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[2002] FCA 194
respondent. The application was dismissed, and the applicant was ordered to pay the respondent’s costs.
No linked legislation citations have been extracted yet.
The Federal Court did not reconsider whether Negad should receive a protection visa. It checked whether the Tribunal had made a reviewable legal or jurisdictional error. The Tribunal had rejected important parts of his account and found no objective basis for his claimed fear. Carr J held that the Tribunal's conclusion was supported by material and disclosed no reviewable error. The application was dismissed, with costs against Negad.
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1,978 words · generated 30/09/2026
Mohammad Farhad Negad, an Iranian citizen, applied for judicial review of a Refugee Review Tribunal decision affirming a delegate's refusal to grant him a protection visa. The Tribunal made its decision on 2 July 2001. Carr J dismissed the Court application on 5 March 2002 and ordered Negad to pay the Minister's costs.
Negad's central claim was that he feared Iran's intelligence authorities because he had impersonated Rafsanjani, described in the Tribunal's reasons as a senior religious and political figure. He said he performed the imitation at a wedding and later learned that it had been recorded. He believed the authorities had become aware of the performance and would detain or harm him if he returned. His account also included a claim that two men visited his parents' home seeking him, and that he left Iran using his own passport after a friend in the Sepah helped him pass through airport checks ([2]–[4]).
At the Tribunal hearing, Negad added that his father had been arrested and that authorities had visited the family home after Negad left Iran. He said he had told his representative about this before the hearing. The Tribunal treated this as a late claim and rejected it. Carr J noted that the matter had not appeared in the representative's submissions sent to the Tribunal on the day before the hearing ([4]).
The Tribunal accepted some parts of Negad's account. It accepted that he could imitate Rafsanjani and that he had done so at a wedding ([5], incorporating Tribunal findings 14–15). But it did not accept that the performance had been recorded, that the authorities had become aware of it, or that Negad was of interest to them. It also rejected his account of paying a bribe to leave and his later claim about his father ([10]).
Negad's Federal Court grounds challenged the evidentiary basis for the Tribunal's decision and alleged an error of law in interpreting or applying the law ([6]). Carr J's task was not to decide the protection claim afresh. The judgment emphasises that the Court's jurisdiction was limited to review for error, while the merits were for the Tribunal ([7]–[8]). Having examined the papers and the Tribunal's reasons, Carr J found no reviewable error ([8]–[14]).
The Court's reasoning focused on the character of judicial review. Carr J said that Negad's written and oral submissions were mostly factual submissions directed to the merits of the Tribunal's decision. The Court could not substitute its own assessment of those merits merely because the applicant disputed the Tribunal's factual conclusions ([7]).
Carr J then checked whether the Tribunal had stated the relevant law correctly and applied it. The Court found that the Tribunal had set out the relevant law in the first part of its reasons and that nothing later in those reasons suggested it had failed to apply that law ([9]). The judgment does not reproduce the Tribunal's full legal analysis in Carr J's own numbered paragraphs, but it records the Tribunal's conclusion that Negad lacked an objectively based fear and did not meet the protection criterion in s 36(2) of the Migration Act 1958 ([5], incorporating Tribunal finding 57).
The Court summarised the factual basis for the Tribunal's decision. The Tribunal did not believe that Negad's performance had been videotaped or that the authorities had become aware of it. It rejected the account of a bribe enabling him to pass airport checks, and rejected the late claim that his father had been arrested and the authorities had sought him after departure. The Tribunal also found that Negad left Iran openly, in his own name, using his own passport. Carr J considered that the material provided more than sufficient support for the conclusion that Negad lacked a well-founded fear of persecution ([10]–[11]).
The Court also addressed the claim of legal error. Negad referred to the Refugees Convention and to Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379. Carr J said that nothing in those references was inconsistent with the Tribunal's reasoning ([7]). After examining the papers, the Court found that neither the submissions nor its own review disclosed an error of law ([12]).
The decisive point was not that the Court independently found Negad's account false. Rather, Carr J concluded that the Tribunal's decision was open on the material before it and that the grounds did not disclose a reviewable error. The judgment therefore leaves the Tribunal's factual assessment undisturbed, rather than making a new finding on the merits ([13]–[15]).
The judgment does not give a historical account of the development of refugee law or judicial review, and it does not describe any later change in the law. Its legal discussion is confined to the review application before Carr J.
As presented in this decision, the relevant framework had two parts. First, the Tribunal considered whether Negad had a well-founded fear of persecution and whether he met the protection criterion in s 36(2) of the Migration Act 1958. The Tribunal concluded that he did not, because it found no objective basis for his claimed fear ([5], incorporating Tribunal findings 56–57). Second, the Federal Court considered whether that Tribunal decision contained a reviewable error. Carr J expressly distinguished that task from reconsidering the merits of the protection claim ([7]–[9]).
The judgment's practical account of the judicial review boundary is clear: factual disagreement alone did not lead Carr J to re-decide the claim. Instead, the Court examined whether the Tribunal's decision disclosed legal or jurisdictional error and whether its conclusion was open on the material. It found no such error ([11]–[14]).
