FEDERAL COURT OF AUSTRALIA

SBBF v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 767

Migration Act 1958 (Cth)

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

SBBF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 12 OF 2002

O’LOUGHLIN J

17 JUNE 2002

ADELAIDE

THE COURT ORDERS THAT:

1.         The Application be dismissed.

2.         The Applicant pay the Respondent’s costs, such costs to be taxed in default of agreement.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant, a citizen of Iran, arrived in Australia on 20 April 2001.  A few months later, he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (“the Department”) pursuant to the provisions of the Migration Act 1958 (Cth) (“the Act”).  His application was refused as was his subsequent application to the Refugee Review Tribunal (“the Tribunal”) for a review of the Department’s decision.  On 10 January 2002, the applicant filed his application to this Court for a review of the decision of the Tribunal.  As his application was made after 2 October 2001, it must be considered pursuant to the provisions of the Act as amended by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).  That amending legislation is effective as from 2 October 2001.

the evidence before the tribunal

2                     The applicant departed Iran on 5 December 2000 and arrived in Australia by a boat which had been given the code name “MAL071”.  He was interviewed on 11 May 2001 by an officer of the Department.  During that interview, he said that he had been born in 1977 in Aghajari in Khuzestan, Iran.  He belongs to the Bakhtiari ethnic group he speaks Farsi and some poor English.  The applicant’s father is a senior mechanical engineer; his mother is a housewife but was formerly a teacher.  The applicant, who is unmarried, has four siblings who, together with his parents, live in Iran.  He had progressed to university in his studies but he was expelled for being at a party where alcohol was consumed.  He explained that there had been an occasion when he stopped at a friend’s house; some girls were there and people were drinking alcohol.  The Basiji came and everyone at the party was arrested.  He was convicted and fined 50,000 tomans and was sentenced to seventy-five lashes.  It was his evidence that his father paid the fine and also a bribe so that he “would be lashed softer”.  It was that party and that event which led to his expulsion from the university.

3                     The applicant claimed that he left Iran because of an altercation with an officer during his military service.  He claimed that his departure from Iran was illegal as he left Iran on a false Iraqi passport.  Although it was not spelt out in detail in the Tribunal’s reasons it would appear that the military officer had made a homosexual advance towards the applicant.

4                     According to the applicant, his father made inquiries and found out that the officer had been hospitalised as a result of the altercation and that there were charges out against the applicant for “trying to kill the colonel”.  The applicant said that he feared to return to Iran because he had been accused of taking the colonel’s gun, taking the colonel’s car and trying to kill the colonel.  This, so he said, has led him to fear persecution on the basis that the authorities believe him to be cooperating with an anti-revolutionary group.  He fears that he will be given an unfair trial and be sentenced to death.

the findings of the tribunal

5                     The Tribunal accepted that part of the applicant’s claim in which he said that, as a result of his altercation with the colonel, he went into hiding and subsequently left the country.  The Tribunal also accepted that, consequential upon him leaving the country, the applicant’s father was questioned over the incident and about the applicant’s whereabouts.

6                     The applicant, who was unrepresented, complained that the Tribunal had misunderstood his case; he said that his “problem” was with the Sepah (the Revolutionary Guard) whereas the Tribunal had referred to him being in trouble with the army.  That complaint was not accurate.  In its reasons, the Tribunal, on more than one occasion, referred to the Sepah or the Revolutionary Guard.  Relevant extracts from the Tribunal’s reasons are sufficient to make good that point:

“At hearing before the Tribunal the applicant claimed that ‘the most important problem I have is with a high ranking military person … he is in the Guards of the revolution who are under the control of the supreme leader of the country – they have absolute power’.

…

He said ‘the incident which occurred to me wasn’t with an ordinary person but is with a colonel of the Sepah’.”

Elsewhere in its reasons, the Tribunal referred to the colonel and the army but it was, in my opinion, quite clear that the reference to “the army” was used by the Tribunal as an interchangeable term for the Sepah.

7                     An attempt was made to explain to the applicant that, for him to gain refugee status, any difficulties that he might face upon his return to Iran had to give rise to a fear of persecution for a convention reason.  Each of the five convention reasons was explained to him and he was invited to identify, which, if any, of them applied to his circumstances.  It seemed to me that his response was to the effect that he had been falsely accused of stealing military equipment to assist the anti-revolutionary forces.  That could amount to an imputed political reason.  The difficulty that the applicant faced, however, was that the Tribunal did not accept that passage of his evidence.  On this subject the Tribunal said:

“I do not accept as true however that the army has alleged or claimed that the applicant was involved with anti-revolutionary groups, that he stole a pistol or stole other equipment.  I do not accept this as it makes no sense that the army would need to do this, when the applicant is being wanted on such a serious charge already.  Even if these additional charges were being held against him it is apparent to me that the motivation of the army in seeking the applicant is to make inquiries over the incident, and to charge him if it is found that he has indeed assaulted a superior officer.  If they are lied to or misled by the colonel as to what happened, this does not change their motivation.  It is also apparent that the motivation of the colonel in lying about what happened has nothing to do with the Convention definition.  His motivation is to keep the applicant quiet about the claim that he has making sexual advances.  It is also likely that he is seeking revenge for being run over.”

8                     Ultimately, the Tribunal came to the conclusion that it is reasonable to believe that the applicant would be arrested if he were to return to Iran and, although the Tribunal did not know what the punishment might be, it was prepared to accept that it could be severe.  However, as the Tribunal correctly point out:

“The motivation of the army is investigation of a serious incident which would be viewed by them as being criminal, and the motivation of the colonel is revenge and to hide his harassment.  I find that the motivation of those who seek to harm or punish the applicant is not Convention related.”

9                     In my opinion the Tribunal arrived at the correct decision.  The applicant has been unable to point to any reason which would justify this Court’s intervention.  The bona fides of the Tribunal and its decision were not attacked and nothing that resembles jurisdictional error is apparent.  The fears that the applicant might truly hold may be described as fears of persecution but they cannot be described as fears of persecution for a convention reason.  Accordingly this appeal must be dismissed with costs.

Associate:

Dated:              17 June 2002