FEDERAL COURT OF AUSTRALIA

Applicant A v Minister for Immigration and Multicultural Affairs

[2001 FCA 1723

APPLICANT A v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 247 of 2001

CARR J

5 DECEMBER 2001

PERTH

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.

REASONS FOR JUDGMENT

introduction

1                     This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 15 June 2001, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant.  The applicant, who is a citizen of Iran, arrived in Australia on 11 November 2000.  On 27 March 2001 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) (“the Act”).  On 19 April 2001 a delegate of the respondent refused to grant a protection visa and on 24 April 2001 the applicant applied for review of that decision.   

the applicant’s claims and the Tribunal’s decision

2                     The applicant’s claims were numerous and difficult to summarise.  However, they included the following.  Although the list of claims to which I refer is a long one, it is not exhaustive.

·          He was born in 1972 in Ahwaz, Iran.  He had lived at the same address all of his life and had been helping on the family farm since his childhood.

·          He did his military service from January 1996 until January 1998.  He had a diploma in accountancy and a degree in government management.  He speaks Farsi, Arabic and some English.  He worked as an agriculture teacher from January 1998 until January 2000.

·          He and his parents and seven siblings live in Iran.  He is single.

·          Initially, at his arrival interview, the applicant said that en route to Australia he used a genuine Iranian passport.  He threw his passport into the sea before arriving in Australia.  He was instructed to do this by others who had also left Iran.  He claimed that he arrived in Indonesia from Malaysia by plane.  His passport was examined on arrival.  At and subsequent to his interview with the respondent’s delegate, the applicant claimed that he had left Iran using an Iraqi passport.

3                     At the initial arrival interview the applicant’s further claims were as follows:

·          He began planning to leave Iran about fifteen years ago.  He stated that he left Iran because of social problems, injustice and the neglect of Arab minority groups.  He claimed that Arabs were not recognised as rightful citizens of Iran.  He said that Arabs in Iran are told that they are originally Iraqi Arabs.  Many people believe that they are responsible for bringing Islam to Iran.

·          In the past five years the Iranian government had done everything in its power to eliminate Arab culture and language and they have succeeded to some extent.  He stated that in the areas in which Arabs live they have resisted this change.  He claimed that the Iranian government introduced drugs into the area and caused extreme poverty and deprivation. 

·          The applicant claimed that he and his friends had put a lot of effort into getting a higher education in the hopes of getting proper employment so that they could help their families financially.  He stated that they have not succeeded in this.  They pass tests, but when they go to the interview they are rejected because of their ethnicity.  He claimed that Arabs were not allowed to become involved in educating their own race, for example by warning their youth against using drugs.  They were also not allowed to have an Arabic magazine or publications.  The applicant claimed that he has been verbally insulted; for example, he has been told “Get lost Arab, you’re not an Iranian”. 

·          He thought that by obtaining a higher degree of education he would have a brighter future and would be able to hold up his head as a proud man, but he has not been able to achieve this.  He stated that he had seen people of his own race suffering from extreme poverty and drug addiction and he was afraid that he could end up with the same problems.  So he made a conscious decision to rescue himself from such a situation and have a better future so that he would be able to help his countrymen and his family. 

·          He chose to come to Australia because European and some other countries are very nationalistic, but Australia accepts migrants with open arms and nationality is not an issue.

·          He had been arrested and interrogated without being told the reason for this.  He stated that his activities were cultural and educational – not political.  He did not cause any political or racial difficulties or frictions.

4                     Subsequently the applicant widened his claims to include the following:

·          Whilst at University he wrote articles against the regime and on one occasion Basiji at the University “introduced” him to the Etel’at who detained him for four days and accused him of instigating Arab nationalism.

·          He was introduced to Hasham Chenani in 1997 as a result of which he was able to get information about Khalgh Arab and their aims and doctrines including the fact that Khalgh Arab was fighting for the independence of Khuzestan, a province in the south of Iran in which Ahwaz is located.

