Applicant A v Minister for Immigration & Multicultural Affairs

GROUNDS OF THE application 5 The applicant filed his application in person. The grounds stated in that document were as follows: "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. The decision involved an error of law being an error of law involving the incorrect interpretation the applicable law of (sic) an incorrect application of the law to the facts as found by the Tribunal or both." 6 In his application the applicant claims costs, such further or other orders as the Court sees fit and interlocutory relief restraining the respondent from causing or permitting his removal from Australia. The application was treated as if it had included an application for an order setting aside the Tribunal's decision. 7 As the applicant was unrepresented, I have scrutinised the Tribunal's reasons to see whether they disclose any reviewable error including any jurisdictional error. I have also listened to oral submissions made by the applicant. 8 The applicant complained that during the hearing of his application before the Tribunal, the member of the Tribunal ignored him completely, started drawing on a piece of paper and did not bother to listen to him. He said that it looked as though the Tribunal had made up its mind about its decision without listening. 9 In my view, the Tribunal's reasons, in themselves, show that it did pay attention to what the applicant said to it including his claim that his father had been taken away by Iranian authorities and he did not know what had happened to him (see paragraph numbered 6 of the Tribunal's reasons). 10 At the hearing on 1 August 2001 the applicant produced a letter which he said was from his mother in Iran. I shall refer to that letter as "the Letter". The Letter was in the Farsi language. The envelope in which it was contained was sent by registered post from Teheran and was postmarked on the front and the back with the date 18 June 2001. 11 The applicant sought to tender the Letter as proof that his father had vanished. 12 The hearing was adjourned so that the letter could be translated into English. I also referred the applicant for legal assistance under Order 80 of the Federal Court Rules. The legal assistance was to review the reasons for decision of the Refugee Review Tribunal and a translation of the Letter, and to provide legal advice (whether oral or written). Subject to that advice being to the effect that the applicant had a reasonably arguable case, the reference extended to legal assistance in the form of amendment of documents filed in Court, preparation of any appropriate documents and representation at the resumed hearing of the application. 13 A legal practitioner accepted the reference, but subsequently found that there was a conflict of interest. The District Registrar has not been able to find a substitute lawyer to assist the applicant. 14 At the resumed hearing on 30 October 2001 the respondent raised no objection to the Letter being received into evidence in the application. I decided to approach the matter on the basis that the applicant was putting forward, as part of his first abovementioned ground, a submission that the Tribunal based its decision on the existence of particular facts, and that those facts did not exist i.e. in reliance upon s 476(4)(b) of the Migration Act 1968 (Cth) ("the Act"). The particular facts were that the applicant's father had been harassed since the applicant left Iran and had, after being taken away by the Iranian authorities, disappeared. 15 As was recently pointed out in the Full Court decision of Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332 at [81]: "An applicant seeking to establish a ground of review based on s 476(1)(g) read with s 476(4)(b) must: (a) identify a "particular fact" on which the decision being challenged was based; (b) establish, by admissible evidence, that the particular fact did not exist; and (c) show that, on the evidence before the decision-maker, it was not open to him or her to find that the particular fact did exist." 16 I do not think that it has been finally settled, on the authorities, that the non-existence of a particular circumstance amounts to "a particular fact" for the purposes of s 476(4)(b) of the Act. However, I shall assume, without deciding, that it can be. In terms of the circumstances of this particular case, the particular facts are that the applicant's father has not been harassed since the applicant left Iran and has not, after being taken away by the Iranian authorities, disappeared. If those facts constituted "particular facts", I think that, in this case, they are to be regarded as being critical to the Tribunal's decision in the sense referred to in cases such as Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 and Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744. In other words, I think that the Tribunal's findings that the applicant's father had not been harassed since the applicant left Iran and that he had not, after being taken away by the Iranian authorities, disappeared played such a part in the process of its reasoning that, had it found otherwise, the Tribunal would not have reached the conclusion which it did. I now turn to the Letter. 17 The immediately relevant parts of the Letter read as follows: "… since your departure from Iran our problems have increased a lot because the Intelligence and Security Forces came a few times and asked for you. As they could not find you, they took your father with themselves. No matter how much I cried and asked them "where are you taking my husband?" they did not pay any attention to me. After they heard my loud screams, one of them, who I think was their supervisor, said that we interrogate him and then will bring him back. But that dirty Pasdar was lying, and up to now, that I'm writing this letter, unfortunately I have had no news of your father. Your two sisters and I are only praying to God and asking Him to keep you and your father safe. . . . [Applicant's name] dear, from where you are pray for your father's health, because he is trapped by Islamic Republic because of you. . . . I am writing this letter to advise you not to return to Iran under any circumstance, because Islamic republic has no mercy." 18 The next question is whether the Letter establishes, on a balance of probabilities, that in fact the applicant's father was harassed since the applicant left Iran and that, after being taken away by Iranian authorities, has disappeared. 19 In my view, it does not do so because it conflicts in a material respect with the applicant's own evidence. 20 The applicant's evidence before the Tribunal was that his mother had told him that his father had been taken away. He said that she had told him this before his interview with the respondent's delegate. That interview took place on 12 January 2001. The applicant told the Tribunal that he did not tell his lawyer (whom he had consulted some three weeks before the hearing) about the fact that his father had been taken away, because he did not trust the lawyer. The hearing took place before the Tribunal on 2 April 2001. The applicant's lawyers' written submissions to the Tribunal were dated 28 March 2001, so it is reasonable to infer (and I do infer) that the applicant gave instructions to those lawyers at some time in March 2001 at a time when he was aware (on his case) that his father had been taken away by the Iranian authorities. 