The decision cites Chan Yee Kin only in describing Negad's submissions. Carr J does not explain or develop a separate rule from that case in the reasons provided. The judgment says only that the applicant's references to the Convention and Chan Yee Kin were not inconsistent with the Tribunal's reasoning ([7]). It would therefore go beyond this source to attribute a more detailed proposition from Chan Yee Kin to Carr J's reasoning here.
Nothing in the supplied judgment establishes the state of the law after 5 March 2002. Any account of later statutory amendments, later cases, or subsequent treatment of Negad would require sources beyond this judgment.
At [7], Carr J wrote that “this Court has a very limited jurisdiction to review the Tribunal's decision, but the merits of his case were for the Tribunal to decide.” In plain English, the Federal Court was checking the legality of the Tribunal's decision, not deciding for itself whether Negad's fear was genuine or whether he should receive a visa.
At [9], Carr J said the Tribunal had set out the relevant law correctly, and that nothing later in its reasons indicated it had failed to apply that law. This explains why the Court did not accept the allegation that the Tribunal had misunderstood or misapplied the governing legal framework.
At [10], Carr J identified the findings that formed the essential basis of the Tribunal's decision. These included the rejection of the alleged video, the alleged official interest, the alleged bribe, and the late claim about Negad's father. In plain English, the Court understood that the Tribunal's conclusion rested on a series of factual findings, rather than on a single isolated point.
At [11], Carr J concluded that there was “more than sufficient evidence or other material” to justify the decision that Negad did not have a well-founded fear of persecution. This addressed the ground alleging there was no evidence or material to support that conclusion. It did not amount to a fresh, independent finding by the Court about what had happened in Iran.
At [13], Carr J said the Tribunal's conclusion was “open to it on the material before it.” That phrase captures the Court's approach: it was enough that the Tribunal could reach its conclusion on the material, in the absence of a reviewable error identified by the applicant.
At [14], Carr J stated that the Tribunal made “no reviewable error whether of law or jurisdictional error.” This was the central conclusion on the judicial review grounds. At [15], the Court gave effect to it by dismissing the application with costs.
The decision is most directly relevant to the procedural situation it addresses: a protection visa applicant asks the Federal Court to review an adverse Tribunal decision, and the asserted grounds challenge the Tribunal's factual assessment or allege legal error. The Court's response was to examine for reviewable error, not rehear the protection claim ([7]–[14]).
The factual setting included a claim of persecution based on alleged official awareness of a satirical performance, an alleged recording, an unexplained visit to family members, departure using a passport in the applicant's own name, and a later allegation about a family member. The Tribunal assessed these matters cumulatively and rejected key claims. Carr J summarised that reasoning in [10] and found the result open on the material in [13].
The judgment should not be read as establishing that a late claim is always unreliable, that departure on a passport necessarily defeats a protection claim, or that an alleged satirical performance can never create a risk. Carr J's reasons are case-specific. He recorded the Tribunal's findings and concluded that the particular review grounds did not establish reviewable error. Broader rules of that kind are not stated in this judgment.
For a lawyer, accountant, or compliance professional reading the case as a precedent, the useful trigger is therefore an argument about the boundary between merits disagreement and reviewable error. The case illustrates that a reviewing court may decline to revisit disputed facts where the Tribunal's conclusion is supported by the material and no legal or jurisdictional error is demonstrated.
The supplied judgment contains no citations to later cases and provides no information about how later courts treated Negad. No claim about later application, approval, distinction, or overruling can be made from this source alone.
The only other case named in Carr J's reasons is Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379. Carr J refers to it because Negad relied on it in submissions, and records that nothing in those references was inconsistent with the Tribunal's reasoning ([7]). That passage does not establish how later courts treated Negad, nor does it describe a detailed application of Chan Yee Kin.
The judgment does not set out the Tribunal's full independent country-information material. It refers to material concerning a pardon of writers who had written a blasphemous play, and to a Dutch Foreign Affairs Report concerning whether Iranian authorities would impute political or religious opinion to an unsuccessful asylum applicant ([5], incorporating Tribunal findings 33 and 55). The judgment does not provide the reports' full text, their dates, or their methodology.
The reasons also do not determine what would have happened had the Tribunal accepted the alleged video, the authorities' awareness, or the arrest of Negad's father. Those factual premises were rejected, so the Court did not need to assess their legal consequences on an accepted factual footing.
The judgment does not explain the precise content of the Tribunal's correct statement of the law at the start of its reasons. Carr J records his view that it was correct and that it was applied, but the full legal formulation is not reproduced in Carr J's numbered analysis ([9]).
Finally, the source does not establish whether later courts have adopted or limited the reasoning. That question remains unanswered on the judgment text alone.
