Salehi v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application brought pursuant to s 476 of the Migration Act 1958 (Cth) ("the Act") for review of a decision of a Refugee Review Tribunal ("the Tribunal") made on 28 September 2000. The decision affirmed the decision of a delegate of the respondent not to grant to the applicant a protection visa (class XA). Relevant law 2 Under s 36(2) of theAct a non- citizen in Australia is eligible for a protection visa if that person is someone: "… to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." The Refugees Convention is the Convention Relating to the Status of Refugees 1951 and the Refugees Protocol is the Protocol Relating to the Status of Refugees 1967. The expression "Convention" will be used to mean the Convention as amended by the Protocol. 3 Article 1a(2) of the Convention defines a "refugee" to be any person who: "…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it".

Reasons of the Tribunal 4 The claim which the applicant made was that he had a well-founded fear of harm for reason of his political opinion as he had come to the adverse attention of Iranian authorities because of his monarchist views and animosity with a Mr Hussain and because he was involved in student demonstrations in July 1999. He claimed to fear that he would have a real chance of persecution if he returns to Iran because of his interest to the security forces because of his participation in those student demonstrations. 5 The Tribunal was satisfied that the applicant is an Iranian from Tehran. However, it was not satisfied that he was harassed and persecuted because of his relationship with Mr Hussain and for being a monarchist, or that he participated in and fled from violent student demonstrations on 12 and 13 July 1999 in Tehran and was then forced to go in to hiding or that he was forced to leave Iran illegally. It found his evidence in relation to those matters unconvincing, unsatisfactory and lacking veracity. 6 In relation to the alleged previous adverse interest of the authorities, the applicant firstly claimed that Mr Hussain, a neighbour of his family who was a Pasdaran or revolutionary guard with a father who was clergyman or mullah, had caused the security forces (Basij) to take an adverse interest in him because of the refusal by his father for permission for Mr Hussain to marry the applicant's sister. The Tribunal accepted there may have been a marriage proposal to the applicant's family but did not accept that the consequences of that were to cause the adverse security interest of the authorities. It was not satisfied the applicant had been harassed and persecuted because Mr Hussain blamed him for the rejection of the marriage. 7 The applicant also claimed that Mr Hussain had occasioned the adverse interest because he had imputed monarchist political views to the applicant as a consequence of his father having been seen by Mr Hussain to be in possession of a picture of the former Shah. The Tribunal was not satisfied that the applicant had been harassed and persecuted because of such imputed views. It found it implausible and unrealistic that Mr Hussain should blame the applicant for the rejection of his marriage proposal and particularly target him for harassment and persecution to the exclusion of other members of the family and the applicant's father as the decision-maker. Furthermore, it considered that if anyone was to be imputed with monarchist views it would be the applicant's father and not the applicant. At no time had the applicant indicated any involvement with monarchist groups or the holding of monarchist views or engagement in monarchist activities. 8 Furthermore, the Tribunal found the applicant was unable to identify the organisation to which Mr Hussain belonged having variously described him as a member of the Pasdaran, the Basij, the revolutionary guards and the Komiteh. 9 Accordingly, the Tribunal was not satisfied the applicant was targeted by Mr Hussain nor that the applicant was harassed, picked up, questioned or harmed by the Iranian authorities at his instigation. Consequently, it found that the applicant did not have a well-founded fear of persecution for reasons of an adverse relationship with Mr Hussain and the imputed political opinion of being a monarchist. 10 As to the student demonstrations of July 1999, the Tribunal was not satisfied that the applicant had participated in those on 12 and 13 July 1999 and that he was there identified by Mr Hussain and, as a consequence, that he had fled Tehran and eventually Iran. Its conclusions concerning the implausibility of his evidence were based on evident confusion as to dates, the timing of the claim in relation to the hearing and the unsatisfactory character of his evidence about the demonstrations viewed against country information of what occurred on those occasions. It found that the applicant had fabricated this evidence to enhance his claims of persecution. Accordingly, it was satisfied he did not have a well-founded fear of persecution by reason of political opinion because of his participation in the student demonstrations in July 1999. 11 The Tribunal then turned to consider the applicant's departure from Iran. It was not satisfied that he had to flee because he was wanted by the authorities or that he left Iran illegally. It found it was probable that the applicant departed Iran legally using his own Iranian passport, which was disposed of prior to his detention in Australia. The Tribunal then continued: "118. I accept that, if the applicant were returned to Iran from Australia, the fact of his return to Iran without his Iranian passport may give rise to some questioning by the Iranian authorities. However, I am not satisfied that this gives rise to a well founded fear of being persecuted within the meaning of the Convention. I have taken note of independent evidence at paragraph 90, which I accept, that Iranian law imposes a fine or prison sentence of up to 12 months for illegal departure, but that the most likely penalty for an Iranian who has left Iran illegally is a fine. 119. I am satisfied that, whether the applicant is questioned, fined or imprisoned for departing illegally, the treatment to which he might be subjected upon return to Iran as the result of his illegal departure does not amount to persecution within the meaning of the Convention. This is because, without more, the punishment for illegal departure is an ordinary enforcement of a state's migration law and does not of itself make a person a refugee (Wu Guo Xiong V MIMA (1997) 45 ALD 127). I am satisfied, for the reasons above, that the applicant would not suffer punishment for reasons of actual or imputed political opinion but would arise from ordinary enforcement of a migration law." 12 Next, the Tribunal examined the position in relation to the effect of the making by the applicant of his application for refugee status. It said: "120. I have found no evidence that failed refugee claimants, persons who have illegally exited Iran, or deportees face any significant problems upon return to Iran, and applying for asylum abroad is not an offence in Iran. I am satisfied that the applicant does not face a real change of persecution by reason of his application for a protection visa in Australia if he returns to Iran." 13 The Tribunal then concluded it was not satisfied that the applicant had a real chance of persecution in the reasonably foreseeable future if he was to return to Iran because of his political opinion or because he did not have a passport or because of his application for refugee status in Australia. It therefore affirmed the decision not to grant the protection visa.