·          He was again arrested by Etel’at in 1998.

·          During his military service, he started organising political activities aimed at achieving social justice and Arab freedom as a result of which he was introduced to a member of the Democratic Front of Ahwaz Liberation which was located in London.

·          The aims of this group were territorial integrity for Arabs, the publication of Arab newspapers and books, and other Arab rights.

·          In July 1999 there was a meeting with the city council authorities and other people to discuss the problems of the city.  He attended that meeting.  The people became angry and chanted anti-government slogans.  Security forces raided the meeting and arrested the applicant and others and he was detained for ten months.

·          The applicant continued his political activities and was at a meeting with the sheikhs of the area which was raided by the Etel’at.  He was able to run away by running over several roofs.  He was shot at.  He threw himself into a river, swam to some bushes outside the city where he remained for five days.  On the fifth day he reached his uncle’s house, learnt that two of his friends were killed in the clashes, that everyone at that meeting was arrested and that the Etel’at was after him.  He decided to flee Iran and did so with the help of his uncle and a smuggler.

·          He said that he did not mention his problems at the first interview because he did not want to tell the Australian government that he had left Iran illegally and because he thought that this would make the Australian government consider him to be a criminal.

·          He had been told that there would be three interviews and that he should leave the details for the last interview as that was the most important one.  He was also afraid that information would leak to the Iranian government because he knew that western countries wrongly thought that there had been political freedom in Iran since Khatami was elected as President.

·          If he were returned to Iran he would be interrogated, questioned and sent to the Revolutionary Court where he would receive a harsh and unjust sentence and most probably be sentenced to death, given his bad record with Etel’at. 

5                     Rather than attempt to summarise the Tribunal’s findings and reasons, I set them out below in full.  I have added numbers to the paragraphs to facilitate the references which I make later in these reasons.

“FINDINGS AND REASONS:

1.  The applicant claims that if he returns to Iran he will be persecuted because of his political activities.  He also claims that he will be persecuted because he left Iran illegally.  In assessing the applicant’s Convention claims I am required to determine whether he has a well-founded fear and if so whether what he fears amounts to persecution for a Convention reasons.

2.  When determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the credibility of the applicant. When assessing credibility, the Tribunal must be sensitive to the difficulties often faced by asylum seekers and should give the benefit of the doubt to those who are generally credible, but unable to substantiate all of their claims. However, the Tribunal is not required to accept uncritically any and all allegations made by an applicant. In addition, it is not necessary for the Tribunal to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. Moreover, the Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality. See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MlEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547. If the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true. (See MIMA v Rajalingam (1999) FCR 220).

3.  I accept that the applicant is an Iranian national and that he is of Arab ethnicity. However, I consider that his evidence was internally inconsistent and inconsistent with the independent evidence before me. I am of the view that the applicant has fabricated claims in an attempt to bring himself within the definition of a refugee. I do not find the applicant to be a credible or a reliable witness.

4.  In his application for a protection visa and at the hearing the applicant's major claim was that he feared persecution in Iran because of his political activities. He claimed that he had been imprisoned in the past because of these activities and that he had narrowly escaped being arrested shortly before leaving Iran. The applicant also claimed that he had left Iran illegally, using an Iraqi passport. I do not accept the applicant's claims in this regard. Firstly, when he was interviewed upon arrival in Australia, the applicant specifically stated that he had not been involved in any political activities or with any political groups. He also stated that he had left Iran using a genuine Iranian passport.

5.  The applicant has advanced several reasons for the major discrepancy between the information he provided on arrival in Australia and his later claims. In his application for a protection visa he claimed that he had not wanted the Australian government to think he had left Iran illegally, that he had heard that he should leave the details of his claims to the last interview and that he feared some information might be passed back to the Iranian government. When the case officer interviewed him, the applicant claimed that he did not know his rights and that prior to the entry interview the interpreter told him to keep his answers brief. At the hearing the applicant claimed that he feared he could be deported to Iran and that an interpreter who had spoken to him in the company of an immigration officer sometime prior to the first interview told him that he would be interviewed three times, so he did not have to make all his claims in the first interview.

