PW87/2001 v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application under Part 8 of the Migration Act 1958 (Cth) ("the Act") for the review of a decision of the Refugee Review Tribunal ("RRT") given on 27 February 2001. By that decision, RRT affirmed the decision of the Minister's delegate not to grant a protection visa to the applicant. 2 The applicant is a citizen of Iran. He arrived in Australia in October 2000. He applied for a protection visa on the ground that he had a well-founded fear of persecution if returned to Iran by reason of his political opinion. 3 RRT said that it had "reservations" as to the credibility of the applicant's claim. RRT overcame those "reservations", and accepted as credible the following facts: "- In 1992 the applicant was detained on suspicion of being linked to the MKO; he was detained for two and half months and released when a court found the case not proved; - after this, he found it difficult to get a permanent job, though in 1998, through contacts, he got a job in sales/administration in a semi-government carpet co-operative, for which job he did not need a police clearance; - he was dismissed after several months because he did not attend group prayers and marches; after this job, the applicant worked painting houses, photographing social functions, and working as a taxi driver in his father's car; - in March 2000, a friend of his, Ali Reza, asked him if he wanted to join a political group, and the applicant accepted to do so; - the applicant's role in the group was to keep a photocopier in the basement of his parents' and his home, and to facilitate access to the photocopier by his contact in the group, Shafagh; - the applicant understood from Shafagh that there were about twenty members of the group, but the applicant did not know any others in the group apart from Shafagh; - the group wrote, copied and distributed anti-regime pamphlets; - in about August 2000, Shafagh told the applicant that two members of the group had been arrested and the applicant and Shafagh removed the photocopier from the applicant's home and took it to a disused building; - the applicant left Iran a week later using his own passport." The applicant is entitled to the full benefit of those findings, without any residual dilution flowing from the reservations which RRT expressed as to the credibility of the applicant's claims. 4 The country information before RRT established that distributing anti-government pamphlets in Iran is regarded as a serious offence. The authorities would be hostile towards people distributing anti-government leaflets, and such individuals would certainly be arrested and detained. 5 Nonetheless, RRT found: "After considering all the evidence, including the country information above, the Tribunal finds that if the applicant returns to Iran, he may face a chance of having been put on a blacklist and/or of being questioned and subsequently of being detained for his brief and marginal involvement in an anti-regime group in 2000, but that this chance would be remote. The Tribunal finds that if the applicant returns to Iran, he does not hold a well-founded fear of persecution for a Convention reason." 6 RRT appears to have relied upon the following matters in coming to this conclusion: - the applicant knew only one other person in the group, Shafagh; - his involvement was marginal, limited to allowing his parents' house to be used to house the photocopier, and keeping watch while the photocopier was in use; - his involvement only subsisted for a short time, and his interaction with other members of the group was minimal; - the photocopier was removed from his parents' home before he left Iran; - there were no visits by the authorities to his home in the week prior to his departure, nor have there been any such visits since his departure; - the fact that he could leave Iran lawfully indicates that he was not, at that time, of interest to the authorities; - he was not aware of anything adverse happening to Shafagh and/or Ali Reza after his departure. 7 At CB 117, in its preliminary observations, RRT addressed the notion of a "real chance" of persecution. It said: "A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A 'real chance' is one that is not remote or insubstantial or a far fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent." It is vital not to conflate this test with a conscious or unconscious adoption of an alternative that there must be a risk of persecution shown on the probabilities, because that would involve an incorrect and more onerous test. 8 The applicant did not submit that the process of reasoning referred to above demonstrated any departure from, or failure to understand, the "real chance" test. Puerta v Minister for Immigration & Multicultural Affairs [2001] FCA 309 is a decision of a Full Court which considered whether the use of the word "remote" in a context similar to the present signified any legal error, and rejected a submission to that effect. Even if the process of reasoning adopted by the Tribunal be regarded as less than convincing, the fact that: "Conclusions of facts drawn by the Tribunal are unreasonable or may seem to be unreasonable to another, or that other minds would not have reached the same conclusion …" does not ground judicial review under s 476 of the Act: Brakni v Minister for Immigration & Multicultural Affairs [2001] FCA 48 at [10].