FEDERAL COURT OF AUSTRALIA

Kianfar v Minister for Immigration and Multicultural Affairs [2001] FCA 1754

MIGRATION – application for protection visa – Tribunal made credibility findings in favour of applicant – found that applicant had used satellite dish to videotape political programmes from a television station in USA and also a Mujehadin programme broadcast from the United Kingdom – Tribunal accepted that applicant had made copies of the tape and distributed those copies to friends and family members – Tribunal also accepted that applicant had been arrested, detained for 22 days and physically mistreated, that he was released on condition that he report fortnightly to the authorities and because his maternal uncle had provided his title deeds as surety –Tribunal accepted that applicant had left Iran illegally, using a false Iraqi passport – Tribunal, when deciding that applicant would not be at risk of persecution for imputed political opinion, focused on the American-sourced content of the tape to the exclusion of any consideration of the significance of the Mujehadin content sourced from England – whether Tribunal had ignored relevant material in a way that affected the exercise of the power and thus fell into jurisdictional error – decision set aside.

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 applied.

RAMIN KIANFAR v MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

W 322 of 2001

CARR J

10 DECEMBER 2001

PERTH

THE COURT ORDERS THAT:

1.         The decision of the Refugee Review Tribunal, made on 29 June 2001, affirming the decision not to grant the applicant a protection visa, be set aside.

2.         The matter be remitted to the Refugee Review Tribunal for decision according to law provided that such remitter will not take effect until the question of the constitution of the Tribunal is decided in accordance with the procedure referred to below.

3.         (a)        The question whether the Court should make a direction that the matter be remitted to the member of the Refugee Review Tribunal who made the above-mentioned decision is reserved.

            (b)        The applicant may within 35 days file and serve written submissions on the question referred to in paragraph 3(a).

            (c)        The respondent may within 10 days of service of those submissions file and serve any written submissions in response; and

            (d)        The question referred to in paragraph 3(a) will be decided on the papers so filed, without further hearing.

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 29 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 27 December 2000.  On 19 January 2001 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (“the Act”).  On 20 March 2001 a delegate of the respondent refused to grant a protection visa and on 21 March 2001 the applicant applied for review of that decision.

the applicant’s claims and the Tribunal’s decision

2                     The applicant’s claims, in summary, were as follows:

·          He installed a satellite television reception dish in the courtyard of his home in Ahvaz.  Satellite dishes are illegal in Iran. 

·          From about February 2000 he began receiving broadcasts from an American television station, NITV, which broadcasts in Farsi.  Programmes broadcast by NITV included material critical of the Iran government by Iranians in exile, and commentary on events within Iran which were contrary to the versions provided by the Iranian authority.

·          In April and May 2000 the applicant began to videotape some programmes broadcast by NITV, and also taped a programme on another station broadcast by the Mujehadin operating in Iraq which was also critical of the Iranian government, which contradicted the Iranian government’s version of events within Iran and parodied the present Supreme Leader Khamenei and former President Rafsanjani (my reason for this emphasis will appear below).  He recorded all these programmes on one tape, made about 20 copies and distributed the copies to members of his family and to friends.

·          About one month after recording the programmes and making the copies, he had a gathering at his house one night and viewed the tape with some friends.

·          Also at about this time a neighbour reported to the police that he had a satellite dish in his garden.

·          The police came to the applicant’s home the day after the social gathering, when the applicant was at work and only his mother and sister were at home, and confiscated the satellite dish.  The police also found the tape which the applicant had recorded, which he and his friends had watched the night before and had not been put away.  The police confiscated this tape and, when they realised its contents, referred the matter to the security forces.

·          The next day three men not in uniform arrested the applicant at his workplace.  He was blindfolded and taken into the security force’s building and detained for a period of a total of 22 days during which he was interrogated and physically mistreated including by being repeatedly forced to stand in an empty swimming pool with a sheet of metal over his head during the hottest part of the day.  He was given only left-over food and luke warm water.

·          He had a kidney problem and, as a result of the inadequate water which he was given and constant physical mistreatment, his illness worsened, causing him to urinate blood.  His captors, unaware of his kidney problem, thought that their mistreatment was the sole cause of the problem, and that he needed medical treatment.

·          On the security of the provision by his maternal uncle of the deeds of his house, the security forces released the applicant from detention on condition that he reported to them every fortnight.  He was forbidden to leave the city and was warned that if they found any copies of the tapes which he had recorded they would re-arrest him. 

·          When he returned to his workplace after his release he found that he had been sacked and his place had been filled.

