FEDERAL COURT OF AUSTRALIA

Shabooti v Minister for Immigration and Multicultural Affairs [2001] FCA 1084

MIGRATION – protection visa – review of decision of Refugee Review Tribunal refusing visa – no evidence ground of review – requirements to establish “no evidence” on which decision based.

Migration Act 1958 (Cth)

Yilan v Minister for Immigration and Multicultural Affairs (1999) 55 ALD 600 cited

AHMAD SHABOOTI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W172 OF 2001

FRENCH J

7 AUGUST 2001

PERTH

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The Applicant pay the Respondent’s costs  of the application.

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

REASONS FOR JUDGMENT

Factual Background

1                     Ahmad Shabooti is a citizen of Iran.  He is 25 years old and is presently in immigration detention in Derby.  He arrived in Australia without any lawful authority on 23 December 2000.  On his arrival he was interviewed by an officer of the Department of Immigration and Multicultural Affairs.  Notes of that interview were taken by that officer and are in the papers before the Court.

2                     He applied, on 7 January 2001, for a protection visa under the Migration Act 1958 (Cth).  He had a further interview with an officer of the Department on 10 January in relation to his application.  On 12 February, his application for a protection visa was refused.  That refusal was by an officer of the Department, acting as a delegate for the Minister.

3                     On 13 February, Mr Shabooti sought a review of the delegate’s decision in the Refugee Review Tribunal.  Submissions were made in support of his application for review by lawyers, Macpherson & Kelley on 6 April.  A copy of those submissions appear in the papers which are before the Court and they were before the Tribunal. In the course of those submissions, the lawyers told the Tribunal that Mr Shabooti belonged to an Arab tribe in a town in Iran and lived with his family there.  During the war between Iran and Iraq the family had to leave the area and one of his sisters was killed in an air raid.  They had to leave all their possessions behind.  They moved to another town where they lived with a relative.  Mr Shabooti’s father was unable to gain employment.  Mr Shabooti believes that this was due to the fact that he is an Arab.  He finished his education but had great difficulty finding employment also, he said, because he was an Arab.  Mr Shabooti said through his lawyers that in 1985 a friend of the family leased some land to them.  It was farmland.  He worked on the farm after school as well as his part time work in an automobile mechanic shop.  In 1996 it is said that the land was taken over by the Iranian National Oil Co and the family was no longer allowed to farm there.  He says his father complained to the authorities, but without any success.  He tried to protest and prevent the establishment of an oil well on the land.  At one time that argument became heated and he pushed one of the officials and was reported to the security forces.  He said that in 1997, he and his brother and father were arrested because of their constant protests.  He was detained for two days, his father for two months and his brother for six months.  He said that during his detention he was beaten and had a black eye and several broken teeth.  He was released on bail.

4                     Mr Shabooti said that he and his family were threatened by authorities that if anything happened to the oil well they would be held responsible.  In the middle of 2000 there was a fire on the land.  He says the security forces raided his house after the fire.  His father and brother were arrested, but he escaped through the roof.  He went to a nearby village.  His father and brother were released after five days, but they told him security forces were still looking for him.  They told him that he was personally being held responsible for the fire.  He said that because of this he was also accused of being an anti-government activist. His father told him it would be best if he left the country.  He went into hiding until his family raised the money for him to do so.  They sold some property and he left the country in October 2000.  He left Iran legally on his own passport.  He says that he paid a smuggler about $US4,200 to leave the country.  He did not know whether or not he was on an airport black list.  He believed that if he had been on a black list the smuggler would have paid a bribe to an airport official.  In this way he would have been able to leave the country without any difficulties.

5                     Mr Shabooti’s lawyers’ submission to the Tribunal also acknowledged that he had not, at the beginning, mentioned that his family was being blamed for the fire on the land.  The lawyers also acknowledged that he had not mentioned escaping from the authorities who wanted to arrest him.  They said he failed to mention these matters at his initial interview because he was under a lot of pressure and felt very stressed.  He said he was very nervous at the time and was still anxious because of his lengthy trip to Australia.  He was told to be as brief as possible in this interview.  The additional information about the fire and the escape was put in his latest statement when he had more time to tell his story.

