Mehrabi v Minister for Immigration & Multicultural Affairs

The RRT's Findings 5 In relation to Mr Mehrabi's claim that he would suffer persecution for selling liquor, the RRT found that "the penalties for selling liquor [in Iran] are very harsh… and against accepted principles in Australia of human rights". However, the RRT found any persecution for selling liquor would arise as the result of "breach of a law of general application, not persecution for … political opinion, actual or imputed". Consequently, this was not a claim on which Mr Mehrabi could rely on under the Act. 6 In contrast, the RRT accepted that if Mr Mehrabi was involved in the selling and distribution of Western, pornographic and political movies, he faced a real chance of persecution on the ground of imputed political opinion. 7 However, ultimately, the RRT concluded that Mr Mehrabi's evidence was not credible, but fabricated for the purpose of obtaining a protection visa. In coming to this conclusion the RRT noted "implausibilities, inconsistencies and unusual aspects" in Mr Mehrabi's evidence, including: · the implausibility that Mr Mehrabi could have been detained for periods of six and three months without the knowledge of his parents, whom which he lived; · the implausibility of hiding the result of 75 lashes from his parents; · contradictions and discrepancies in Mr Mehrabi's evidence regarding his religious and political views; and · discrepancies in dates and other evidence.

Contentions of the Applicant at the Hearing 8 At the outset of the hearing Mr Lindsay abandoned the original grounds of review in the application and, with leave, substituted four new grounds. I will consider these in turn.

Ground One 9 Mr Lindsay first contended that the RRT erred in finding that Mr Mehrabi did not have a well founded fear of persecution for reasons of actual or imputed political opinion. Mr Lindsay described this first ground of review as his client's "principal submission in this case". The gravamen of Mr Lindsay's submissions on ground one was that his client should have been believed. It was submitted that: "The principal submission of the applicant is that the critical evidence upon which the Tribunal relied to justify the finding that the applicant was not to be believed was a misstatement of the evidence provided by the applicant." 10 However, the conclusions reached by the RRT were open to it on the evidence before it. Mr Lindsay's first ground appears to amounts to no more than an invitation to the Court to engage in an impermissible merit review. 11 In an attempt to support the submission that Mr Mehrabi should be believed, Mr Lindsay sought to rely on material that was not before the RRT to confirm his client's version of events with respect to the timing of his mother's hospitalisation. Such material is inadmissible before the Court. See Ozberk v Minister for Immigration & Multicultural Affairs (1998) 79 FCR 249 at 254 to 255. See also Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 at [27] where a Full Court said: "It is beyond question that the power of the Court under s476(1) generally and s476(1)(g) in particular does not extend to a re-examination of any of the factual matters ventilated before the Tribunal." 12 Furthermore, Mr Lindsay submitted that there was no evidence to support or justify the finding that Mr Mehrabi was not to be believed. This submission is also rejected. It is merely another re-formulation of a submission that quibbles with findings about credibility which were open to be made by the RRT.

Ground 2 13 Second, Mr Lindsay submitted: "The Tribunal erred in disbelieving the applicant had been convicted, detained and flogged for selling liquor." 14 This second ground is not a proper ground of review for the purposes of an application under Part 8 of the Act. This ground was only tentatively argued at trial. It has no substance. The RRT was entitled to disbelieve Mr Mehrabi's claims about his liquor-related punishment given the inconsistencies in his evidence which are referred to in its reasons for decision.

Ground 3 15 The third ground alleged that the RRT misrepresented Mr Mehrabi when it concluded that he should not be believed about certain matters including: "(a) selling liquor and pornographic videos… (b) the Majahideen being involved in the making of videos… (c) his selling of pollitical videos…" 16 This, again, is not a proper ground of review under the Act. It involves a complaint about a finding of fact which was open to the RRT to make. In any event, Mr Lindsay conceded that the RRT's findings on the above matters "… certainly doesn't seem to have been central to the decision of the Tribunal ... ".

Ground 4 17 The fourth ground alleged that the RRT erred in law by not finding the applicant faces a real chance of persecution when certain matters were taken into account. These matters included: "(a) that whether or not the applicant left illegally, he will return without valid papers; (b) that there was a likelihood the authorities would be aware that he has sought asylum in Australia; (c) once accepted liquor was found at his business premises and political videos at his home… he will face severe punishment." 18 None of the above suggested findings are matters on which the decision turned. The fourth ground was not developed at trial. It does not relate to a valid ground of review under s476 of the Act.

Conclusion 19 The entire case for Mr Mehrabi has the distinct flavour of an attempt to re-run the factual case before the Court rather than raise any true question of law. Consequently, the application will be dismissed with costs. The Court will order as follows:

1. The application be dismissed.
2. The applicant pay the respondent's costs, including reserved costs, if any. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate: Dated: 27 April 2001 Counsel for the Applicant: Mr R E Lindsay (appeared pro bono)

Solicitor for the Respondent: Australian Government Solicitor