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2 The appellant arrived in Australia on 10 October 2000 and applied for a protection visa on 1 November 2000. That application was refused by a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), on 12 December 2000. On 19 December 2000, the appellant applied to the Refugee Review Tribunal ("the Tribunal") for review of the delegate's decision not to grant a protection visa. On 1 June 2001 the Tribunal affirmed the decision not to grant a protection visa.

Bahambari v Minister for Immigration & Multicultural Affairs [2002] FCAFC 1

Bahambari v Minister for Immigration & Multicultural Affairs [2002] FCAFC 19 (13 February 2002); [2002] FCA 128
Last Updated: 6 May 2002


Bahambari v Minister for Immigration & Multicultural Affairs
[2002] FCAFC 19

Bahambari v Minister for Immigration & Multicultural Affairs [2002] FCA 128



NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)
The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

* All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.


FEDERAL COURT OF AUSTRALIA
Bahambari v Minister for Immigration & Multicultural Affairs [2002] FCA 128


GHORBAN ALI BAKHSHI BAHAMBARI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 390 OF 2001

DRUMMOND, MANSFIELD & EMMETT JJ

13 FEBRUARY 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA


WESTERN AUSTRALIA DISTRICT REGISTRY
W 390 OF 2001



ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
GHORBAN ALI BAKHSHI BAHAMBARI

APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES:
DRUMMOND, MANSFIELD & EMMETT JJ

DATE OF ORDER:
13 FEBRUARY 2002

WHERE MADE:
PERTH



THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA


WESTERN AUSTRALIA DISTRICT REGISTRY
W 390 OF 2001



ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
GHORBAN ALI BAKHSHI BAHAMBARI

APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT



JUDGES:
DRUMMOND, MANSFIELD & EMMETT JJ

DATE:
13 FEBRUARY 2002

PLACE:
PERTH




REASONS FOR JUDGMENT
DRUMMOND J

1 His Honour, Emmett J, will deliver his reasons first.

EMMETT J

2 The appellant arrived in Australia on 10 October 2000 and applied for a protection visa on 1 November 2000. That application was refused by a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), on 12 December 2000. On 19 December 2000, the appellant applied to the Refugee Review Tribunal ("the Tribunal") for review of the delegate's decision not to grant a protection visa. On 1 June 2001 the Tribunal affirmed the decision not to grant a protection visa.

3 On 6 June 2001, the appellant filed an application to the Federal Court for an order of review of the decision of the Tribunal. On 22 August 2001, a judge of the Court dismissed the application with costs. The appellant now appeals to the Full Court from the orders of the primary judge.

THE APPELLANT'S CLAIMS

4 The appellant is a thirty-eight year old man from Iran. He arrived in Australia without documents. He claimed that he is at risk of persecution in Iran for reasons of political opinion and religious beliefs. He claimed that he was believed to be a supporter of the Mojahedin-e Khalq ("the MEK"). He also claimed to have been converted to Christianity since arriving in Australia.

5 The appellant was interviewed by an officer of the Department of Immigration and Multicultural Affairs ("the Department") on 17 October 2000. Prior to that interview, he completed a questionnaire in which he stated that he was a Shi'a Muslim. In answer to questions concerning his political involvement, he said that he had no association with or involvement with any political group or activities.

6 In the course of the interview when asked why he had left Iran, the appellant said that when he was fifteen he began working in a carpenter's shop. He was friendly with the shop owner's son, Reza, who was a member of the MEK. He claimed that, because of his friendship, he was suspected of involvement with the MEK. He said that he was questioned on a number of occasions and asked whether he had distributed leaflets or done anything else to support MEK.

7 According to the questionnaire completed before the first interview, the appellant was in Korea from 1995 until 1998. While there he worked as a carpenter. He returned to Iran in 1998 because his mother was ill. Before leaving Korea he went to the Iranian embassy in Korea and was given a document that allowed him to return home. He claimed that he was arrested and detained when he arrived back in Iran because of the nature of the travel document. He claimed that he was tortured while in detention.

8 He claimed that after his release he decided to leave Iran. He said that left Iran about two months prior to his arrival in Australia. He said that he drove to Turkey where he acquired a false Italian passport and then flew to Thailand from where made his way to Australia.