·          The applicant reported to the security forces in accordance with the conditions of his release, for five fortnights.  He was in constant fear that a copy of the tape which he had recorded would be found and that he would be re-arrested on serious charges. 

·          On the advice of his family he decided to leave Iran and found a smuggler who arranged for a fake Iraqi passport on which the applicant left Iran.

·          Since his arrival in Australia, he has spoken by telephone to his sister in Iran from whom he has learned that five or six days after his departure from Iran, the security forces went to his house.  When they realised that the applicant “was gone”, they arrested his father and brother.  His father was released after fifteen days due to his heart condition, but his brother remains in detention.

·          The Iranian authorities have also arrested two of his friends and confiscated from them a copy of the tape recorded by the applicant. 

·          The applicant’s maternal uncle, who provided the security for his release from detention, is also being harassed by the authorities who continue to inquire about the applicant.

·          When travelling from Malaysia to Indonesia he had used his real Iranian passport.  He paid a second smuggler another $2,000 for the boat trip to Australia and also gave that smuggler his Iranian passport. 

3                     Rather than attempt to summarise the Tribunal’s findings and reasons, I set them out below in full:

‘FINDINGS AND REASONS 

64. I am not satisfied that the applicant has a well-founded fear of persecution for a Convention if he returns to Iran. I give my findings and reasons below, but in summary I do not accept that the activity in which the applicant was involved prior to his departure from Iran is of such a nature that he would be imputed with a political opinion in opposition to the government or that he would suffer harm amounting to persecution for this reason.

65. I accept that the applicant is an Iranian citizen. There is no evidence before me that the applicant may be of a different nationality, his only language is Farsi and he exhibited sufficient familiarity with the geography, history and politics of Iran to satisfy me that he is Iranian. Accordingly, the country of reference for the applicant's claims is Iran.

66. I accept that the applicant made a video tape of certain programmes broadcast by satellite by NI-TV and of one programme broadcast by a Mujehadin station located in Britain. I accept that the applicant saw, and recorded, these programmes because he owned a satellite dish which he kept in his backyard. I accept that the applicant made copies of that tape which he gave to friends and relatives whom he thought would be interested in the contents of the tape. I accept that the tape was a recording of several interviews with exiled journalist Nourizadeh which provided commentary on controversies in Iranian politics and particularly in relation to allegations of illegal acts by certain high profile conservative political figures, together with a programme which parodied the present Supreme Leader Khamenei and former President Rafsanjani.

67. I accept that the applicant's satellite dish was confiscated by the police in late July 2000, at which time the applicant's tape of these programmes was also discovered and confiscated. I accept that the applicant was arrested the following day by security officials, that he was detained and questioned about the tape, and that he was physically mistreated during this questioning. I accept that the applicant was detained for 22 days in this investigation. I accept that he was released on condition that he report fortnightly to the authorities and because his maternal uncle provided his title deeds as surety. I accept that he was fined 200,000 tomans for possession of a banned satellite dish.

68. I do not accept that the applicant had to pay 100,000 tomans to avoid receiving 100 lashes for this offence. I prefer the independent information that possession of a satellite dish does not attract such a penalty, that at worse the penalty is a heavy fine and at best, for a first offence, can be as little as a lecture from the Quran.

69. I accept that the human rights record in Iran is poor, although there are signs that the re- election of President Khatami will lead to an improvement in both this aspect and in the freedom of political expression. I accept that mistreatment occurs in detention and indeed this is the area from which most criticisms of the Iranian government's human rights record emanate. Accordingly, as I have set out above, I accept the applicant's claim that he was physically mistreated while detained for possession of a satellite dish and for investigation about the tape.

70. However, I do not accept that the security authorities in Iran suspect the applicant to be part of an organised opposition group, nor that the authorities have imputed to him a political opinion in opposition to the government. The applicant had never been involved in any political activities. The taping, copying and distribution to friends and family of a number of news programmes broadcast by satellite by a television station which is fundamentally an entertainment station with no agenda in opposition to the government, which were widely watched, inside Iran by "hundreds of thousands" every night in Tehran alone, is not, in my opinion, sufficient for the authorities to suspect that the applicant was a political opponent.

71. The independent information as it relates to the applicant's claims states that it is not possible to be definitive in assessing who may be imputed with an adverse political profile. The applicant was responsible for copying broadcast material which, although widely watched within Iran, was critical of aspects of the government. That material was political, in the sense that it commented on events and prominent members of the government in Iran's recent history. The applicant obtained the material by using a banned satellite dish, even though there are, however estimated, at least a few million satellite dishes in Iran. The applicant made a number of copies of this material and distributed it, even though the people to whom he gave copies were friends and family and were also not part of any organised political opposition.

72. The applicant is clearly not someone with a close involvement or continuing association with anti-regime activists. He is not a dissident journalist or scholar, a public or otherwise prominent critic of the government, nor a leader or organiser of civil unrest or public criticism. After his activity in viewing, recording and distributing the material was discovered, and quite by chance in that it was the presence of his satellite dish which attracted the police's attention; he was penalised by a fine and released, in effect on his own surety and with reporting conditions which were not overly strict. The independent information set out above states that minor acts of political discontent and even isolated acts of political disobedience are insufficient to lead to the imputation of a political profile which would attract the adverse attention of the Iranian authorities.

73. Having considered all the circumstances of the applicant's arrest and release, together with the nature of the broadcast which he recorded and distributed, the people to whom he distributed copies, the apparently very wide dissemination of this satellite station within Iran, the lack of vigour in the government's enforcement of the satellite dish ban or to disrupt NITV's signal, I am not satisfied that the Iranian authorities suspect the applicant of an anti-government political opinion, or of being a part of organised opposition to the government, such that he would be at risk of persecution for his political opinion or an imputed political opinion if he were to return to Iran.

74. Given that I am not satisfied that the authorities have imputed the applicant with an anti-government political opinion or that the authorities would persecute him for such an imputed political opinion, I do not accept that the applicant was dismissed from his employment for this reason, as a result of the security officials pressuring his employer. However, I accept that it is possible that once his employer discovered the reason for the applicant's 22 day absence from work, namely that he was being held in detention, he was dismissed for his job. Even if this is the case, and even if it could be described as Convention-related persecution, which I do not accept, the applicant has previously been self-employed and is not, by reason of this dismissal, prevented from earning a living to support himself.

75. I accept that the applicant left Iran illegally, using a false Iraqi passport obtained from a smuggler. The applicant was leaving Iran in circumstances where he had been released on reporting conditions and for that reason I accept that the applicant would not have been permitted to leave Iran on his own passport. I do not accept that the applicant was suspected of being part of an organised opposition group and that he would have been prevented from leaving Iran for this reason.

76. I accept that the applicant's maternal uncle has not received back from the authorities the title deeds which he deposited as surety for the applicant's release. I do not accept that this failure is referable to any imputed political opinion of the applicant. I am satisfied that the non-return of the surety follows from the applicant's failure to abide by his reporting conditions.

77. I accept that the applicant's father and brother have been questioned by the authorities and may have been detained for a short period for this purpose. I do not accept that the applicant's brother remains in detention as a suspected accomplice of the applicant in anti-government activities. Given my conclusions above, that the applicant's activities were not sufficient to lead to an imputation that the applicant is anti-government, I do not accept that his brother would be so suspected. I am satisfied that any detention of the applicant's brother was connected to the applicant's failure to abide by his reporting conditions. To the extent that the applicant has claimed otherwise, I am satisfied that the applicant has exaggerated the length of his brother's and his father's detention and to have fabricated the alleged reason for that detention in an effort to enhance his protection visa application. I note also in this regard that the applicant claimed before me to have first known about the arrest of his father, brother and two friends on 26 January 2001 when he telephoned his sister, and I do not accept that the applicant would have delayed over five months to make such a crucial claim.

78.  I accept that two of the applicant's friends were detained. I do not accept the applicant's claim that both were considered accomplices of the applicant because I have rejected the applicant's claim that he is suspected of organised anti-government activity. The applicant claims that one of these friends, the one who did not have a copy of the tape, was released, which reinforces my finding that the authorities do not suspect there to be an organised group of anti- government opposition headed by the applicant. I do not accept that the second friend detained, the one with a copy of the tape, remains in detention, for the same reasons as I have given above in relation to the applicant's claim that his brother is viewed as an accomplice and remains in detention: Further, the fact that even on the applicant's evidence only one copy of the tape has been found by the police since the copies were first made, in April and May 2000, suggests that the authorities have no particular interest in uncovering the other 19 copies which the applicant claims to have made.

79. I rely on the independent information to find that the applicant does not have a well- founded fear of Convention-related persecution by reason of his illegal departure from Iran or his unsuccessful application for asylum. It is likely that the applicant will be questioned on his return but I am satisfied that any official interest in him will be because of his failure to abide by the reporting conditions imposed and not because the authorities suspect him of a political opinion or political activities sufficiently serious as to attract persecution.

