FEDERAL COURT OF AUSTRALIA

Shiri v Minister for Immigration and Multicultural Affairs

ABDAL RAHMAN SHIRI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 227 of 2000

WILCOX J

5 JULY 2001

PERTH

THE COURT ORDERS THAT:

1.                  The application for review be dismissed.

2.                  The applicant pay the respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

WILCOX J:

1                     This is an application by Abdal Rahman Shiri for review of a decision of the Refugee Review Tribunal.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs not to grant to Mr Shiri a protection visa. 

2                     Mr Shiri is apparently of Kurdish ethnicity.  In his application for a protection visa, he stated he was an Iranian citizen.  He also said he was born in Baghdad, Iraq, that his father was Iranian and his mother was Iraqi.

3                     It seems to be clear that, in about 1980, when Mr Shiri was about 12 years old, the family moved from Iraq to Iran.  The circumstances of that move are not clear.  They may have been deported from Iraq.  They may have fled because of discrimination or civil strife. 

4                     Whatever the circumstances, Mr Shiri remained in Iran until 28 May 2000.  He said in his application for a protection visa that his departure at that time was from Teheran airport, using his own passport.  He also said in the application that he did not now have the passport, because he threw it out at sea.  Apparently, after leaving Iran, Mr Shiri made his way through Malaysia and Indonesia and onto a boat which came to Australia. 

5                     It seems to be clear that, prior to his departure from Iran, Mr Shiri held a senior position with an engineering company.  He is a qualified engineer with a university education.

6                     The Tribunal accepted much of the background information put before it by Mr Shiri.  This included the fact that his father was prominent in promoting Kurdish political causes, including for a separate Kurdish state.  The Tribunal also accepted that the applicant was identified, at least to some degree, as having his father's political profile.  However, according to the Tribunal:

“There is no evidence that the applicant faced consequences amounting to persecution due to his mixed ethnicity or his father's political background.”

7                     The reference to “mixed ethnicity” is apparently a reference to the fact that the applicant’s father was of Iranian nationality and his mother was Iraqi.  If so, the word “ethnicity” seems inappropriate, it seems both parents were of Kurdish ethnicity.  Whatever the position, the Tribunal’s finding is that there was no persecution by reason of the fact that the applicant was born in Iraq or that his father was known as a political agitator.

8                     The applicant said that, in March 2000, a strike occurred at the company where he was employed, because the workers had not been paid their wages.  He became involved in the strike and related it to the failure of the government - that is, the Iranian government - adequately to carry through political reform.  He said he was interrogated by members of the security forces over a period of a few days and detained for some 10 days.  This caused him to decide to leave Iran.  He did so, departing from Teheran airport without difficulty.

9                     The Tribunal was not satisfied about the truth of the alleged 2000 events, for a number of reasons.  They included variations in accounts of the events given by Mr Shiri at various times, and also an inconsistency between, at least, the first version given by Mr Shiri and a document dated 11 April 2000, which was provided to him by his employer, by way of what the Tribunal called “a work reference”.  The Tribunal concluded that Mr Shiri had fabricated his claims of being wanted by the authorities for a Convention reason. 

10                  The Tribunal dealt with some other matters which it suggested supported a conclusion that Mr Shiri was not a refugee.  One of these matters concerned treatment of people of Iraqi extraction in Iran.  The Tribunal also referred to a claim made by the applicant that, since he left Iran, his family home had been raided, various articles confiscated and his brother detained for one day for questioning.

11                  The Tribunal noted a claim, aired for the first time at the Tribunal hearing, that the whole of the applicant's family now faced deportation to Iraq.  The Tribunal also mentioned a claim, apparently also made for the first time at the hearing, that Mr Shiri did not depart Teheran airport on a legitimate passport, but rather on a false passport which he had procured by bribery.

12                  The Tribunal simply did not accept the elements of the claims made by the applicant which were fundamental to his application for refugee status. 

13                  The application for judicial review was argued, on behalf of the applicant, by Ms Anne Sheehan, I gather on a pro bono basis.  I express the gratitude of the Court to her for the time and trouble she has taken to consider the case from the applicant's point of view.  I do not accede to the particular points she has raised; but that does not reduce the Court’s indebtedness to those members of the Bar who give their time going through Tribunal decisions in order to see whether they demonstrate any error that may be reviewable by the Court under s 476 of the Migration Act 1958 and, if so, who put the argument before the Court.  The task of reviewing refugee decisions, without assistance from a lawyer acting on behalf of the applicant for review, is extremely onerous.  It assists the Court greatly to hear any possible argument even if, in the end, the Court concludes there is no reviewable error. The fact that the argument is rejected in no way lessens the Court’s appreciation for the Bar’s assistance.

14                  Essentially, two submissions were put by Ms Sheehan.  The first concerned the Tribunal’s finding that the applicant was an Iranian citizen.  As I have mentioned, the applicant himself so stated in his application for a protection visa.  It seems that application was drafted whilst the applicant was in detention at Port Hedland, but with the assistance of a lawyer and an interpreter.  As I have mentioned, the applicant is a well-educated, mature man, being some 32 years of age at the time of making the application.  He stated, quite unambiguously, that he was an Iranian citizen.  In response to another question the applicant said he was an Iranian citizen by birth, as distinct from having become an Iranian citizen at a later date. 

15                  At the hearing before the Tribunal, the applicant claimed to be confused as to his citizenship.  He referred to the turmoil that has occurred in the parts of Iran and Iraq containing significant Kurd populations.