9 In his protection visa application, the appellant also said that his religion was Muslim Shi'a. He referred to his work in the carpenter's shop until 1984 when he commenced military service. He also said that he worked for a shipping company until 1995 when he went to Korea. According to a written submission provided with the application for a protection visa, the appellant again said that his friend Reza belonged to the MEK. He said that Reza was harassed because people did not like the MEK and he also experienced harassment because of this until he commenced his military service. He claimed that while he remained at the shop owned by Reza's father, he was questioned once a month by the revolutionary guard.

10 The appellant was interviewed by the Minister's delegate on 2 November 2000. He repeated the substance of the claims made in the written statement provided with his protection visa application. When asked, he said that he had not belonged to the MEK and said nothing about being an active sympathiser or supporter of that group. He reasserted that he was questioned every few months by the revolutionary guard before and after doing his military service.

11 On 27 February 2001, the appellant's adviser forwarded a written submission to the Tribunal. The Tribunal understood the submission as indicating that the appellant has a well-founded fear of persecution in Iran because he was believed to be a supporter of the MEK. In the course of the hearing before the Tribunal on 28 February 2001, the appellant again said that he had faced the problems in Iran because his friend Reza was a member of the MEK. However, he also claimed that he himself had been a sympathiser of the MEK and that he had helped print the group's magazine from about 1980-81 when he was 15 or 16 years old. When asked how long he had continued to do that work, he first said that he had continued until the present time. Then he said that he had been arrested and gone to Korea and that when he had returned he had been under surveillance so he had not been able to continue his activities. When asked for more information about his activities in support of the MEK prior to 1990 he said that he made what appeared to the Tribunal to be some kind of stencil and used it to spray signs on walls.

12 The appellant also repeated a claim that he had been arrested in 1990 because he had painted the MEK symbol on a piece of wood at the request of a friend. He said that he had made it for his girlfriend to use at seminars or festivities. He claimed that he was arrested because of the sign. However, he gave conflicting versions of the circumstances of the arrest at the interview on 17 October 2000 and at the hearing before the Tribunal on 27 February 2001.

13 In the course of the hearing before the Tribunal, the appellant confirmed that he had a three month visa for Korea and had remained in that country illegally after the visa expired. He said that he had been unable to renew his Iranian passport in Korea but had been given a travel document to return home.

14 The appellant said in the course of the hearing that he had been detained when he arrived back in Iran in 1998 and was kept in detention for a month. He said that at some time his father came and swore at the officials and he was released after he gave an undertaking to cooperate. When he arrived home he found that his father had killed himself. He said that for the next ten months he remained in his hometown and then sold his business and other properties and left Iran.

15 At the beginning of the hearing before the Tribunal, the appellant's adviser said that she had just been informed by him that he had converted to Christianity. The Tribunal asked the appellant about his conversion and the appellant said that he had developed a relationship with the Christian church while in Korea. He said that he had not actually converted to Christianity while in Korea but had grown to respect the Christian religion when he saw people praying for the welfare of others. He claimed that he went to services on Sunday from shortly after his arrival in Korea until his return to Iran. He said that he never went to a mosque whilst in Korea.

16 On 14 March 2001, the minister at the Port Hedland Uniting Church wrote to the Tribunal saying that the appellant had been attending worship conducted by the minister at the Port Hedland Detention Centre. On 26 March 2001, the appellant forwarded a certificate to the Tribunal stating that he had completed a World of Life Bible correspondence course and on 15 April 2001 he forwarded to the Tribunal a Certificate of Baptism from the Port Hedland Uniting Church.

THE TRIBUNAL'S REASONING

17 The Tribunal did not accept that the appellant was ever an active supporter of the MEK, nor that he was detained for up to twenty-four hours on a number of occasions and questioned about his involvement with the group. The Tribunal observed that the claims to the effect that he was an active supporter of the MEK were not made prior to the hearing. In his earlier statements he had said that he had never been involved in political activities in Iran and had not belonged to the MEK. The Tribunal concluded that the appellant had concocted the claims that he had been active in the MEK and that he had been detained for up to twenty-four hours on a number of occasions.

18 The Tribunal did not believe that the appellant was arrested in 1990 because he made a wooden sign bearing the MEK symbol. The Tribunal referred to conflicting accounts of what the sign was, why he made it and how the authorities learned of its existence.

