FEDERAL COURT OF AUSTRALIA

Rahmani v Minister for Immigration & Multicultural Affairs

[2001] FCA 1367

MOHAMMAD HASSAN RAHMANI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W177 of 2001

FINN J

PERTH

18 SEPTEMBER 2001

THE COURT ORDERS THAT:

            1.         The application be dismissed.

            2.         The applicant pay the respondent’s costs.

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, Mohammad Hassan Rahmani, is a citizen of Iran who arrived in Australia by boat and without a visa or passport on 11 November 2000.  He had come from Japan via Indonesia.  He had resided in Japan since 1992.  His de facto wife, a Japanese citizen, still lives in Japan, as does his child who was born there in 1999.  The child's birth and in particular concerns about her future would appear to have been instrumental in Mr Rahmani's decision to move to Australia.

2                     On 16 November 2000 Mr Rahmani lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (the “Department”) pursuant to the Migration Act 1958 (Cth) (the “Migration Act”).  On 2 January 2001 a delegate of the respondent Minister made a decision refusing to grant a protection visa to the applicant.  In making that decision the delegate made adverse credibility findings in relation to events said to have occurred in Iran prior to his departure (which were central to his claim);  to the manner of his departure from Iran (allegedly using his cousin's passports);  and to such steps as were taken in Japan to formalise his marriage and to seek residential status in Japan.

3                     On 8 January 2001 Mr Rahmani applied to the Refugee Review Tribunal for review of the delegate's decision.  Subsequently, a statement on his behalf was submitted by a migration agent.  In substance, it challenged the matters the subject of the adverse credibility findings to which I have referred.  Additionally, it raised alleged consequences for himself and his de facto wife were they to live together in Iran.  The statement, I would note, related the applicant's fear of persecution to his political opinion and profile.

4                     It did not raise religion as such as a convention ground.  On 19 March 2001 a facsimile letter from the applicant's cousin who resided in Canada was forwarded to the Tribunal.  That letter purported to relate events involving mistreatment of Mr Rahmani's father subsequent to the applicant's departure from Iran.  It also indicated that the Iranian government had said it would give him his job back were he to return to Iran.  The letter writer disbelieved the genuineness of the statement.

5                     On 24 April the Tribunal wrote a letter to Mr Rahmani in the following terms:

“Dear Mr Rahmani,

RE:  APPLICATION FOR REVIEW OF DECISION TO REFUSE PROTECTION VISA (REFUGEE STATUS)

The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa.

The information is as follows:

Amongst your papers is a ‘Temporary Resident Card’ that appears to be in your correct name.  The card indicates that you held a passport and gives the passport number.  It would appear logical that the name on the card is the same as that on the passport.

This information is relevant because this document would appear to indicate that you entered Japan on a passport in your own name and not that of your cousin as you claimed.  This may cast doubt on your credibility.

You are invited to comment on this information.  Your comments are to be in writing and in English.  They are to be received at the Tribunal by 2 May 2001.

6                     Mr Rahmani's written response to this was to deny that the card was a valid card and to deny that he had a passport.  He later gave oral evidence to the Tribunal.  Apart from reiterating matters that had been previously raised both in interviews with officers of the Department and in statements in support of his application, he gave evidence that he was "black listed" so that he could not return to Iran.  He referred to instances showing a continuing governmental interest in him, for example, visits to his father.  And he gave evidence of his family home having been raided and of compromising documents having been seized that would cause him trouble.

7                     On 7 May 2001 the Tribunal made a decision affirming the delegate's decision not to grant a protection visa to Mr Rahmani.  He was notified of the decision on 8 May 2001.  He then lodged an application for an order of review seeking review of the Tribunal's decision pursuant to the provisions of s 476 subsection (1) of the Migration Act.  The application does not relate to or rely upon any of the grounds of review permitted by s 476(1).

The Tribunal's decision

8                     After setting out the relevant law in an unexceptionable manner, the Tribunal considered the applicant's claims and evidence.  It set out his claims at considerable length.  It likewise made lengthy reference to country information dealing, amongst other things, with human rights in Iran, political dissent, exit from and entry into Iran, treatment on return of persons who had made refugee applications in other countries, and the treatment of "non-Muslim" wives entering Iran.

9                     The following embodies the Tribunal's principal findings and some parts of the associated reasoning.  As before the delegate issues of credibility were to the fore in the findings made: 

(1)        The applicant's difficulties in and departure from Iran 

“I do not accept that the applicant encountered the difficulties he claimed prior to leaving Iran.  I found much of his evidence in relation to his claimed difficulties in Iran was implausible and at times fanciful.

