Ahmad-Abad v Minister for Immigration and Multicultural Affairs

[2001] FCA 1261

FEDERAL COURT OF AUSTRALIA

Ahmad-Abad v Minister for Immigration and Multicultural Affairs [2001] FCA 1261

IRAJ PEESHKARI AHMAD-ABAD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO S 9 OF 2001

O’LOUGHLIN J
ADELAIDE
17 MAY 2001

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 9 OF 2001

BETWEEN:	IRAJ PEESHKARI AHMADABAD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	O’LOUGHLIN J
DATE OF ORDER:	17 MAY 2001
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

The application be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S9 OF 2001

BETWEEN:	IRAJ PEESHKARI AHMADABAD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	O’LOUGHLIN J
DATE:	17 MAY 2001
PLACE:	ADELAIDE

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant is a citizen of Iran who arrived in Australia on 24 February 2000.  He applied for a protection visa with the Department of Immigration.  He was interviewed by an officer of the department, but his application was unsuccessful.  He asked that his application be reviewed by the Refugee Review Tribunal (“the Tribunal”).  The Tribunal reviewed his application but again he was unsuccessful.  He has now asked this court to review the decision of the Tribunal.

2. Mr Pishkari is a Kurd and a Sunni Muslim.  As a citizen of Iran, Kurds are in the minority and Sunni Muslims are also in the minority.  The dominant religion in Iran is Shiite Muslim.  In 1982 Mr Pishkari was called up for compulsory military service.  He managed to avoid that by using papers that falsely identified him as the eldest son of his family who were dependent upon him.

3. He said in his appearance before the Tribunal that first of all, he was a Kurd; secondly, he was a draft dodger; thirdly, that he participated in 1999 in a demonstration which had been videotaped by the authorities, and that he feared he would be identified as a demonstrator by the authorities.  He also said to the Tribunal that if he were to be returned to Iran, the authorities would be annoyed with him because he had illegally left Iran and applied for refugee status in Australia, and further because he had used false papers and avoided military service.

4. He also told the Tribunal that he had a cousin who was a member of the Democratic Party of Kurdistan and that he, Mr Pishkari, supports the Kurdish Movement for Independence.  He said that he has written articles promoting Kurdish cultural movements.  He said also that he was a person who was involved with a group of Kurdish people fighting for their cultural identity.  He said that all of these matters placed him at risk of persecution if he were to be returned to Iran and that he would be persecuted for three reasons:  his race, his religion and his political opinion.

5. The Tribunal in its reasons, after stating the claims that Mr Pishkari had made, referred to information about Iran that had been published by various authorities throughout the world.  This country information, to which the Tribunal referred, pointed to a long history of repression of the Kurdish people by the Iranian authorities.  There are two main reasons for this:  in the first place the Kurds are Sunni Muslims, whilst the overwhelming majority of Iranians are Shiite Muslims; secondly, repression has been a reaction to the Kurdish movements for autonomy.  These two reasons have led to human rights abuses from time to time.

6. When the Tribunal considers an application for refugee status by an Iranian citizen who is a Kurd and a Sunni Muslim, those two factors that I have just discussed can never be overlooked.  However, there are two other factors that cannot be ignored.  Firstly, there has been some attempt by the Iranian authorities to bring about some form of reconciliation with the Kurds.  An example of this is the recent appointment of a Kurd by the Iranian authorities to be the Governor of Kurdistan.  The second factor that must be borne in mind is that there are about 5 million Kurds in Iran and up to 10 per cent of the population in Iran are Sunni Muslims.

7. The country information points to repressive conduct being directed only to Kurds who pursue an active course of conduct against the government.  A Kurdish person may be the victim of discrimination such as being denied entry into the professions or into government, but that sort of second-class treatment does not amount to persecution.  Despite the sad circumstances of the Kurdish people, the question that is to be asked is whether Mr Pishkari was or will be the victim of persecution because of his race, religion or political opinion.

8. That question could be answered “yes” if the Tribunal reasonably thought that Mr Pishkari was a political and active separatist, because the Tribunal accepted that Kurds with an active political profile suffer harshly in Iran.  But the Tribunal correctly said that not all Kurds in Iran suffer persecution.  At the time when Mr Pishkari made his application for refugee status, he made no claim that he had political activity in Iran.  Those claims about his cousin and his cultural writings only came after the departmental officer refused his application.

9. The Tribunal was aware of the difficulties that Mr Pishkari faced, but it concluded against Mr Pishkari’s interest.  It did not accept him as a Kurdish activist.  In coming to that decision the Tribunal listed the inconsistencies in the Mr Pishkari’s stories.  On the basis of these inconsistencies the Tribunal was entitled to doubt the applicants account.  I cannot identify any error in the reasoning of the Tribunal; it was entitled on the basis of those inconsistencies to conclude the applicants claim were largely fabricated to bolster his claim for refugee status.

10. The applicant says if he was returned to Iran it would lead to him being identified as a draft dodger and as a person who used false papers.  If that is correct – and I do not know that it is correct – and if he is punished, he will be punished because he broke the civil laws of Iran that apply to all people in Iran.  That punishment would be because he broke the law, and there is no reason to believe that the punishment would be because of his race, religion or political opinion.

11. They are my reasons for coming to the conclusion that his application must be dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Loughlin .

Associate:
Dated:             17 May 2001

The Applicant appeared in person:
Counsel for the Respondent:	Ms Sashi Maharaj
Solicitor for the Respondent:	Spark Helmore
Date of Hearing:	17 May 2001
Date of Judgment:	17 May 2001