6                     The submission that the lawyers put before the Tribunal also contained information about the current situation in Iran.  It referred to the attitude of the Iranian authorities to people holding political opinions opposed to the Iranian authorities.  His lawyers argued that because he had been accused of lighting a fire on the land, he would be thought of as a person with anti-government opinions.  His lawyers argued to the Tribunal that Mr Shabooti would receive no protection from police or other government sources if he were returned to Iran.  They argued that as an Arab living in Iran he had already faced persecution at the hands of the authorities and they said that such treatment would continue or get worse if he were returned.   They then referred to the evidence of persecution of Arabs in Iran and argued that the fact that he had applied for refugee status in Australia would lead to him being persecuted when returned to Iran.

The Tribunal’s Reasons

7                     The Tribunal published its reasons for decision on 30 April.  It referred to the claims made and the evidence put before it by Mr Shabooti.  It referred to what he said in his interview on arrival and also what he said in support of his application for a protection visa.  Apparently before the hearing the Tribunal sent Mr Shabooti a notice pointing out that he had not mentioned anything about the fire when he was interviewed on arrival in Australia.

8                     The Tribunal then went on to refer to evidence given at the hearing itself.  It had asked him a number of questions about his evidence.  There was also a witness who had been called to give evidence in support of Mr Shabooti.  The witness said that his family and Mr Shabooti’s family are distantly related.  He said that the last time he saw Mr Shabooti he had escaped arrest by the police and was hiding in a village.  The police were looking for him.  He said he had gone to the village where Mr Shabooti was hiding and had visited him there.  He said he had last seen Mr Shabooti a few weeks before he, that is the witness, had left Iran.  The witness told the Tribunal that he saw Mr Shabooti after the fire incident.  Mr Shabooti, however, had told the Tribunal that he last saw the witness before the fire incident.  When the witness was asked about this, he said he had a bad memory because of the torture he had suffered.  This apparently was a reference to Mr Shabooti’s memory because the witness said he was not mistaken and Mr Shabooti must have been mistaken.  When Mr Shabooti was asked about this, he said that the witness had come to the village to see him.  He said to the Tribunal that the time he had seen the witness before this was some months before he left Iran.  The Tribunal asked him why he had not told the Tribunal about seeing his witness after the incident and Mr Shabooti said that he suffers from stress and memory loss. 

9                     In its findings and reasons, the Tribunal said that parts of Mr Shabooti’s evidence were inconsistent with each other and inconsistent with independent evidence.  The Tribunal accepted that he is a citizen of Iran and that he is an Arab and that before coming to Australia he lived in the town which he said he lived in.  It accepted that his family used to farm land and that they did so under something like a sublease.  The Tribunal accepted that the land was resumed and that the applicant’s family was unhappy about it.  It accepted that Mr Shabooti and his father and brother were involved in a confrontation.  The Tribunal accepted also that his father and brother were sent to gaol because of this.  It believed, however, that this punishment was suffered because they committed criminal offences and broke laws which applied to everybody.  There was no evidence before the Tribunal that the father or brother were punished because of any reason under the Refugee Convention.  That is to say, the Tribunal did not consider that the father and brother were punished because they were Arabs or because of their political opinions.

10                  The Tribunal also accepted that Mr Shabooti was detained for a short period of time because of this incident.  It did not believe his claim that he had threatened to sabotage or prevent work being carried out on the property.  If he had made such threats, it is unlikely that he would have been released after only a short period in detention.  The fact that he was detained for such a short period suggested that the Iranian authorities did not have any ongoing interest in him.

11                  The Tribunal then went on to consider Mr Shabooti’s claim that he left Iran because of the fire which had occurred on the resumed land.  It was not satisfied that he was of any interest to the Iranian authorities for that reason.  He had not mentioned it when he arrived in Australia and the Tribunal thought it unlikely that he would mention other parts of his reason for coming to Australia, but not that reason. 

12                  The Tribunal also referred to what Mr Shabooti told the delegate; that is, what he told the departmental officer who rejected his original application for a visa.  What he told the officer was that after he had escaped arrest he had gone back to work and had visited his father’s home.  Mr Shabooti denied that he had told the delegate this but the Tribunal listened to the tapes and were satisfied that he had.  Indeed, during the Tribunal hearing he told the Tribunal that he continued to work until his departure from Iran on more than one occasion.  The Tribunal thought that if he was really afraid of being arrested, he would not have gone either to his home or to his workplace.  Thirdly, it is noted that he left Iran through the airport using a passport in his own name.  The Tribunal considered that it would not be possible for a person who was wanted by the authorities to leave the country through the airport using a passport in their own name and the Tribunal did not accept that this could be overcome by payment of a bribe.  If he was genuinely in fear of being arrested the Tribunal did not think that he would have risked going through the airport.  The Tribunal also rejected the evidence of the witness.  The Tribunal said:

“Overall, I am of the view that the applicant was not suspected of involvement in the incident.  I do not accept that he was of any interest to the Iranian authorities at the time he left Iran, or that he is of any interest to them currently.  I am not satisfied that the applicant has a well-founded fear of persecution arising out of the incident to which he refers in his claims.  As I do not accept that the applicant was of any interest to the authorities at the time he left Iran, I do not accept that the authorities have been looking for him since that time.”

