P v Minister for Immigration and Multicultural Affairs

WILCOX J: 1 This is an application for judicial review of a decision of the Refugee Review Tribunal. The Tribunal affirmed a decision of a delegate of the respondent, Minister for Immigration and Multicultural Affairs, to refuse to grant a protection visa to the applicant. 2 At the hearing of the application for judicial review, the applicant was represented by Ms L B Price of counsel, appearing on a pro bono basis. I record the appreciation of the Court for Ms Price's willingness to undertake that task.

The facts 3 The applicant is a citizen of Iran. He arrived in Australia on 29 June 2000 and subsequently applied for a protection visa. He did so on the basis that he was a "refugee" within the meaning of the 1951 Convention on the Status of Refugees as amended by the 1967 Protocol on the Status of Refugees. 4 The applicant told the Tribunal that, in Iran, he had been employed by a certain publicly-owned company. Shortly after taking up a new, senior position, he discovered documentary discrepancies that led him to conclude other officers had engaged in fraudulent activities. He investigated the position and prepared a report which he submitted to the company manager. He received no response from the manager. However, shortly afterwards, the head of security in the company accused him of insulting the Islamic Supreme Leader and promoting anti-government ideas. He denied these allegations. A few days later, he was questioned about his activities, his friends and his attendances at Friday prayers. On the following day, he was stopped as he left work and taken by car to a secret Ministry of Information prison where he was held for three days, during which he was bashed and caned on the soles of his feet. 5 After three days, the applicant said, his brother inquired for him at his workplace. The head of security brought the brother to the prison and showed the applicant a petition from company workers alleging the applicant had criticised government policies and a particular official. The head of security threatened to send this petition to the Information Ministry, unless the applicant withdrew his letter to the company manager and handed over the documents that supported his claim of fraud. The applicant said he would do this, but he had sent the documents to a friend in Teheran. The head of security allowed the applicant to go to Teheran to get the documents. Instead, he left Iran and made his way to Australia. 6 The applicant told the Tribunal that, since his departure from Iran, a "warrant" had been sent to his home requiring his attendance at court. This document had been sent on to him in Australia by his brother. The applicant produced a document, of which there is an "unofficial translation" in the Tribunal's papers. The translation is headed "Warrant". It identifies the applicant and states his address in Iran. It also identifies a particular police station as "Place of Issue". The document indicates a "Place of Hearing", "Date of Hearing" and "Time of Hearing". Against the item "Reasons for Warrant" are the words "Security unit of [omitted] company has lodged a complaint against you. You must be present at the given time and date". The nature of the complaint is not specified. 7 In her reasons for decision, the Tribunal member referred to "country information" concerning several matters. One of these matters was summonses and warrants issued in Iran. The member quoted from a Department of Foreign Affairs and Trade communication of 4 July 1997, a document apparently emanating from the Australian Embassy in Teheran. The quoted excerpt read: "In relation to the procedure for issuing arrest warrants in Iran, warrants are issued by the judicial authorities directly to the police for the arrest of the defendant. The defendant is never provided with a copy of the warrant. Iranian law requires that defendants be informed of charges against them within 24 hours although this requirement is not always adhered to. In the case of lesser charges, including misdemeanours such as breach of trust or failure to pay alimony, the defendant receives a summons to appear in court. The summons is issued by the judicial authorities and sent to the address of the defendant, by the bailiff of the Ministry of Justice. Unlike arrest warrants, a summons can be served regardless of whether or not the defendant is present and can be kept by the individual concerned. In contrast, an individual charged with serious offences such as manslaughter or major drug offences would not be summonsed to appear in court. Rather, a person charged with an offence of this severity, would simply be arrested by police who would possess an arrest warrant. After its issue by the judicial authorities to the police, the arrest warrant is retained by the police who place it on the defendant's file. It is not returned to the judicial authorities. Under no circumstances would a copy of an arrest warrant be given to the person charged or to a member of his family. The defendant never has the right to see it. As previously mentioned, the defendant's only right is to be told within 24 hours the reason for his detention. The Embassy's legal firm has seen many forged Iranian official documents including arrest warrants. Forgeries often consist of whiting out some descriptions on the summons (not on an arrest warrant because the defendant would never have this in the first place) and then making a photocopy of the document, or simply printing fake judicial documents and then filling them in. Our legal firm has advised that it would be willing to examine any documentation or make limited enquiries with the courts. It is in a position to establish if particular cases genuinely exist in the courts." 8 The Tribunal member did not accept the truthfulness of the applicant. Her first stated reason related to the "warrant". The member said: "The applicant's claims were unsupported. The Tribunal does not accept that the warrant he submitted is legitimate. Country information indicates that warrants are not given out. The applicant agreed with this but explained that this was a warrant from the head of internal security at his workplace. The explanation makes no sense."