FEDERAL COURT OF AUSTRALIA

Mahmmodifar v Minister for Immigration & Multicultural Affairs [2001] FCA 1510

Migration Act 1958 (Cth) ss 476, 476(1)(a), 476(1)(e)

Waterford v The Commonwealth (1987) 163 CLR 54 cited

Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 cited

Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6 cited

Ismail v Immigration & Multicultural Affairs [1999] FCA 1555 cited

FARHAD MAHMMODIFAR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 143 of 2001

RD NICHOLSON J

26 OCTOBER 2001

PERTH

THE COURT ORDERS THAT:

1.                  The application 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                     The applicant is a citizen of Iran who arrived in Australia on 3 November 2000.  His position is to be understood from the following background listed by the Refugee Review Tribunal (“the Tribunal”):

“1.       The applicant is an Iranian national who was born in Ahwaz, Iran.

 2.        He and his friends formed a band in 1988.  The applicant was the band manager and would sing occasionally.  The band would be hired out to play at functions.

 3.        In 1991, the band was engaged for a wedding in Amannieh for two nights.  At the end of the first night the Basiji came to the wedding and the father of the bride gave them some gifts.  He told the applicant that the Basiji would not bother the band the next night either as he had “fixed things up”.

4.         At 11.00pm on the second night the Basiji came to the house.  When the applicant saw the Basiji he threw away the microphone that he had been holding.  The band ran out of the house, mounted their motorbikes and attempted to escape from the Basiji.

5.         The Basiji ordered the band members to stop and opened fire.  The applicant was shot through the shoulder, luckily the guitar which he had on his back took most of the force of the bullet.

6.         The applicant was treated by a doctor at the house of one of his friends.  The wound was a simple flesh wound and he did not have to attend the hospital.

7.         The applicant opened a shop in 1999.  Some government officials came to the shop and told the applicant he needed a permit to operate a shop.  In order to get a permit the applicant needed to get permission from the taxation office and the local council.

8.         The applicant approached Sepah [the Pasdaran or Revolutionary Guards] to ask for a priority letter to produce in order to speed his permit application.  When Sepah removed the applicant’s file they immediately put him in handcuffs and took him to the detention centre in Ahwaz.

9.         He was detained for one day and no one spoke to him.  Later two interrogators came and asked him who made his file and how often he had used his priority status (gained because of military service during the Iran/Iraq war).  The interrogators started to beat the applicant and he became angry and fought with them.

10.       They told him that he had not served in the Peoples’ Forces and that his record had been forged.  They wanted the applicant to admit that his records had been forged.  The applicant was released on the proviso that he return for later interviews.

11.       The applicant spoke to one of his friends in Sepah.  The friend told him that he should not turn up for a later interview and to remain in hiding.

12.       The applicant found that the records of people who had fought in the war and had not used their entitlements were being used by people to provide benefits to others who were not entitled to them.  Apparently the applicant’s records had been changed to enable others to be given his benefits.

13.       The applicant’s friend in Sepah found out that they intended to place the blame on the applicant.

14.       The applicant was worried that if the authorities looked further into his past they would find out about the incident with the Basijis and impute him with an anti-government political opinion as a result of the band playing music which had not been government approved.  As a result of those problems, the applicant decided to leave Iran.”

2                     The applicant’s claim therefore was that he had a well-founded fear of being persecuted by reason of political opinion.  That political opinion was said to arise from two factors, namely:

(a)                that the authorities of Iran would impute him with an anti-government political opinion because the band which he managed plays non-government approved music;

(b)               as Sepah believed the applicant was part of a document forgery scheme, it was likely that any information they received which indicated that the applicant was anti-government would be enough to impute the applicant with a political opinion. 

He made these claims in connection with an application for a protection (class XA) visa under the Migration Act 1958 (Cth) (“the Act”).  A delegate of the respondent refused the application on 25 January 2001.  On 20 April 2001 the Tribunal affirmed the decision not to grant a protection visa to the applicant. 

Relevant legislative provisions

3                     Under s 36(2) of the Act 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.

4                     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”.

Tribunal’s findings of fact

5                     The following findings of fact are extracted from the Tribunal’s reasons:

(1)               While he has described punishments for playing music illegally, I have given weight to the 1996 DFAT advice cited above and put to the applicant that the authorities tend to turn a blind eye to such private performances as those at weddings, and do not accept that he would be punished in any way for his association with a band.