19 Since the Tribunal did not accept that the appellant was involved with the MEK, nor that he was suspected of involvement with the MEK, it followed that the Tribunal did not accept that he was required to report regularly to the authorities because of his real or suspected association with the MEK. The Tribunal referred to inconsistent statements made by the appellant on different occasions concerning the requirement to report. The Tribunal was not satisfied that the appellant was of interest to the Iranian authorities for any reason at the time he left for Korea in 1995. Nor was the Tribunal satisfied that the appellant had left Iran illegally on that occasion.

20 The Tribunal accepted that the appellant was given a travel document allowing him to travel back to Iran in 1998. However, since the Tribunal did not accept that he was of interest to the authorities for any reasons relating to the UN Convention Relating to the Status of Refugees 189 UNTS 150 ("the Convention&quo;
t;) prior to his departure for Iran, and there was nothing in the evidence to suggest that that changed during his absence, the Tribunal did not accept that the Iranian authorities refused to renew his passport in Korea for any of the Convention reasons. The Tribunal considered that the fact that the appellant remained in Korea illegally for two and a half years, during which time his Iranian passport expired, may have caused him some problems when he sought to renew his passport.

21 The Tribunal did not accept that the appellant attended a Christian church regularly for most of the three years he lived in Korea. He made no mention of that claim prior to the hearing, describing himself as a Muslim when interviewed on arrival and in his protection visa application. The Tribunal considered that it was unlikely that the appellant would have described himself as a Muslim on those occasions if he were in the process of preparing to convert to Christianity.

22 As the Tribunal did not believe that the appellant was under any form of reporting conditions at the time he left Iran in 1995 nor that he left the country illegally, nor that he attended a Christian church in Korea, it followed that the Tribunal did not accept that the appellant was detained for any of those reasons on his return to Iran in 1998. The Tribunal was not satisfied, on the evidence before it, that the appellant was detained for any reason when he arrived back in Iran in 1998. Nor was it satisfied that the appellant had any problems with the authorities in Iran during the twenty or so months that he remained in the country before coming to Australia.

23 Finally, the Tribunal did not believe that the appellant had made a genuine conversion to Christianity since arriving in Australia. It did not find him to be a generally credible witness and found that the evidence that he gave regarding his conversion unconvincing. It noted that he did not begin attending Christian services in Australia until the Sunday before the hearing, then gave what the Tribunal regarded as dishonest evidence on that issue at the hearing. The Tribunal found that the appellant's willingness to claim to be both an MEK supporter and a Christian was a strong indication that he was prepared to say anything that he believed would assist in his protection visa application.

24 As the Tribunal did not believe that the appellant has genuinely converted to Christianity, it did not believe that he would go to Church or participate in any Christian activities in Iran. In those circumstances, the Tribunal did not believe that there was a real chance that the appellant would face serious problems amounting to persecution on his return to Iran because of his alleged conversion to Christianity in Australia. The Tribunal did not believe that the fact that the appellant had attended Christian services and had been baptised while in Australia meant that there was a real chance that he would be persecuted if he returned to Iran. The Tribunal, accordingly, was not satisfied that the appellant has a well-founded fear of persecution for reasons of political opinion or religion or for any other reason contained in the Convention.

THE DECISION OF THE PRIMARY JUDGE

25 Ignoring the spelling and grammatical problems, the grounds of the appellant's application to the Federal Court were as follows:

* the decision of the Tribunal involved an error of law involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal or both;

* the decision involved an error of law in that the Tribunal made findings of fact upon which its decision was based that were not rationally supported by probative evidence and it failed to rationally consider the probative evidence that was before it.

26 The primary judge, in his reasons, summarised the findings of the Tribunal. His Honour observed that the Tribunal's reasons point to numerous discrepancies between the account that the appellant had given in his initial interview, his application for a protection visa, the written submissions that supported the application and the evidence given before the Tribunal.

27 In the hearing before the primary judge, the appellant concentrated on factual matters rather than legal matters. He referred to the suffering that he and those who were close to him had experienced. In essence, he complained to the primary judge that the Tribunal had not believed him. In substance he wanted the primary judge to reconsider the merits of his case.

28 The primary judge, having carefully read the Tribunal's reasons, concluded that the Tribunal had reached its decision having regard to its assessment of the appellant's credibility. As his Honour observed, that is a matter for the Tribunal and not a matter for the Court. His Honour concluded there was nothing in the Tribunal's reasons that suggested that it incorrectly interpreted the law or incorrectly applied the law to the facts found by it. Further, his Honour concluded that there was nothing in the Tribunal's reasons that could be said to be irrational or not based on the evidence before it. His Honour found nothing in the Tribunal's reasons that suggested that the Tribunal made any reviewable error. In those circumstances, his Honour dismissed the application for review and ordered the appellant to pay the Minister's costs.

