FEDERAL COURT OF AUSTRALIA

Daryoush Karimi v Minister for Immigration & Multicultural Affairs

[2001] FCA 1210

Migration Act 1958 (Cth)

Amin v Minister for Immigration and Multicultural Affairs [2001] FCA 312 applied

DARYOUSH KARIMI v MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

S85 OF 2001

MANSFIELD J

ADELAIDE

29 AUGUST 2001

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay to the respondent costs of the application to be taxed.

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 to review a decision of the Refugee Review Tribunal (“the Tribunal”) given on 24 May 2001. The Tribunal affirmed a decision of a delegate of the respondent made on 14 March 2001 to refuse to grant to the applicant a Protection (Class XA) visa under the Migration Act 1958 (Cth) (“the Act”). The applicant had applied for that visa on 13 February 2001, shortly after his arrival in Australia.

2                     To qualify for the grant of the visa, the delegate of the respondent, and on review the Tribunal, had to be satisfied that the applicant was a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”), using those terms as defined in the Act. In practical terms, that meant that the delegate of the respondent, and on review the Tribunal, had to be satisfied that the applicant is a “refugee” as defined in Art 1A(2) of the Convention, namely a person who :

“... owing to 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 available himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

3                     The Tribunal appears to have accepted the applicant’s claims regarding his background. He is an Iranian National. He is single, and one of ten children. He is of Bakht-Yari ethnicity and a Shi’ite Muslim. He worked as an industrial electrician in Iran, although he was unemployed for the three years or so preceding his departure from Iran and his arrival in Australia on 1 January 2001. He claimed that, during that period, he had been in hiding.

4                     It was the applicant’s claims to have a well-founded fear of persecution about which the Tribunal had significant doubts. He claimed that his younger brother, in 1996, had travelled to Belgium with an Iranian sporting team prior to undertaking his military service. Because his younger brother was then liable to undertake compulsory military service, the applicant said that he had guaranteed the return of his younger brother by proffering a very significant financial bond to the authorities. In fact his brother failed to return and, he claimed, was granted refugee status in Belgium. Prior to his departure for Belgium, the applicant claimed that his younger brother had worked for the security force known as Sepah, an elite and separate military force in Iran. The applicant then claimed that, as a result of the defection of his younger brother in Belgium, the applicant himself was suspected of supporting an anti-government political organisation such as the Mujahideen, and was regularly questioned by Sepah about potential anti-government beliefs and activities. He claimed that he had been arrested and detailed six or seven times by the authorities because of those suspicions and had been exposed to threats if he did not confess his anti-government political activities. He also claimed that he had lost his job some years ago as a result of the suspicions about him by the authorities. Consequently, he went into hiding in Naft Safid where he had remained for some three and a half years until he had been able to arrange for a smuggler to assist him to escape from the country. He feared that, if he were to return to Iran, he would still be suspected of being a member of the Mujahideen or some similar anti-government political organisation and would be persecuted as a result.

5                     The Tribunal, after referring at some length to the applicant’s claims and the evidence he had given about them both to officers of the respondent and to the Tribunal, expressed strong doubts as to the plausibility of the claim that the failure of his brother to return from Belgium led to the applicant being imputed with an anti-government political opinion because he had acted as guarantor for his brother’s return. There were a number of reasons why the Tribunal expressed itself as finding difficulty in accepting that claim. It then said :

“It is possible that Mr Karimi is being truthful when he claims that he acted as guarantor for one of his brothers who had not performed his military service, and that his brother failed to return to Iran for some reason, but the probabilities are against that. On balance, I am not satisfied that these claims are true. On the other hand, I cannot reject the possibility that they are and I therefore turn to consider whether Mr Karimi faced a real chance of persecution, on the assumption that he acted in the way he claims.”

6                     Consequently, despite its apparent doubts about the reliability of the claims that the applicant’s brother had left Iran as a member of an Iranian sporting team and had failed to return, exposing the applicant to liability under the guarantee or bond which he had provided to the Iranian government, it appears that the Tribunal proceeded to assess his claims on the basis that, at least to that extent, they were reliable.