(2)               I have considered the applicant’s claim at his hearing that since his departure government agents have visited his house and taken musical instruments, videos and so forth in an effort to bring a case against him.  I do not accept this claim.  It was made first at hearing, and was not mentioned in the letter from his wife which he has submitted to the Tribunal.

(3)               I also do not accept that the applicant had been accused of falsifying his army records and that a case was being made against him.  He has stated that when he went to the Sepah and it was discovered that his records had been altered, he was able to leave after producing his army discharge papers and his identification card.  While authorities may have wanted to question him further, the applicant would have had no difficulty in proving his length of service.  Indeed, the copy of his military discharge certificate submitted to the Tribunal clearly states that he served for a period of twenty-eight months from 9 August 1986 until 9 December 1988.  Had this been queried he would not have been released, and further checks of his army record could have been made without difficulty.

(4)               I regard the applicant’s account of a friend informing him that a case was being made against him to be an embellishment.

(5)               I am also unable to accept that the applicant was able to leave Iran on his own passport because he had changed his name in 1994.  He has stated that he changed his name because he was in trouble because of his music, although earlier in the hearing he stated that he did not get into trouble with the authorities for this reason.  In his primary application he stated that he was able to pass through passport checks because he used a special counter as advised by his agent, while at his hearing he said that his agent had assured him that because his passport was in his new name he would have no difficulties.  From his primary application it is apparent that while four of his siblings use his old name, Gorgeh, at least one brother uses his new name, Mahmmodifar. 

(6)               It is improbable that with all this information the airport officials would not have been aware of his name change, which is, as stated above, clearly recorded on his identity card.  The independent evidence also states that “With so may checks by the authorities involved, it would be difficult for passengers who are wanted by the Iranian authorities to pass the control system at Teheran’s airport by means of bribery…”.

(7)               For the foregoing reasons I cannot be satisfied that the applicant is a person of interest to the Iranian authorities, nor that his fear of persecution for a Convention reason is well-founded.

(8)               I have also considered the applicant’s claims that since his departure his house has been searched and various items taken as evidence against him and that his father has been detained.  While it is possible that the authorities may have wished to question him again about the alleged document fraud, as discussed above it is improbable that the claimed search and detention were for the reasons he has given.

(9)               The applicant has claimed that he would be strip searched on return and his bullet scar would raise the accusation that he had been involved in political opposition.  He also claimed that because he had applied for asylum he would be mistreated on return.  There is no information before the Tribunal which would suggest that he would be subject to mistreatment.  … it can be reasonably inferred that the applicant has no reason to suppose that he will be persecuted on return because he could be identified as an opponent of the government or because he has applied for asylum.  The applicant’s fear in this regard is not well-founded.

Grounds of review

6                     The grounds on which a decision of the Tribunal may be reviewed by this Court are limited by the provisions of s 476 of the Act.  In his application the applicant seeks to invoke three of these grounds.  The first is s 476(1)(a), which provides that procedures that were required by the Act or the regulations to be observed in connection with the making of the decision were not observed.  The second seeks to rely on s 476(1)(e) and claims that the decision involved an error of law, being an error of law involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision.  The third is that there was no evidence or other material to justify the making of the decision.  That relies on s 476(1)(g) understood in accordance with the provisions of s 476(4).

7                     The applicant supported his application with a handwritten submission addressing six principal points.  He also made oral submissions at the hearing of the application and in the main these oral submissions supplemented or otherwise developed the matters addressed in the written submissions.

8                     It is the case that nothing stated by the applicant either in his written or oral submissions goes beyond addressing issues of fact.  This Court has no jurisdiction to review findings of fact.  Indeed, the Court cannot review wrong findings of fact:  Waterford v The Commonwealth (1987) 163 CLR 54 at 77; Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303.  The Court can only interfere with issues of fact in the event that there is no evidence or other material to justify the making of the decision.

Reasoning

9                     The no evidence ground can, in accordance with s 476(4), only be made out (relevantly) where the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.  The applicant does not suggest any basis on which the requirements of s 476(4)(a) or (b) could be satisfied.  Further, and in any event, even if the applicant could establish the requirements of either of those paragraphs, he would still have to establish that there was no evidence or other material to justify the making of the Tribunal’s decision.  The Tribunal’s reasons for decision demonstrate beyond argument that it could not be said there was “no evidence or other material” to justify the making of its decision.

10                  There is also no basis for the application of the first limb of s 476(1)(e).  Not only has the applicant (as a detained refugee claimant) not himself made any case of error of law involving an incorrect interpretation of the applicable law but none is apparent from the reasons of the Tribunal.  The Tribunal commenced its reasons by referring to the legislation, the Convention and to the effect of decisions in the High Court of Australia.  Those statements, which are in form common to most of the decisions of the Tribunal, have been found on prior occasions to contain no error of law.