THE APPEAL

29 The grounds of appeal put forward in the Notice of Appeal may, after correcting grammatical and spelling errors, be stated as follows:

1. the Tribunal did not consider the appellant's case and whatever the appellant did not say, the Tribunal wrote for him;

2. the Minister claimed that the appellant did not make his problems about MEK in the first interview and that those claims were first made at the Tribunal hearing when in fact the appellant had written that matter in his statement;

3. the appellant is a Christian and believes in Christianity and wants to live that way. Many Muslim people in Australia know about his conversion and many of them reported it to his family and his city and to the authorities. However the Tribunal did not consider the problem that would arise if the appellant was forced to return to Iran where he would be persecuted by the people and the authorities.

30 None of those grounds is a complaint of error on the part of the primary judge. Rather, they are an invitation to the Full Court to re-examine the merits of the appellant's case before the Tribunal. The appellant was not represented on the hearing of the appeal, although he was assisted by an interpreter in the Farsi language.

31 The appellant made some written submission to the Court. In these submissions the appellant referred to an observation made by the primary judge in his reasons as follows:

"The Tribunal ultimately did not accept most of [the appellant's] claims. For example, it recorded that his evidence of involvement with the MEK, a matter not initially raised, was `presented in an unconvincing manner'. Indeed, the Tribunal noted that it believed the claims about an associated with the MEK were concocted." - see [8].
32 The appellant asserted in his written submission that he had mentioned his involvement with the MEK in his initial interview. He asserted that he told the interviewer that he was sympathetic to the MEK and liked their ideas and activities. He contended, therefore, that the Tribunal and the primary judge misunderstood and made a mistake concerning his credibility.

33 This appears to be a complaint that the Tribunal made an erroneous finding as to the credibility of the appellant, based on misapprehension of the claims that he made when initially interviewed. However there is nothing in the record of the interview that may suggest that the appellant was sympathetic to the MEK. On the other hand, as the Tribunal recorded, the appellant referred to the fact that he was friendly with Reza, who was a member of the MEK. There is northing before this Court to suggest that either the Tribunal or the primary judge misunderstood the material that was before the Tribunal. There is no reviewable error demonstrated in the approach of the Tribunal in dealing this question.

34 The appellant's written submission also contains assertions that when he was in Korea he was interested in Christianity so went to church regularly. He asserted that there were many people from his hometown in Iran who knew about his activities concerning Christianity in Korea. He claimed that when he returned to Iran from Korea the authorities knew about his interest in Christianity and his activities with the church in Korea. Reference to these matters is no more than an attempt to have this Full Court make different findings of fact from the Tribunal.

35 The appellant also submitted a letter of 23 September 2001 addressed to the Federal Court by the minister of the Port Hedland Uniting Church. The letter refers to the baptism of the appellant as a Christian and states that the author is convinced of the genuineness of the appellant's faith. However, having regard to the nature of the application for review to the primary judge and the nature of this appeal from the orders of the primary judge it would be impermissible for the Court to have regard to the letter of 23 September 2001. In his written submissions the appellant also suggested that the letter of 14 March 2001 from the minister of the Uniting Church had been overlooked by the Tribunal. However, the Tribunal's reasons refer expressly to this letter and there is no grounds for review disclosed in that regard.

36 The contentions of the appellant concerning the findings regarding his conversion to Christianity appear to be an attempt to invite this Full Court to reconsider the merits of the decision by the Tribunal. It is not open to this court o do so. The appellant has not advanced any submissions to the Full Court that would support a conclusion that there was any error on the part of the primary judge in dealing with the application for an order of review of the Tribunal's decision. It follows, therefore, that the appeal should be dismissed.

DRUMMOND J

37 I agree with the reasons given by Emmett J and with the order he proposes.

MANSFIELD J

38 I also agree that the appeal should be dismissed for the reasons given by Emmett J.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Drummond, Mansfield and Emmett.



Associate:

Dated: 13 February 2002

Counsel for the Applicant:
The appellant appeared in person




Counsel for the Respondent:
Mr A A Jenshel




Solicitor for the Respondent:
Australia Government Solicitor




Date of Hearing:
12 February 2002




Date of Judgment:
15 February 2002

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