6.  I accept that for a variety of reasons asylum seekers may be reluctant to disclose full details of their claims on arrival in Australia. This reluctance may arise from asylum seekers’ previous experiences with the authorities in their own country, their concern about being sent back to where they came from, or distress and anxiety in relation to the situation they find themselves in. In some cases, they may have been given quite specific instructions about what they should and should not say on arrival in Australia. I accept that reluctance to provide full details of claims is, in many cases, quite understandable. In addition, the record of the interview may be inaccurate for a variety of reasons, including interpreting errors. Accordingly, it may be, at times, inappropriate to place weight on the record of the interview.

7.  However, in the applicant's case, his evidence was that he left Iran in fear of his life. The officer conducting the entry interview specifically told the applicant that he was expected to tell the truth during this interview. He was also told that the interview was his opportunity to provide any reasons why he should not be removed from Australia. The applicant was also advised that if the information he gave at any future interview differed from what he said during his entry interview, this could raise doubts as to the reliability of what he said.

8.  The applicant is a well-educated man apparently from a fairly affluent background. In addition to Persian and Arabic, he understands and speaks reasonably good English. There was nothing in the way he gave evidence before the Tribunal to suggest that he is naive or in any way deficient in understanding. Nor was there anything in the way he gave evidence to suggest that he is easily intimidated. The applicant impressed me as a person who, if he was unsure of what he was being asked, would ask questions to clarify the situation. In my view, it is implausible that a person such as the applicant, when clearly asked how he left Iran and whether he had been involved in any political activities, would give answers which he now claims are completely inconsistent with the truth. I am of the view that if the applicant had been involved in political activities in Iran, had been imprisoned because of this, had narrowly avoided being arrested and had left Iran illegally he would have indicated this during his entry interview, however tentatively.

9.  There are other aspects of the applicant's evidence concerning this issue which lead me to reject the applicant's claim to have been politically active in Iran. In my view, the applicant's evidence concerning his alleged escape was implausible. I accept that houses in the Ahwaz area have access to roof tops. However, this is clearly something that would also be known to the authorities in Ahwaz. In my view, if the authorities wanted to raid a house and arrest all the occupants, they would take steps to ensure that the access points to and from the house were appropriately secured. When I put this to the applicant at the hearing, he had a number of explanations for the failure of the authorities to arrest him. He stated that the authorities had entered the house in an “abnormal” way. When I suggested to the applicant that this would not make any difference, he claimed that the authorities had surrounded the area and had shot at him while he was trying to escape. Overall, I found the applicant's evidence concerning his alleged escape unconvincing.

10.  More significantly, the applicant's evidence concerning his political activities was problematic because it is inconsistent with the independent evidence before me. In relation to this, the applicant claimed that the ultimate goal of his group, which he claims was associated with the AAPDPF, was independence for Khuzestan. However, the independent evidence before me indicates that whilst there was a push for the independence of Khuzestan (otherwise known as Arabistan) at the time of the Revolution, Arab Iranians supported the Iranian government during the Iran-Iraq war. There is no evidence before me to suggest that there is currently any political push for autonomy by Arab Iranians. If there were any such movement, I am of the view that it would be known to sources used by agencies such as the US State Department, the Australian Department of Foreign Affairs and Trade, the United Kingdom Home Office and UNHCR.

11.  I note the letter from the AAPDPF. However, in my view, this letter is of no assistance to the applicant. The letter refers to the applicant as a supporter of the organisation, who was sharing the organisation's "political-social activities daily here in the United Kingdom and Europe”. However, the applicant has not claimed and the evidence does not suggest that the applicant has ever been to the United Kingdom or Europe. He therefore could not have participated in any political activities in such locations. The letter does not suggest that the organisation is active within Iran, let alone that the applicant was involved in political activities in that country. In my view, if the AAPDPF was active in Iran, this would also be known to sources used by the agencies referred to above.

