Karami v Minister for Immigration and Multicultural Affairs

WILCOX J: 1 This is an application by Ali Reza Ali Karami for review of a decision of the Refugee Review Tribunal. The Tribunal decided to affirm a decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs, not to grant to Mr Karami a protection visa. 2 The applicant has been represented today by Mr Martin Cuerden of counsel on a pro bono basis. I express to him the appreciation of the Court for his taking the case and the submission he has put. Unhappily, from his point of view, I am unable to accede to the submission, but that does not reduce the importance of assistance in these matters by counsel. It is a considerable comfort to the Court, in deciding these difficult cases, to have the decision of the Tribunal scrutinised by counsel, looking at the matter from the point of view of an applicant. This is particularly the case where the applicant has no knowledge of Australian law and is unable to speak or read English. 3 The matter raised by Mr Cuerden falls within a fairly short compass. In order to indicate its nature, it is necessary to briefly state the basis upon which the applicant put his case before the Tribunal. 4 In 1999 the applicant was a student at a university in Teheran. There were demonstrations, in July 1999, by students dedicated to government reform who believed that President Khatami had failed to keep his promises for reform. Apparently these demonstrations occurred over a number of days. At first they were peaceful, but in the concluding stages there was violence. 5 The applicant gave evidence that he attended the demonstration on 9 July. He was in the company of a friend whom he identified as "Golami". Some 10 to 15 thousand people marched in the demonstration. As they marched, the applicant saw a man whom he knew to be a Baseji driving a car. The Baseji guarded the mosque on the street in which the applicant lived. According to the applicant, there had been an incident in 1998 when the Baseji had caused a group of men to raid a mixed-sex party, take the participants to the basement of the mosque and administer lashings to them. The applicant claimed that, during the march, he saw the Baseji park his car across the road. He commented to Golami about the Baseji. Golami then picked up a rock and threw it at the Baseji's car, smashing a window. The Baseji and his assistant commenced to chase them. They caught Golami but the applicant escaped by jumping some fences and hiding. 6 The applicant said that, on the following day, there was a further demonstration which he observed from a distance; and again on 11 July. Shortly afterwards, the applicant left Teheran and went to northern Iran, where he stayed for some weeks. Thereafter, he left Iran, with the assistance of a smuggler, and went to Pakistan. However, he was unable to continue with his journey from Pakistan. He came back to Iran and eventually left Iran out of Teheran Airport. He made his way to Australia and claimed refugee status. 7 At the hearing before the Tribunal, the applicant indicated his dissatisfaction with the current Iranian regime. The Tribunal accepted that he attended demonstrations in July 1999. The Tribunal also accepted that he had a number of friends, some of whom went with him to the demonstrations; although the Tribunal thought the students could not be described as a specific political grouping. The Tribunal also accepted that Golami was apprehended for throwing a rock at the Baseji's car. 8 The Tribunal accepted the possibility that the applicant attended demonstrations on the following two days but noted that, even on his own account, he did not stay long on these occasions. 9 The result is that the Tribunal, in effect, accepted the applicant's statements as to the events in July 1999, either expressly adopting them or being prepared to assume them for the purposes of the review. However, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution on the basis of political opinion, if he was returned to Iran. 10 One reason for this position was that the Tribunal had information, supplied by the Department of Foreign Affairs and Trade, concerning the treatment of people who were arrested at the July demonstrations. According to this information, on 12 September 2000 the Teheran Revolutionary Court stated that, out of 1500 individuals arrested during the unrest, 500 had been released immediately after questioning and 800 were later released on bail. The remaining 200 were subject to further investigation and remained in detention. 11 During the course of the report, DFAT indicated a view that there was little or no risk to people whom it described as "minor participants". The complaint made by Mr Cuerden, on behalf of Mr Karami, is that the Tribunal did not ask itself whether it was correct to describe Mr Karami as a minor participant in the demonstration. Mr Cuerden said that, in order to apply the DFAT report, the Tribunal first had to determine whether Mr Karami was a minor participant; and, if so, whether he was a minor participant in respect of whom there was a risk of detention. He argued that, if 1,500 people out of some 10,000 or 15,000 people were arrested, they would not have all been leaders; many of these people would properly be regarded as minor participants, yet they were arrested. 12 There are at least two difficulties about this approach. In the first place, if 1,500 people were arrested but 500 were immediately released and a further 800 released on bail, this seems to leave only 200 people about whom it might be said there was such treatment as might amount to persecution. More importantly, perhaps, there is no magic in the term "minor participant". This happens to be a term used in the DFAT cable, but the real question is the degree of risk suffered by the applicant. The Tribunal went directly to this matter. In its reasons for decision, after referring to the information in the DFAT cable, the Tribunal said this: "The applicant was not detained during the demonstration. His account does not indicate he was a leader or organiser and the Tribunal finds that he was neither of these. In such circumstances the Tribunal is not satisfied that the authorities learnt of the applicants participation or that they have any interest in him. His behaviour in going to Pakistan and then returning to finally depart through Teheran's airport is consistent with him not being of interest to the authorities. In the Tribunal's view, had the applicant really considered he was wanted by the authorities he would not have placed himself at risk by returning to Iran once he had reached Pakistan. In the Tribunal's view, if he thought himself at risk he would have made other arrangements to reach a Western country other than returning to Iran." 13 There are some other matters referred to in the Tribunal's finding, none of which has been challenged by Mr Cuerden. The extract I have quoted is the critical passage. It seems to me that it addresses the salient question; namely, what is the risk of the applicant being persecuted if he is returned to Iran? The best way of considering this is to look at his conduct in Iran and the reaction of the authorities to that conduct. I do not think it is useful to allow concentration on a label such as "minor participant" to distract from that question. The Tribunal avoided this distraction. I see no error in the approach it took. 14 Mr Cuerden referred to the decision of the Full Court in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719, and especially what was said in that case by Sackville J at paras 63 to 67. In those passages Sackville J made this comment: "The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past things might have occurred even though the decision-maker thinks that they probably did not." 15 I do not disagree with that statement, but it seems to have little relevance to a case where there is no dispute about the relevant facts. In the present case, the Tribunal accepted, or at least assumed, the correctness of what Mr Karami said about the demonstration and his involvement. The question was whether, in the light of that acceptance and assumption, it was proper to find that he was not under a real risk of persecution if returned to Iran. I repeat the Court's gratitude to Mr Cuerden for his argument. However, I think it must fail and that the appropriate order is that the application be dismissed with costs. I so order. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox .