foundation for a claim that the applicant is a refugee.

The grounds of review

12                  The application specifies as the grounds on which review is sought:

“1.       There are many misunderstandings about my case story made by RRT member that are the base of his decision.

2.         My RRT member has made many mistakes about the dates related to my case story.”

Neither of those grounds establishes any reviewable error of the type referred to in s 476 of the Act.

Extra judicial detention

13                  Amended grounds of review were filed on 3 August 2001.  The first of the amended grounds is that RRT erred in law in failing to find that the Iranian government sanctioned extra judicial detention and torture.

14                  This ground proceeds on the premise that RRT accepted that the applicant had been detained and tortured by the Iranian Security Forces, but found that this mistreatment lacked the requisite official quality so as to amount to persecution, as the security forces were acting for their own unlawful gain.

15                  RRT did not make either of these findings.  At 164 RRT said:

“The cumulative significance of these variations in his evidence prevents the Tribunal from accepting that he was detained in the circumstances claimed, and therefore it cannot accept that he was released in the manner or on the conditions he claims.”

RRT did not accept that the applicant had been detained and tortured as he alleged.  It did not accept that he was released in the manner or in the conditions he claims.  That amounts, in my view, to a non-acceptance by the Tribunal of the applicant’s story as to the posting of bail.  Nowhere did RRT find that any detention of persons by the security forces lacked the requisite official character.

16                  This ground is based upon a misunderstanding of RRT’s reasons and is not made out.

Blacklist

17                  The second of the amended grounds is that RRT erred in law in failing to find whether the “blacklist” was or was not a sufficiently reliable indicator of those individuals who had a “well-founded fear of persecution” by the Iranian government.

18                  This ground attributes to RRT a finding that a person does not have a well-founded fear of persecution unless a person’s name is on a blacklist maintained by the Iranian government.  RRT made no such finding.  It was the applicant’s case that he was on a blacklist and for that reason had a well-founded fear.  RRT rejected that claim.  Country information suggested that the fact that a person was not on a blacklist was a reliable indicator that he was not of adverse interest.  It did not go beyond that.  At the top of RD 165 the Tribunal considered the possibility that the applicant might have been a suspected political dissident whose name for some reason did not make the blacklist.  But as a matter of fact, having considered that proposition, it rejected it.

19                  In my view, the circumstances in which the applicant was able to depart from Iran freely were simply one of a number of reasons which operated in combination to cause the Tribunal not to be satisfied as to his claims.  In my view, neither of the amended grounds on which review is sought has been made out, and the application should be dismissed with costs.

Associate:

Dated:              15 August 2001