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INTRODUCTION 1 This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 2 July 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 2 December 2000. On 7 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 27 February 2001 a delegate of the respondent refused to grant a protection visa and on 2 March 2001 the applicant applied for review of that decision.
the applicant's claims and the Tribunal's decision 2 The applicant's claims when interviewed on arrival, were, in summary as follows: · He was a single 32 year old Iranian citizen whose parents and five siblings remained in Iran. He had one other sibling living in Canada. His religion was Muslim Shi'ia and his ethnicity was Bakhtiari. · He was educated for twelve years. He worked as a denture technician from 1991 to 2000 and also as a physical education teacher at a private school from 1999 to 2000. · The reason he left his country was because his life was in danger from the Sepah Etalaat. He said that he had imitated the voice of "Rafsanjani" who is the second most powerful man in Iran. · He was at a wedding party with a group of friends and was joking around with the microphone imitating Rafsanjani. · About ten to twelve days later he received a phone call from someone who told him that he had been taped (later clarified as being a videotape) at the wedding. · He became very concerned because he knew that the Etalaat (Intelligence) would be after him. · He left home for two or three months and contacted his family who informed him that people had come looking for him. · He became concerned and did not go home or to work because he was scared. He decided to flee Iran and his parents agreed that he should. · Prior to this incident he had no intention of leaving Iran and he had a good job there. · He left Iran on 21 November 2000 and went to Malaysia where he remained for seven days before going to Indonesia (for thirteen or fourteen days) where a smuggler arranged to bring to him Australia. · If he returned to Iran he would be taken by the Etalaat and was not sure that he would survive. 3 In the written statement of claims which accompanied his application for a protection visa, the applicant gave more detail, but substantially repeated the above claims. 4 The claims were again repeated at the hearing before the Tribunal. At that hearing the applicant told the Tribunal that he had left Iran through an airport (which he had identified in his application form as being Tehran airport) using his own passport, having paid a bribe to a friend in the Sepah. He added that in January 2001 he had telephoned his brother in Canada who had told him that as a result of his (the applicant's) actions his father had been arrested and that Sepah officers had come to his house since his departure and said they were aware that he had impersonated Rafsanjani and they wanted him. The applicant told the Tribunal that he had informed his representative about this matter about 20 days to a month before the hearing. The hearing was on 20 April 2001. There was no mention of this matter in the migration agent's submissions sent to the Tribunal on 19 April 2001.
the Tribunal's decision 5 Rather than attempt to summarise the Tribunal's findings and reasons, I incorporate all of them into my reasons for judgment. I have added numbered to the paragraphs to facilitate the references which I make later in these reasons. "FINDINGS AND REASONS
grounds of the application 6 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 fear 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 an incorrect application of the law to the facts as found by the Tribunal or both."
my reasoning 7 The applicant was not legally represented at the hearing before me today. He had forwarded to the Court some written submissions last December following an adjourned hearing on 7 December 2001. The applicant also made oral submissions today. Those written and oral submissions were mostly of a factual nature which related to the merits of the Tribunal's decision. As I tried to explain to the applicant, this Court has a very limited jurisdiction to review the Tribunal's decision, but the merits of his case were for the Tribunal to decide. The applicant's written submissions included some references to the Refugees Convention and to Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379. Nothing in those references was inconsistent with the Tribunal's reasoning. 8 I have scrutinised the papers and the Tribunal's reasons to see whether there was reviewable error. 9 In the first parts of its reasons the Tribunal set out the relevant law correctly and, in my view, there is nothing later in its reasons to suggest that it did not apply the law as earlier recited. 10 The essential basis for the Tribunal's decision was simply that it did not believe that the applicant's performance at the wedding had been videotaped (see paragraphs numbered 18 and 50 of its reasons set out above. It did not believe that the authorities had become aware of the applicant's impersonation of Mr Rafsanjani (see paragraphs numbered 32 and 50 of its reasons). It did not believe the applicant's evidence concerning payment of a bribe to pass through the airport checks (see paragraphs numbered 38 to 42 of the Tribunal's reasons above). It rejected what it described as the applicant's eleventh hour claim that his father had been arrested and the authorities had come to his family home since his departure (see paragraphs numbered 43 to 48 of the Tribunal's reasons above). The Tribunal found that the applicant was able to leave Iran openly in his own name using his own passport and was not of any concern to the Iranian authorities. It further found, on the basis of independent material, that the Iranian authorities would not impute a political or religious opinion to the applicant because of his failed attempt to gain asylum in Australia. 11 In terms of the grounds of review I am satisfied that there was more than sufficient 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. 12 Neither the applicant's written or oral submissions nor my examination of the papers have disclosed any error of law. 13 In my opinion, the Tribunal's conclusion that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention was open to it on the material before it. 14 In my view, the Tribunal made no reviewable error whether of law or jurisdictional error.
Conclusion 15 As no jurisdictional error, error of law or any other reviewable error has been disclosed, the application will be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.
Counsel for the Respondent: Mr S A Walker (on 7 December 2001) and Mr L A Tsaknis (on 5 March 2002)
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 7 December 2001 and 5 March 2002
Negad
Minister for Immigration & Multicultural Affairs
(1989) 169 CLR 379
The application was dismissed, and the applicant was ordered to pay the respondent’s costs.