FEDERAL COURT OF AUSTRALIA

Shorafa v Minister for Immigration and Multicultural Affairs [2001] FCA 1661

MIGRATION – application for protection visa - no point of principle

Migration Act 1958 (Cth) ss 36(2), 14, 65, 476,

Refugees Convention

Refugees Protocol

MOJAHED SHORAFA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 142 of 2001

LEE J

10 SEPTEMBER 2001

PERTH

THE COURT ORDERS THAT:

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 s 476 of the Migration Act 1958 (Cth) (“the Act”) for review of a decision made by the Refugee Review Tribunal (“the Tribunal”) affirming a decision of a delegate of the respondent (“the Minister”) that a protection visa not be granted to the applicant.

2                     The applicant, 22, is an Iranian national of Arabic ethnicity.  He arrived in Australia on 23 December 2000 as an “unlawful non-citizen”, as defined by s 14 of the Act.  Pursuant to s 189 of the Act the applicant was detained and has been held in “immigration detention” thereafter.  On 9 January 2001 the applicant lodged an application for a protection visa. 

3                     Determination of the outcome of an application for a visa is governed by s 65 of the Act, which provides that if the Minister is satisfied that, inter alia, the criteria prescribed for a visa by the Act or the regulations have been satisfied, the Minister is to grant the visa but if the Minister is not so satisfied the grant of the visa is to be refused.

4                     At material times, s 36(2) of the Act provided the following criterion in respect of a protection visa:

“A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”

5                     In s 5 of the Act, “Refugees Convention” and “Refugees Protocol” (together referred to hereafter as “the Convention”) are defined respectively as the “Convention relating to the Status of Refugees done at Geneva on 28 July 1951” and the “Protocol relating to the Status of Refugees done at New York on 31 January 1967”.  The term “protection obligations” is not defined in the Act and is not a term used in the Convention.

6                     The Convention is a treaty under which the “Contracting States” have agreed to apply the provisions of the Convention to “refugees.”  Article 1(A) of the Convention provides:

“For the purposes of the present Convention, the term ‘refugee’ shall apply to any person who:…(2)…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 avail himself of the protection of that country;…”

7                     Exception to, or cessation of, the operation of the Convention is set out in, inter alia, Articles 1(C), (D), (E) and (F).  None of those exceptions is said to be relevant in this matter.

8                     The applicant’s claims as recorded by the Tribunal were as follows:

“[The applicant] states that he suffers discrimination because he is an ethnic Arab.  He states that Arabs are insulted and Persians are favoured.  He was not able to obtain a government job.  Despite applying for several positions, less-qualified Persians were preferred.  He initially claimed that some three years ago, the government confiscated farmland, including his family’s land, providing inadequate compensation and promising to provide jobs for the sons of farmers whose land was resumed.  The jobs were not provided and people who protested disappeared.  He told the Tribunal that this occurred seven or eight years ago and again just recently.  He added that his family still has some land but it was rendered useless during the war with Iraq. 

He states that he was continually abused and insulted at school so he did not go past level three.  Sometimes, the teachers insulted him because he is an Arab.  He left school and contributed support to his family in 1989 and he had problems with his family regarding work.  A few months before he left for Australia, he was detained by religious police because he wore the wrong pants.  He refused to pay a bribe and also refused to sign a document that mentioned adverse involvement against the government, and he was released after two days.  He was not harassed again as a consequence of that incident.

Two or three years ago, the Applicant’s parents and his cousin’s parents made a marriage arrangement.  He fell in love with his cousin and they determined to marry according to their parents’ wishes.  They became boy- and girlfriend.  His family and her father approved the marriage plans, but told them to wait, while her brothers disapproved.  He said her brothers did not like him because he did not work.  Tired of waiting to marry, about three and a half months before the Applicant left for Australia, they slept together, anticipating that her brothers and cousins would then approve their marriage.  He told the Tribunal that she had not intended to inform her brothers but they found out after her elder sister told her parents what had transpired.  Indeed, her sister rang to inform them that she was going to tell her mother and to advise the Applicant to go into hiding because her brothers would be angry.  They were angered as she had predicted and threatened to kill the Applicant.  He told the compliance interviewer they chased him with guns, although his evidence at the hearing was that he managed to avoid them.

…

The Applicant went into hiding with relatives in nearby villages.  First he went to an uncle’s house.  His brothers told him that her brothers wanted to kill him by stoning him to death, according to Islamic custom. …”

9                     Although the Tribunal stated that it did not accept all of the applicant’s claims, it did accept that the applicant had encountered problems over his relationship with his cousin.  In scrutinising the applicant’s evidence as to the events that occurred after his cousin’s family discovered the relationship with his cousin, the Tribunal concluded that there was not a real chance that the applicant would be “seriously harmed” by her brothers.  However, the determinative finding was that the applicant’s fears were not Convention-related:

“Not only are the chances of encountering serious harm remote, the Applicant’s fears are not Convention-related.  He conceded at the hearing that his pursuers did not wish to hurt him for reason of his race, religion, nationality or political opinion.  The Tribunal has considered whether or not they want to harm him because he is a member of a particular social group.  For the purposes of the Convention a particular social group comprises “a recognisable or cognisable group within a society that shares some interest or experience in common” (Morato v. The Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401, per Lockhart J. at p. 416). …

…

The Applicant is the target of revenge for something he personally did, not for reason of being a member of a particular social group whose members share common characteristics with other individuals to the extent that they are bound together by a common unifying element that sets them apart from society at large.  The Tribunal is not satisfied that the harm he fears is for reason of his membership of a particular social group.  They clearly do not.  His fiancee’s brothers have targeted him for something he has done, namely, slept with their sister, not because he is a member of a group.

…

The Tribunal accepts that the Applicant was bullied at school because he is an Arab and it is plausible that he has met with some discrimination from time to time.  It is also plausible that people whose land was resumed were inadequately compensated and the victims of broken promises.  However, the Applicant has been gainfully employed as a salesman for a long period and he was able to freely move around the country to work and obtain a passport and leave the country.  He says he was detained because he wore the wrong pants.  That appears to be an isolated incident over his whole life and he could avoid similar incidents in the future by conforming with dress codes as he apparently has done at other times.  The Applicant has not been persecuted because he is an Arab. …”

10                  The applicant appeared in person before the Court, assisted by an interpreter.  He was unable to add to the grounds contained in the application for review, which amounted to a repetition of his claims before the Tribunal.  The applicant made no submissions relevant to a ground of review under s 476 of the Act.

11                  Perusal of the reasons of the Tribunal does not suggest that a flaw in the decision‑making process occurred when the Tribunal found that the fear held by the applicant that he would suffer harm if returned to Iran was not a fear of persecution to be inflicted by reason of race, nationality, membership of a particular social group or political opinion. 

12                  It follows that the application for review must be dismissed with costs.

Associate:

Dated:              10 September 2001