80. In summary, I am not satisfied that he applicant has a well founded fear of persecution by reason of his political opinion or an imputed political opinion if he were to return to Iran.

CONCLUSION

81. 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. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.

grounds of the application

4                     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 fears (sic) 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

5                     The applicant was not legally represented at the hearing before me today. 

6                     In those circumstances I have scrutinised the papers and the Tribunal’s reasons to see whether there was reviewable error.

7                     In my opinion, there was such reviewable error.

8                     It can be seen from the Tribunal’s reasons that the Tribunal accepted virtually all of the applicant’s core claims and, in particular, his detention and questioning in relation to the tape for a period of 22 days during which he was physically mistreated. 

9                     The Tribunal accepted that the applicant had made a videotape of two types of programmes.  These were, first, certain programmes broadcast by satellite by NITV.  Secondly, and more importantly, the applicant recorded a programme broadcast by a Mujehadin station which, so the Tribunal found, was located in Britain.  It is quite clear that there were two sets of programmes – see paragraph numbered 66 of the Tribunal’s findings and reasons. 

10                  It is well known that the Mujehadin is an externally-based group in opposition to the current Iranian government which engages in sporadic violence and which consequently is of most particular interest to the Iranian security authorities.  It is notorious that, to the Iranian security police, the Mujehadin are regarded as constituting a serious threat to the current Iranian regime.  Anything to do with the Mujehadin is regarded extremely seriously, in particular distribution of material emanating from the Mujehadin.

11                  In deciding that the authorities had not imputed to the applicant a political opinion in opposition to the government, the Tribunal can be seen to have focused exclusively on the NITV programme – see paragraph 70 of its reasons where it refers to a television station in the singular.  It described that television station as one which was fundamentally an entertainment station with no agenda in opposition to the government and which was widely watched inside Iran by hundreds of thousands of people every night in Teheran alone.  The same very narrow focus can be seen in paragraph 73 where the reference is exclusively to NITV.  In these critical paragraphs where the Tribunal assessed whether the applicant had been imputed with a political opinion, there is absolutely no reference to the Mujehadin programme, although there was a finding that the applicant had taped a programme broadcast by a Mujehadin station.  As I have mentioned, the Tribunal found (at paragraph 66) that that station was located in Britain.  

12                  It can be quite clearly seen from the Tribunal’s reasons that when it came to decide whether the Iranian authorities might impute a political opinion to him, it completely ignored the Mujehadin material from the British television station.  In those circumstances, in my view, it ignored relevant material and misdirected itself in such a way as to have affected the exercise of its powers and thus fell into jurisdictional error – see Minister for Immigration and Multicultural Affairs v Yusuf [2001] FCA 30 at [82] to [84].  As explained in the joint judgment of McHugh, Gummow and Hayne JJ in Yusuf at [83] the Tribunal thus “did not have jurisdiction” to make the decision it made and its decision “was not authorised” by the Act – see s 476(1)(b) and (c) of the Act.

CONCLUSION

13                  For the foregoing reasons the Tribunal’s decision will be set aside.  The next issue is whether the matter should be remitted to the Tribunal comprising the same member who made this decision, or whether it should be remitted to a Tribunal differently constituted.

14                  The applicant has the advantage of several important findings of fact in his favour.  If the Tribunal had given consideration to the second source of the materials on the tape, it might well have attributed the relatively harsh treatment meted out to the applicant (22 days in detention and physical torture) followed by strict reporting conditions, to the applicant’s role in distributing the Mujehadin television content.  Given the observations made by the Tribunal in the first sentence of paragraph 71 of its reasons, it may well be that, on reconsideration, it will give the applicant the benefit of any doubt which it might have on that point.  

15                  In two similar, but not identical, circumstances Full Courts of this Court have, on remitting the matters to the Refugee Review Tribunal, directed that the Tribunal be as previously constituted: Wang v Minister for Immigration and Multicultural Affairs [2001] FCA 448 and Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332.

16                  I sought the views of the parties as to which course the Court should take in this matter. 

17                  The respondent took a neutral stance.  The applicant was uncertain about the question.  In those circumstances I decided that the question (i.e. whether there should be a direction that the matter be remitted to the member of the Refugee Review Tribunal who made the decision) should be reserved and that I would make a referral under Order 80 of the Federal Court Rules in the hope that a legal practitioner might be found who would assist the applicant with some legal advice and draw some short submissions on that point.

A/g Associate:

Dated:              10 December 2001