16                  I can understand a degree of confusion.  It is reflected in some of the country information that was before the Tribunal.  Nonetheless, the Tribunal thought it proper to work on the basis that what the applicant originally stated was indeed the case.  It seems to me that course was open.  The applicant had said, and had not resiled from the statement, that his father was an Iranian citizen at the time of his birth.  This might be enough to give him Iranian citizenship, even though he was born in Iraq.  I do not know whether that is so.  What I do know is that Iranian citizenship was part of the case put before the Tribunal by Mr Shiri.  I do not think the fact that there was country information about confusion in respect of many Kurds required the Tribunal, as a matter of law, to depart from the basis upon which the applicant himself put his case.

17                  There is a question whether it really matters whether Mr Shiri is an Iranian citizen or not.  Upon the basis of the Tribunal’s finding any removal from Australia would be to Iran, not Iraq.  Ms Sheehan said it did matter; if he was not an Iranian citizen, then, on repatriation to Iran, there was a chance he would be deported to Iraq.

18                  One difficulty about this approach is that it raises an issue that was not put to the Tribunal by the applicant.  It is true the possibility of deportation to Iraq was mentioned in a throw-away comment in one written submission made by the applicant’s adviser, but the issue was not developed in any way.  The Tribunal member took the view that this risk of deportation did not arise, because of the applicant’s own statement that he was an Iranian citizen.  However, it seems to me that, even if there is some doubt about this, it was not necessary for the Tribunal to consider a case that had not been squarely put to it and which lacked factual underpinning.  There is nothing in the country material to suggest a current or recent policy of Iran deporting Iraqi Kurds back to Iraq.  The applicant’s own history demonstrates this is not a likely event.  Before the events which he claimed caused him to decide to leave Iran, the applicant lived in one place in Iran for some 20 years and held a senior position.  There is really no reason to believe there would be any prospect of him being sent to Iraq from Iran.

19                  Even if this is wrong, there is a problem, from the applicant’s point of view, in relating the error to a ground available under s 476 of the Act.  Ms Sheehan says that, in reaching the conclusion that it did, the Tribunal ignored relevant material, and thus fell into the jurisdictional error discussed in Minister for Immigration and Multicultural Affairs v Yusef [2001] HCA 30 at para 82.  I cannot agree with this.  The Tribunal did not ignore the relevant material.  It might be said the Tribunal got the wrong answer, as to the effect and significance of the material, but that is different from ignoring it.

20                  The other matter raised by Ms Sheehan concerned a letter that was submitted by the applicant to the Department of Immigration and Multicultural Affairs on 25 August 2000.  To put that matter into context, it is necessary to note that the application for a protection visa was lodged on 25 July 2000, he applicant was interviewed by a departmental officer on 30 July 2000, and the decision to refuse the protection visa was made on 1 September 2000. Shortly before that decision was notified, on 25 August 2000, the migration agents acting on behalf of the applicant forwarded to the Department a handwritten letter of the applicant dated 21 August 2000.  This letter alleged contact between the applicant and his family in Iran, in which the family indicated that, after the applicant’s departure, their house was raided and searched, some books were taken and his younger brother was detained for one day and questioned.

21                  The Tribunal hearing was conducted on 14 November 2000.  There was reference to this letter.  It is apparent from the transcript of the hearing that the Tribunal member, Mr Graham Brewer, was under the impression at that time that the claim made in the letter was a new claim, which had not been made before the protection visa application was rejected by the delegate.  As will be obvious from what I have said, this was an erroneous impression. 

22                  The decision of Mr Brewer was issued two days later, on 16 November.  In his reasons for decision, Mr Brewer referred to this claim in the following way:

“The applicant's claims of the family home being raided and materials confiscated and of a brother being detained arise from his claim of being wanted by the authorities due to his own support of industrial and political causes.  The Tribunal has found that the applicant was not detained or harassed by the authorities in ways he has claimed and that he was not of any interest to the authorities for any Convention reason at the time he left Iran.  It finds that further claims of official interest in him arising out of earlier judgments that were made about him are embellishments of false claims.”

23                  It will be apparent that Mr Brewer did not accept the truth of the matters set out in the letter prepared by Mr Schiri.  However, that is not Ms Sheehan’s complaint.  She says that Mr Brewer used his belief about the recent invention of the claims in the letter to draw adverse conclusions about Mr Shiri’s credibility.

24                  I do not think Mr Brewer did this.  I do not agree with the submission of Ms Sheehan that it is implicit in the paragraph, or implied elsewhere in the reasons, that the applicant was to be disbelieved because the claims in the letter were of recent invention.  Undoubtedly, Mr Brewer was under that impression during the hearing, but it is quite possible that, between the time of the hearing and the time that the decision was completed, Mr Brewer came across the letter in the file and realised it had been sent at an earlier point of time.

25                  It is true, as Ms Sheehan points out, that Mr Brewer did not expressly say that his earlier impression had been incorrect.  However, I think this is suggested by the structure of the reasons.  In setting out both the claims and his findings, Mr Brewer distinguished between claims and claims at the hearing.  The references to the letter fall into the first category. Mr Brewer’s statement that the claims in the letter represent a further embellishment have nothing to do with the time at which those claims were made, but rather their content.

26                  Once again, even if my reaction to Ms Sheehan's submission is incorrect, I have difficulty in relating this to any ground available to the Court under s 476.  It seems to me that, at the most, this is a criticism of a finding of fact.  I do not think it goes to jurisdictional error.  Ms Sheehan says the Tribunal ignored relevant material; namely, the fact that the applicant did put in a letter at an earlier time.  However, I think that the reference to ignoring relevant material is not a reference to ignoring a particular item of evidence but ignoring material pertaining to an issue.

27                  I repeat my gratitude to Ms Sheehan for the time and trouble she has expended on this case.  It has assisted me to reach a conclusion.  My conclusion is that there is no reviewable error and that the appropriate course is for the application to be dismissed with costs.  I so order.

Associate:

Dated:              6 July 2001