7                     It nevertheless did not accept the applicant’s claims that he left Iran because he faced a real chance of persecution for political beliefs imputed to him. The reasons for that conclusion were :

·                 the applicant had left Iran with a genuine Iranian passport in his own name, and on the information available to the Tribunal it would not have been possible for him to have done so if he were of adverse interest to the authorities, either because he was a substantial debtor to the government by reason of the guarantee that he had provided when his brother left Iran, or because he was suspected of being a Mujahideen sympathiser or activist the Tribunal noted that both of those matters were matters of particular inquiry in the checks carried out of persons leaving Iran with genuine Iranian passports;

·                 the Tribunal considered that it is highly unlikely that the failure of the applicant’s brother to return from abroad of itself could lead to suspicion that the applicant, or his brother, were Mujahideen supporters. It noted that independent country sources made it clear that Iranian authorities do not routinely suspect young people who go abroad of involvement with the Mujahideen or other opposition groups. It said :

“... There is nothing about Mr Karimi’s family that might lead to his brother being placed in a different category. Mr Karimi does not claim that he, or anyone else in the family, was ever suspected of anti-government activity before Ebrahim left for Belgium, and he does not claim that Ebrahim has since become involved in such activities. ...” (My emphasis)

It regarded it as highly implausible that the brother of the applicant was suspected by the Iranian security forces of anti-government political activity, and therefore highly implausible that the applicant himself might be suspected of such activity.

·                 the Tribunal also considered that, on the basis of the independent country information available to it, any suspicion of the applicant as harbouring anti-government political beliefs of any significance, or of engaging in anti-government activities, would have resulted in him having suffered consequences during the periods of his detention by the authorities, so that (accepting his claims to have been detained several times for periods of a few days each time) the relative mildness of his treatment and the absence of any charges was inconsistent with the treatment meted out to individuals suspected of supporting the Mujahideen or of other anti-government groups.

·                 the Tribunal regarded the descriptions of the applicant as to the length of time he had been in hiding and where he had been in hiding in the period of years up to his departure from Iran as being “so internally contradictory and vague” that it could not be satisfied that he was in fact in hiding at all during that period.

Consequently, the Tribunal said that it had no doubt that the applicant had been untruthful when he claimed that he was suspected of supporting the Mujahideen before his departure from Iran, and that he was wanted by the authorities for a reason associated with a political opinion imputed to him. It did not accept that he left Iran for the reasons he claimed, and was not satisfied that he had a well-founded fear of Convention-based persecution at the time he left Iran.

8                     The applicant appeared in person at the hearing of the application for review of the Tribunal’s decision. His application to the Court did not identify any ground of review referrable to s 476(1) of the Act, that is referrable to any ground of review available to the Court to review the Tribunal’s decision. Rather, that document indicated generally that the applicant wished to re-argue before the Court the merits of his application as determined by the Tribunal. That is not a course of action available to the applicant. In his oral submissions to the Court, again, the applicant adopted the same course. Given his background, and his lack of legal knowledge and his inability to speak English, it is not surprising that he adopted that course. In such cases, it is appropriate, in my view, for the Court to examine the reasons for decision of the Tribunal in order to ascertain for itself whether any reviewable error has been made: see per Stone J in Amin v Minister for Immigration and Multicultural Affairs [2001] FCA 312 at par 13. I have adopted that course, but in particular having regard to contentions which the applicant addressed to the Court.

9                     I have discerned only one matter which, arguably, might give rise to a ground of review available under s 476 of the Act. In other respects, the matters raised by the applicant really do no more than attempt to re-argue findings of fact which the Tribunal has made. For example, although the applicant asserted that the Tribunal erred in placing weight upon his capacity to leave Iran with a genuine Iranian passport in his name because (he said) it had had regard to the “official” information when other information could have contradicted that conclusion, he was in effect simply seeking to re-argue a finding of fact made by the Tribunal. He made the point that the payment of bribes enables individuals to leave Iran without attracting the attention of the authorities, even though checks might otherwise be made concerning financial liabilities or political activities. The Tribunal has expressly referred in its reasons to the information available to it indicating that such checks would be carried out, despite the payment of bribes. The applicant also criticised the Tribunal’s reason for rejecting his story that he had been leniently dealt with by the authorities on the occasions he had been detained up to the time he left Iran. Again, however, in my view the Tribunal was not shown to have been in error in reaching that factual conclusion in a way which exposes it to review under s 476(1) of the Act. He also criticised the Tribunal’s analysis of the information he had provided concerning the period of time he had been in hiding, and where he had lived, in the period of time up to his departure from Iran. That criticism also did not demonstrate other than an attempt to argue that the Tribunal should have reached different findings of fact on those matters from those which it made. In reaching its findings of fact, however, I do not consider that it erred in a reviewable way.

10                  The one matter of concern arising from the second of the Tribunal’s reasons to which I have referred above for rejecting the applicant’s claim, namely that he did not claim that he, or anyone in his family, was ever suspected of anti-government activity before his brother left for Belgium and he did not claim that his brother had since become involved in such activities.

11                  On the hearing before the Court, the applicant asserted that those observations of the Tribunal were incorrect and that in fact he had claimed that his brother was suspected of anti-government activity before he left Iran for Belgium with the sporting team. If the contention is correct, it may enliven the ground of review available under s 476(1)(g) and (4)(b) of the Act.