21 The application to this Court was filed on 9 May 2001. 22 The problem which I have with the Letter, noting that it was sent by registered post on 18 June 2001, is that it purports to break the news to the applicant (i.e. for the first time), of the arrest of his father. It starts with the following passage [I have deleted any reference to the applicant's name]: "Greetings to our dear and lovable son, [ ]. I hope that you are well and have no worries. My dear [ ], this is the first letter that I am writing to you and I want to tell you a very important matter. [ ], I hope that you don't get upset about an issue that I am about to tell you and listen with patience and tolerance." 23 There then follow the passages which I have set out above. 24 The fact that the Letter was sent by registered post a few weeks after the applicant had lodged his application in this Court is not, in my view, a co-incidence. On the face of the Letter, it appears that the applicant's mother had not written to him during the seven months since he had left Iran. Apart from a photograph of four young people (two of whom appear to be the applicant's sisters with a notation referring to New Year 1380 (Persian calendar) Tehran "presented to brother [ ]", there is no family news in the Letter. Its central subject matter was the arrest of the applicant's father and advice to the applicant not to return to Iran. 25 I think that a reasonable inference is that the applicant asked his mother to provide something in writing to the effect that his father had been arrested. I make that inference. However, the applicant's mother appears not to have been aware that the applicant had told the Tribunal that she had already told him, as early as before 12 January 2001, about the arrest of his father. If that were true, then she would not have been likely to use the language set out at paragraph 22 above. I do not think that I can safely rely on the contents of the Letter being true. 26 In my opinion, the Letter does not establish that the particular facts referred to above did not exist. 27 Finally, in terms of the matters which an applicant has to establish, I turn to the question whether, on the evidence before the Tribunal, it was not open to the Tribunal to find that the particular facts did exist. 28 I think that it was open to the Tribunal so to find. It was entitled to take into account, (and did so), the facts that the applicant's father was a Colonel in the Iranian Police and had successfully intervened on his behalf when he was detained. It was also entitled to take into account, as again it did, the lack of any action against the applicant while he remained in Iran for a further period of some eighteen months after his release without being harassed. [At the resumed hearing on 30 October 2001 the respondent sought to explain this on the basis that during that 18 month period he had co-operated with the government authorities and, under duress had given them information. In my view, this was an invitation to descend to the merits of the Tribunal's reasoning, which, of course, this Court cannot do.] The Tribunal noted that the applicant had left Iran legally, using his own passport. Then there was the fact that the applicant had ample opportunity to bring this matter to the attention of his lawyers, but had not done so. All of these circumstances (except the circumstances of the applicant's departure from Iran) form part of the circumstances specifically recited in paragraph numbered 6 of its reasons as giving rise to the Tribunal's satisfaction that the alleged disappearance of the applicant's father was not mentioned in his submissions because he had not disappeared. 29 I do not think that the "no evidence" ground has been made out. The Tribunal can be seen to have reached its decision on credibility grounds and, in my opinion, it was entitled to do so on the basis of the various matters to which it referred. 30 During the course of his oral submissions at the resumed hearing of this matter, the applicant covered some of the same ground as he had on 1 August 2001. Apart from the complaint about the Tribunal not paying attention, to which I have referred above, most of the applicant's oral address on the second occasion went to matters relating to the merits of the Tribunal's decision. For example, the applicant referred to the reliance which the Tribunal had placed on the fact that he had been able to leave Iran legally as showing that the Iranian authorities had no interest in him. He said that he had never claimed that he had been on a blacklist and in any event many people with "lots of problems" left through the airport at Teheran without being detected. These matters, as I tried to explain to the applicant, were not for this Court. There were other factual matters which the applicant raised. I need only to refer briefly to two of them. 31 The applicant told me that he had "embraced Christianity". He did not say when that had taken place, but it appeared to have been something which had occurred since the hearing before the Tribunal. The applicant said that his former room-mate (at Curtin Detention Centre), with whom he did not get on well, had returned to Iran and had informed his family of the applicant's change of religion. That, so he submitted, would make his life more dangerous than it ever was. These matters did not form, and in all probability (depending upon when these events are said to have occurred) could not have formed the subject of the applicant's claims before the Tribunal. They raise no ground for review in this Court. 32 Finally, the applicant stated that his former room-mate had stolen all his documents and taken them back to Iran "about 20 days ago" and now everything would be known to the Iranian authorities who would arrest immediately upon return to Iran. 33 Once again, this matter, being one which, on the applicant's case, has arisen since the Tribunal's decision, is not something which is reviewable by this Court. 34 In relation to ground 2 there is nothing which I could detect in the Tribunal's reasons to indicate that its decision involved any error of law. A fair reading of those paragraphs of its reasons where it reviewed the relevant authorities in relation to assessment of refugee claims and set out its understanding of the relevant law, shows that it correctly understood the legal principles involved. There is nothing later in its reasons to suggest that it did not apply the relevant law to the facts as found by it. 35 Nor has my examination of the Tribunal's reasons disclose any jurisdictional error, error of law or any other reviewable error. The Tribunal, in my view, understood the relevant law and the matters upon which it had to be satisfied. 36 As I have mentioned, the Tribunal rejected the applicant's claims essentially because it did not believe him.

Conclusion 37 The applicant will be dismissed with costs.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

A/g Associate: Dated: 1 November 2001 The Applicant appeared in person:

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 1 August 2001, 30 October 2001