12.  Overall, I am not satisfied that the applicant was ever involved in any political activities in Iran. I am of the view that he fabricated his claims in this regard in an attempt to create for himself the profile of a refugee. As I am not satisfied that the applicant was ever involved in political activities, I am not satisfied that he was ever detained for this reason, or that he escaped from being arrested. As I do not accept that the applicant was involved in political activities in the past in Iran, I am of the view that the chance that he would be involved in political activities in the future that would bring him to the adverse attention of the Iranian authorities is remote. I am not satisfied that the applicant has a well-founded fear of persecution for reasons of his political opinion.

13.  As I do not accept that the applicant was of any adverse interest to the Iranian authorities at the time of his departure from Iran, I do not accept that he left Iran illegally. I am of the view that the applicant left Iran legally, using a genuine Iranian passport, as he advised during his entry interview. I note the photocopied document provided by Dr Al Jabiri, which he claims is a copy of the Iraqi passport used by the applicant to leave Iran. However, Dr Al Jabiri has provided no explanation for how this particular document was obtained, or why it was not provided until a week after the Tribunal hearing. I note that neither at the hearing nor at any stage prior to the hearing did the applicant indicate that such a document existed, let alone that it would be provided to the Tribunal. There is independent evidence before me indicating that false Iraqi passports can be purchased in Iran. (See DFAT, CIR No.347/99, from DFAT Report 0235 CX37808 9 September 1999). In my view, it would not have been a difficult matter for such a passport to have been purchased since the applicant left Iran. In the circumstances, I cannot accept the document provided by Dr Al Jabiri as corroboration of the applicant's claim that he left Iran using a false Iraqi passport.

14.  Overall, I cannot be satisfied that the applicant has a well-founded fear of persecution for a Convention reason arising out of the manner of his departure from Iran. I accept that the applicant no longer has an Iranian passport because he disposed of it en route to Australia. However, I am of the view that the applicant could request the Iranian Embassy to issue him with a replacement travel document. There is no evidence before me to suggest that making such a request would give rise to a well-founded fear of persecution for a Convention reason.

15.  I have considered whether the applicant has a well-founded fear of persecution merely because he is an Arab Iranian. The applicant claims that Arab Iranians have no rights. However, I note that the applicant speaks, reads and writes Arabic. He stated that he has been able to read the Koran, as well as other books in Arabic obtained from friends and relatives. On his own evidence, there are two to three hours of Arabic language programs on television every day. The applicant's father farms the land which he owns. Income from the family farm supports the family, and is sufficient for the applicant's father to pay day labourers to work on the farm, as well as to have paid the applicant's university fees and expenses associated with him being in Australia. The applicant was able to gain entrance to and graduate from university. He was an officer during his military service. He obtained employment on completion of his military service. Overall, the applicant's evidence concerning himself and his family did not suggest that he had ever been disadvantaged because of his Arab ethnicity.

16.  The applicant initially claimed that there are no newspapers in Arabic. However, the independent evidence before me clearly indicates that the Iranian government press agency publishes a daily Arabic language newspaper, Al Vefagh. When this was put to the applicant he claimed that the newspaper was published in Tehran and could not be purchased in Ahwaz. Whether or not this newspaper can be purchased in Ahwaz, the fact that an Arabic language newspaper is published at all clearly indicates that the Iranian authorities acknowledge that there are Arabic speakers in Iran and is prepared to provide them with at least some information in their own language. Even if there were no Arabic language newspaper in Iran, I am not satisfied that the failure of a government to provide media in the language of a minority group within a particular country in itself amounts to persecution.