12                  It is clear that the Tribunal appreciated the applicant’s claim that he was suspected by the Iranian authorities of political opinion adverse to the authorities because his brother had remained in Belgium and had been granted refugee status there. That was the information which the applicant had consistently provided to the respondent’s officers and to the Tribunal. It is also clear that the Tribunal was concerned to ascertain whether there was independent information which would verify the fact that his brother had been granted refugee status in Belgium. That was raised by the Tribunal with the applicant in the course of the hearing. On 19 April 2001, following the hearing, the Tribunal wrote to the applicant requesting that he provide the following additional information :

“· Documentary evidence from an official source (for example a certified photocopy of his passport or a letter to him from the Belgian immigration authorities) that your brother Ebrahim Karimi was recognised as a refugee in Belgium.

· A statement from Ebrahim that he was involved in the training of Sepah Pasdaran in Ahwaz, with basic details such as the form the training took and in what year/s it took place.”

The applicant did not provide that information by the nominated date, namely 17 May 2001, nor apparently did he indicate to the Tribunal before that date that he had any difficulty providing the information. At the hearing before the Court, the applicant asserted that he had been unable to provide such information because of some obstruction on the part of the officers of the respondent in passing it on to him. He asserted that he had documentary evidence which would establish that. Over the objection of counsel for the respondent, I indicated that I would give him the opportunity of providing that material to the Court to determine whether it should be received on the hearing of the application. Subsequently, the applicant provided a document described as a translation of a letter from the applicant’s brother. The original has not been provided. The document is undated. Judging from the facsimile notation, the document was sent to the applicant on 19 July 2001, from the office of the solicitors who had acted for him before the Tribunal. It does not demonstrate that the document was received by the respondent’s officers at the Woomera Detention Centre within the time fixed by the Tribunal, nor does it indicate that the original document (if there is one) from his brother was ever received by the applicant. The document otherwise has nothing to indicate its genuineness. I do not consider that that document demonstrates that the applicant was impeded in any way by officers of the respondent in the conduct of his review application before the Tribunal.

13                  The document is in the following terms :

“Letter from client’s brother Ibrahim Karimi

I left Iran five years ago and went to Belgium and applied for political asylum on 30th April 1998 I was granted a political asylum. I was one of the Tae Kwan Do players the Government of Iran wanted to train their military and security personnel to be used against the demonstrations and people who are opposing the policies of the Government. The government regardless of my will tried to use me for their own purposes.

I complained about that several times not only did they not listen to me but I was threatened to be killed. Also I didn’t want to use this sport against the People and I thought of it as a sport. I resigned from the position and again faced threats of deaths by the authority, I was looking to find any opportunity prior to being killed by the authorities, to leave the country. But due to being recruited in the military I was not allowed to leave the country. So I joined the national team of Tae Kwan Do of Iran. When I requested to leave the country they asked me 25 million Toman and I wasn’t able to afford that amount I asked my brother Daryoosh and got a cheque and fled from the Iran national team when the team was in Belgium.”

14                  The document does contain some information that the applicant’s brother, before his departure to Belgium, was regarded by the authorities in Iran as having anti-government political opinion. However, even assuming the document to be genuine, I do not consider that the Tribunal is shown to have fallen into error in its consideration of the applicant’s claim at the time of the hearing. The effect of the applicant’s contention was that the finding of the Tribunal to which I have referred was one which attracted the ground of review under s 476(1)(g) and (4)(b) of the Act. That is, that there was no evidence or other material to justify the making of the decision in this instance, because the person who made the decision based the decision on the existence of a particular fact and that fact did not exist.

15                  However, having carefully reviewed the material before the Tribunal, I do not think it is shown that, on the basis of the material then before the Tribunal, the fact did not exist that :

“Mr Karimi does not claim that he, or anyone else in the family, was ever suspected of anti-government activity before Ebrahim left for Belgium ...” (My emphasis)

16                  The statements of the applicant to the officers of the respondent, and to the Tribunal, do not demonstrate that that fact did not exist. They focused upon the suspicion of the Iranian authorities in relation to the applicant after his brother had decided to remain in Belgium, and because his brother had decided to remain in Belgium. The letter to which the applicant had referred, even if it be accepted as genuine, is not capable of demonstrating that at the time of the Tribunal’s decision that finding of fact by the Tribunal did not exist.

17                  Consequently, in my judgment, the ground of review which arguably might have been presented on behalf of the applicant, could not be made out. As I have indicated, in other respects in my judgment the Tribunal has not shown to have been in error. I accordingly dismiss the application. I see no reason why the normal order for costs should not be made. I order that the applicant pay to the respondent costs of the application to be taxed.

Associate:

Dated: 29 August 2001