13                  The Tribunal went on to consider the possibility that he was suspected of being involved in the fire.  If he were at risk of being persecuted for that, the persecution must be for one of the five reasons under the Refugee Convention.  The Tribunal said that there was no evidence suggesting that Mr Shabooti was ever involved in any political activities or that his family was involved in any such activities.  It did not think that the Iranian authorities would think he had a political opinion against them simply because he was briefly detained on one occasion, nor did the Tribunal think it believable that the authorities would regard him as connected with an Arab political group which had sabotaged the buildings on the land in the past.  There was no suggestion that his family had done so and the Tribunal did not believe that Mr Shabooti himself had made any threats about it.  If he were to be prosecuted for arson on return to Iran, that is not a Convention reason for not returning him.

14                  The Tribunal also considered Mr Shabooti’s claim that he feared persecution because he is an Arab.  Despite the fact that he is an Arab, he has had many years of education.  He has served in the Iranian military and he has the right to vote.  He has also had employment in Iran from the time he finished military service until he left the country and although his family did not receive compensation when the land was resumed, there is nothing to suggest that that was because they were Arab.  The Tribunal accepted that many Arabs in Iran live in poor conditions.  It accepted that his family is not wealthy.  It did not follow that this would amount to persecution or would give rise to a well-founded fear of persecution.

15                  The Tribunal also considered whether or not Mr Shabooti would suffer because he was returned from Australia as an unsuccessful refugee.  It found that the independent evidence before it did not suggest that he would face any serious problems on that basis.

Application for Review

16                  An application to review the decision of the Tribunal was lodged in this Court on 14 May 2001.  When the hearing came on today, Mr Shabooti was represented by pro bono counsel, Ms Minchin.  An amended application was filed.  There were two grounds upon which the decision of the Tribunal was challenged.  The first ground, in substance, was that there was no evidence or other material to justify the making of its decision.  The second ground was that the Tribunal made a mistake in law in failing to consider whether Mr Shabooti faced persecution for a Convention reason because he is a member of a particular social group, namely, his family.

Grounds of Review

17                  In order to make out the ground that there is no evidence or other material to justify the making of the decision, there are two things which have to be established.  The first is that the person who made the decision based it on the existence of a particular fact and that fact did not exist.  The second is that the decision was dependent upon that fact being made out, that is to say, that that fact was critical to the decision.

18                  The application for review of the Tribunal’s decision set out a number of its findings as particular facts which it is said did not exist.  With all due respect, the approach disclosed in this ground is misconceived.  The non-existence of any particular fact found by the Tribunal is not demonstrated simply by argument about whether or not the Tribunal should have found that fact.  Ordinarily, as was said in Yilan v Minister of Immigration and Multicultural Affairs (1999) 55 ALD 600 at 603, the non-existence of a particular fact will be demonstrated by evidence.  That may be admissible evidence which is brought into Court on review.  It may be that it appears from the papers themselves as in the case of alleged inconsistencies in evidence which do not exist.  It is not sufficient simply to say that the Tribunal did not give adequate weight to particular evidence that was advanced by an applicant and that is what the argument advanced in support of the first ground amounts to.  That ground simply does not address what is required to be shown to make out that there was no evidence for the Tribunal’s decision.

19                  The second ground was that the Tribunal failed to consider whether Mr Shabooti was at risk of persecution because he is a member of his family.  It does not appear that any such argument was put to the Tribunal by Mr Shabooti’s lawyers but, in any event, the Tribunal found that the Iranian authorities had no current interest in Mr Shabooti and were not looking for him.  This was a finding that Mr Shabooti was not at any risk of persecution for any reason. That finding having been made, there was no reason to consider whether or not Mr Shabooti would be persecuted because he was a member of his family. 

20                  As I explained to Mr Shabooti at the beginning of the hearing, this Court cannot interfere with findings of fact by the Tribunal where those findings of fact are open on the evidence.  The argument put on behalf of Mr Shabooti has not demonstrated that there is any ground for reviewing the Tribunal’s decision.  The application for review will be dismissed with costs.

Associate:

Dated:              August 2001