11                  With respect to the remaining grounds under s 476(1)(a) and second limb of s 476(1)(e), it is appropriate to turn to the issues which the applicant raised in his oral and written submissions. 

12                  The first of these was that misinterpretations had taken place at the hearing before the Tribunal.  It has been accepted that where significant errors occur in the interpreting of an applicants evidence to the Tribunal, it may be concluded that an applicant has not been accorded the right provided by s 425(1) of the Act and that the application of s 476 will be attracted:  Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6; Ismail v Immigration & Multicultural Affairs [1999] FCA 1555.  I do not consider that the errors referred to by the applicant were significant so as to support review of the Tribunal’s decision. 

13                  One of the matters which featured heavily in the applicant’s submissions in this respect was that his source of knowledge of the invasion of his house and the seizure of goods by government agents was from a telephone conversation with his wife after receiving her letter:  see findings (2) and (8) above.  In another portion of the Tribunal’s reasons reference is made to a statement by the applicant concerning contacts with his family since arriving in Australia.  It recorded that his information on the invasion of his house came from those contacts.  The Tribunal was aware that his source of knowledge came since his arrival in Australia.  If it is the case that the interpreter did not translate a reference to that contact being by telephone, it is not a significant error of interpretation.

14                  Another matter to which it is said interpretation errors relate was the dates on the documents said to have been forged:  see finding (3) above.  The military discharge certificate referred to in that finding was in evidence before the Tribunal and the Tribunal was aware of the true dates shown on that certificate.  In oral submissions the applicant said that what was forged were file numbers on his documents and that he had that file in his possession.  It was not in evidence before the Tribunal.  The dates which the Tribunal referred to in finding (3) were not affected by any alleged error in interpretation. 

15                  A further aspect of interpretation raised by the applicant was that the interpreter spoke a different dialect to himself.  However, the absence of any significant errors in the interpretation means that this cannot assist the interpreter, if it is correct. 

16                  On all the issues relating to interpretation there is an absence of evidence of misinterpretation.  This is understandably so in the case of a detained refugee claimant.  Nevertheless, if there were apparent significant errors there would still be the difficulty for the applicant to overcome of establishing the existence of the fact of misinterpretation, a matter unaddressed in his case. 

17                  In relation to the Tribunal’s finding concerning the circumstances of the applicant’s departure from Iran, he submitted that he had fled on 48 hours notice so that within that time his name would not have been on the black list at the airport.  Furthermore, he said there may have been no awareness of his name change.  Those are matters going to the merits of the Tribunal’s findings of fact and this Court cannot address them without impermissibly interfering in the realm of merits review.

18                  In relation to his change of surname and whether other members of his family had changed their surname the applicant offered a factual explanation.  That again goes to the issue of merits review which is impermissible for this Court.  It is apparent also that the Tribunal accepted his name change but reached its conclusions in findings (5) and (6) for other but related reasons. 

19                  Then the applicant submitted that the Tribunal had given no regard to three pages of written submissions submitted to it on his behalf.  However, the Tribunal’s reasons recite that it had before it written submissions in support of the application and referred to a suggestion from the applicant’s advisor.  The absence of any further specific reference to those submissions is simply an absence of reference to an item of evidence and does not give rise to an error of law.  There is nothing to suggest that the nature of the applicant’s claims were misunderstood by the Tribunal.

20                  In relation to his father’s alleged detention – see finding (8) – the applicant sought to obtain a document to establish that his father had been detained.  However, such document was not before the Tribunal and cannot give rise to any error of law by it. 

21                  The reasons for the rejection of the applicant’s claims by the Tribunal were not confined to any inference which it may wrongly have drawn from the letter which the applicant received from his wife:  see finding (2).  In any event, if the Tribunal drew an inference from that letter concerning the veracity of the applicant’s claim of invasion of his home, it was an error of fact which this Court cannot review. 

22                  Understandably, given the qualifications and situation of the applicant, his submissions are in truth submissions inviting the Court to re-engage in the merits addressed by the Tribunal.  The submissions do not establish an error of law under either of the two of the remaining grounds relied upon namely, s 476(1)(a) and the second limb of s 476(1)(e).  The consequence is that there is no legal basis on which the Court can review the decision of the Tribunal.

Conclusion

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

Associate:

Dated:              26 October 2001