17.  I note the independent evidence before me (dated 1996) indicating that Arab activists in Iran allege that the government is trying to stamp out their culture. However, I have nor been able to locate any independent evidence indicating the specifics of this allegation, nor any evidence suggesting that this allegation is true. I accept that many Arabs in Iran live in economically deprived conditions. However, there is nothing in the evidence before me to suggest that this is true of the applicant or his family. Indeed, the applicant's evidence suggested that his family is relatively prosperous. Even if the applicant or his family were economically deprived, it would not follow that this would amount to persecution or that they had a well-founded fear of persecution for a Convention reason.

18.  The applicant claimed that he was involved in Arab cultural activities whilst he was at university. I accept that this is the case, although I do not accept that these activities had any political dimension. There is nothing in the independent evidence before me to suggest that engaging in Arab cultural activities would lead to persecution. In the circumstances, I am not satisfied that the applicant was ever detained or otherwise harmed because he engaged in Arab cultural activities. Overall, I cannot be satisfied that the applicant was persecuted in the past because of his Arab ethnicity or that he has a well-founded fear of persecution for this reason.

19.  The applicant did not claim to fear persecution because he applied for refugee status in Australia. However, for the sake of completeness, I have nevertheless considered whether he has a well-founded fear of persecution for this reason. The independent evidence before me, which I accept, does not suggest that the Iranian authorities would take an adverse interest in a person merely because the person applied for refugee status abroad. Accordingly, I am not satisfied that the applicant has a well-founded fear of persecution because he applied for refugee status in Australia.

CONCLUSION

20.  Having considered the evidence as a whole, I am not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. He therefore does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.”

grounds of the application

6                     The grounds of review were stated as follows:

“a)      There was no evidence or other material to justify the making of the decision that the applicant did not have a well-founded fear of persecution by reason of his political opinion, real or imputed if he returned to Iran within the reasonably foreseeable future.

 b)        The decision involved an error of law, being an error of law involving the incorrect interpretation of the applicable law of (sic) an incorrect application of the law to the facts as found by the Tribunal or both.”

my reasoning

7                     The applicant was not legally represented at the hearing before me today.  He made oral submissions to me.  He made eight submissions in his initial address and seven in reply some of which overlapped with his earlier submissions.  All of those submissions were, not surprisingly, of a factual nature and which related to the merits of the Tribunal’s decision.  They did not, in my opinion, raise any question of error of law or jurisdictional error on the Tribunal’s part.  In those circumstances I have scrutinised the papers and the Tribunal’s reasons to see whether there was reviewable error.

8                     In first parts of its reasons the Tribunal set out the relevant law correctly and, in my view, there is nothing later in its reasons to suggest that it did not apply the law as earlier recited.

9                     The essential basis for the Tribunal’s decision was simply that it did not believe the applicant.  This can be seen in the third, fourth, eighth, ninth, tenth, eleventh, twelfth, thirteenth and eighteenth paragraphs of its reasons set out above.

10                  In relation to the applicant’s claims based upon political activities and race, the Tribunal gave its reasons why it disbelieved the applicant.  Whether or not those were cogent reasons, is not a matter for this Court. 

11                  The Tribunal also disbelieved the applicant’s evidence that he left Iran illegally and, in my view, it was entitled to do so on the evidence before it.

12                  In terms of the grounds of review I am satisfied that there was ample evidence or other material to justify the making of the decision that the applicant did not have a well-founded fear of persecution by reason of his political opinion, real or imputed, if he returned to Iran within the reasonably foreseeable future.

13                  Neither the applicant’s submissions nor my examination of the papers have disclosed any error of law.

14                  In my opinion, the Tribunal’s conclusion that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention was open to it on the material before it.

15                  In my view, the Tribunal made no reviewable error whether error of law or jurisdictional error.

Conclusion

16                  As no jurisdictional error, error of law or any other reviewable error has been disclosed, the application will be dismissed with costs.

A/g Associate:

Dated:              5 December 2001