The applicant served in the army and after discharge, with the help of family friends who were politically powerful, he was given a job as personal guard of the Chief of the Pasdaran.  Later he was promoted and held several important and sometimes sensitive jobs in the security forces, banking or related departments.  He claims he encountered some difficulty at one stage and was jailed and tortured.  I reject his claim that he encountered serious difficulty because he was subsequently promoted to other influential, important and sensitive positions including negotiating with the Americans and the representatives of Italy, Germany, France and Britain at a time when they had no formal diplomatic representation in Iran.

The applicant may well have tired of doing secret work or had a clash of ideology because he wanted to assist the people rather than the more powerful forces with which he was working, like the secret service.  However, I am not satisfied that he left Iran for reason of his political opinion or any other Convention reason.  I make this finding because I reject his evidence about events that occurred after his departure.”

I would comment on the reason given for the final finding (ie the rejection of evidence of the events that occurred after Mr Rahmani's departure from Iran).  Fairly read:  Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272;  that conclusion cannot be interpreted as suggesting that the Tribunal only considered events after Mr Rahmani's departure from Iran in assessing his claim to refugee status.  As the opening sentence of the material I have quoted above indicates, the Tribunal had already rejected his claims relating to events prior to his departure.  The phrasing of the justification for the finding made may be “unhappy”.  It discloses no judicially reviewable error.  I labour this matter because it apparently embodies the first two grounds relied upon by Mr Rahmani in the document sent to the court today by him to which I will later refer.  A copy of that document is set out in Schedule 1.

(2)               Post departure incidents and the applicant's political profile

(a)        “I found his claim that authorities raided his family home after he left the country and took evidence like tapes of Khomeni making speeches that were sensitive, implausible and fanciful”.

Reasons were given for that conclusion.

(b)               “I reject these claims arising from his family correspondence [from his cousin].  The timing of the provision of the correspondence is such that I am not satisfied that it was provided for a purpose other than to enhance the claims of the applicant that he had a profile in Iran.”

(c)                The Tribunal accepted that the applicant had not been involved in any political activity in Japan, nor had he been associated with any group that would have given him a political profile.

(d)               It rejected his claim he was black-listed in Iran as it was not satisfied that he was of any interest to the current Iranian government.

(3)               Japan 

The Tribunal was satisfied that:

“[T]he applicant had the opportunity to make an application for refugee status and his failure to do so is an indication that the depth of the applicant's fear of persecution is not significant.  I take this into account as one factor in reaching the conclusion that I am not satisfied that the applicant has a well-founded fear of persecution.”

(4)               The applicant's marriage and return to Iran

In relation to his marriage the Tribunal:

“[Was] not satisfied on the facts presented by the applicant that even if he did encounter difficulty for reason of his “mixed marriage”, he would face any more than a law of general application that would be enforced without discrimination.”

The Tribunal noted that neither his wife nor his child were included in his application before it.  It also considered that much in the claim as it related to his wife as being speculative.  His wife and child were currently living in Japan.

The Tribunal concluded:

“I am satisfied that the applicant has no well-founded fear of persecution upon return to Iran.  I can understand that the applicant may be living in a difficult situation in Japan and now that he has a child would prefer to start a life in Australia away from the restrictions and complications of life in Iran or Japan.  However, I am not satisfied that he is a refugee within the terms of the convention.”

The present application 

10                  As I have indicated, the application itself does not refer to any particular ground of s 476(1) of the Migration Act.  The applicant is unrepresented.  The direction given by the court that he file a written statement setting out the reasons why he considered the Tribunal's decision should be overturned was not complied with, although a one-page document was sent today to the court.

11                  That document does not assist in identifying a possible ground of review to support the application.  I have explained to Mr Rahmani that this court can only set aside a decision of the Tribunal on the grounds set out in the Migration Act.  Those grounds do not allow this Court to interfere with the Tribunal's decision just because the Tribunal has taken a particular view of the facts of his case with which it might disagree.  As Kenny J commented in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 257:

“A Tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis or because it adopts unsound or questionable reasoning.”

Importantly, this court cannot change a decision of the Tribunal even if it thinks the Tribunal was wrong on the facts.  Furthermore, the Tribunal in its statement of reasons does not have to provide a line by line refutation of an applicant's case. 

12                  At the hearing before me Mr Rahmani again raised new matters as also matters which, if he had raised them at all previously, he had given them no emphasis.  I would instance his alleged conversion to Christianity (a matter not previously raised) and his distribution of fliers in Iran (a matter be said he raised when he first arrived in Australia).  I would also reiterate that he had had the assistance of a migration agent when a statement was prepared on his behalf for submission to the Tribunal.

13                  Turning to the facsimile document sent to the court today, the nine matters referred to in that document are, save in three instances, no more than challenges to the correctness or in one instance (ie paragraph 9), the reasonableness, of fact-finding:  I refer to paragraphs 3, 4, 6, 7, 8 and 9 of the document.  I have already indicated that the court cannot change a decision of the Tribunal if it thinks the Tribunal was wrong on the facts.  Two of the remaining three paragraphs (ie paragraphs 1 and 2) related to the Tribunal's non‑acceptance of events before and after his departure from Iran.  I have already dealt with this matter.

14                  The one remaining paragraph, paragraph 5, involves an insinuation against the Tribunal member, but one falling short of an allegation of actual bias or of non‑exercise of the jurisdiction under the act.  It may, though, when coupled with matters raised before me, suggest some incivility at the hearing.  I can express no opinion on that matter.

15                  The respondent has submitted that the Tribunal's reasons for decision demonstrate that it correctly interpreted the applicable law and that it did not incorrectly apply the law to the facts as found by it.  Having regard to the Tribunal's findings and conclusions, its ultimate conclusion that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention was the only conclusion reasonably open to it.  The opposite conclusion, it was submitted, would have been irrational.

16                  After reviewing the Tribunal's decision myself, I cannot see any available ground for interfering with it.  While the Tribunal's reasons are not always felicitously structured and phrased, this provides no proper objection to them.  And if they betray little by way of second thoughts on the Tribunal's part, the application could properly be considered as one not requiring second thoughts - see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.  I would add that under the shadow of the credibility findings made, but not only under that shadow, it could not reasonably be said that the s 476(1)(g) no evidence ground could be made out in this case, even if there were some factual errors made by the Tribunal.

17                  My conclusion, I reiterate, does not mean that the Court considers the Tribunal was right about the facts.  It only means that no available ground for review under s 476(1) of the Migration Act has been made out.  I cannot enter upon the merits of the matter, but that is what Mr Rahmani seeks.  The order of the court will be that the application be dismissed.

Associate:

Dated:              25 September 2001

SCHEDULE 1

The member has relied on information that I did not state.  Now, I would like to explain my reasons as follows:

1)      The member claims that all incidents, which happened, took place after I had left Iran.  However, on the interview tapes I have clearly stated that I had experienced a lot of problems in Iran and therefore was forced to flee the country due to these difficulties. 

2)      According to the member, he doesn’t accept the incidents because they have occurred after my departure from Iran.  It seems, though, that he has accepted the incidents that had taken place prior to my departure.

3)      The member claims that I served in the army, while the fact of the matter is that I have never raised such a claim during my interviews and this fact can be verified by listening to my interview tapes.

4)      Member states that my wife has contacted the UNHCR office in Japan.  Once again I do not remember mentioning this point at all during the interview sessions and believe that the member has misunderstood me.  Please refer to my interview tapes to check this claim.

5)      During the hearing session, the member was not keen to listen to my explanations.  It seemed that she considered all my claims baseless and therefore lost interest to hear or cross reference vital issues and facts.

6)      The member says that he has not considered the status of my wife and child while making the decision for protection visa.  However, I have clearly stated in my interview and as well as RRT hearing that one reason I left Japan was for the sake of my wife and child.

7)      The member did not accept my political problems I had in Iran.  Furthermore, he didn’t believe my religious situation either.  However, these vital facts are part of my life and I feel it should not be ignored under any circumstances.

8)      Despite the fact that I have mentioned on various occasions during the interviews and in courts that I didn’t have financial problems, the member has expressed his view that I had a rough life.  I emphasize once again that the lack of identity was the main problem which my family and I were facing.

9)      The member has concluded that I did not have any real political activities or opinion that pose a serious threat to safety.  With all due respect to the member’s idea, I must point out that being an illegal in Japan was the main reason why I did not dare to continue my political activities for fear of attracting unnecessary attention to myself and my family.  I believe that any other sensible person would do the same in my situation.  Besides, the member has forgotten to notice that it is impossible for a person with my background not to have political involvements.

Mohammad Hassan Rahmani, 1564