Shahi v Minister for Immigration and Multicultural Affairs

[1999] FCA 1756

FEDERAL COURT OF AUSTRALIA

Shahi v Minister for Immigration & Multicultural Affairs [1999] FCA 1756

MIGRATION - protection visa - Minister refused application for such a visa - Refugee Review Tribunal affirmed that refusal - applicant claims persecution by Iranian authorities based upon his association with the Baha'i religion - credibility - adjournment - new evidence.

Migration Act 1958 (Cth), Part 8

Scott v Handley [1999] FCA 404 (referred)
Neil v Nott (1994) 121 ALR 148 (referred)
Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 (referred)
Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182 (referred)

MOHAMMAD SHAHI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 1119 of 1999

FINN J
SYDNEY
9 DECEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1119 OF 1999

BETWEEN:	MOHAMMAD SHAHI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	FINN J
DATE OF ORDER:	9 DECEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        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
NEW SOUTH WALES DISTRICT REGISTRY	N 1119 OF 1999

BETWEEN:

MOHAMMAD SHAHI

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

JUDGE:	FINN J
DATE:	9 DECEMBER 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application under Part 8 to the Migration Act 1958 (Cth) seeking review of a decision of the Refugee Review Tribunal ("RRT") affirming a decision of the Minister not to grant the applicant a protection visa. The Minister determined that the applicant did not have a well-founded fear of persecution.

2. The applicant, Mohammad Shahi, is of Iranian nationality.  He arrived at Brisbane Airport on 26 April 1999.  As the Tribunal found he departed Iran from Shiraz Airport.  His was an undocumented arrival and so he was interviewed by an Immigration inspector at the airport. 

3. The essence of the claim that he has made is really put in a statement in support of Part C of his visa application.  His stated fear was that the Iranian authorities would kill him if he returned to Iran because they believed that he had contacts with adherents to the Baha'i religion;  that he had engaged in activities against the Islamic revolution;  and that he had converted to Baha'i. 

4. In support of this he cited the assassination of a Baha'i friend of his and of that friend's father, as well as a raid on his own house and his arrest and mistreatment by the authorities.  It is fair to say that much of his claim before the Tribunal turned on his alleged association with Baha'i followers and his evolving adherence to Baha'i.

5. On the refusal of his application by the Minister Mr Shahi appealed to the Tribunal.  At that hearing he initially had legal representation.  The Tribunal affirmed the Minister's decision.  In its reasons it accepted the difficulties faced by members of the Baha'i community in Iran, however it considered there were significant problems with the applicant's credibility and in particular it was of the view that he had changed his evidence in material ways in the course of the processing of his application.

6. The Tribunal traced those inconsistencies and referred as well to other reasons why it considered his claims were undermined.  This is how it expressed its conclusions:

   "Having regard to the fact that the Applicant has changed his evidence in the manner set out above [in the reasons] to contradictions in his evidence regarding his supposed escape from arrest in February 1999, to the fact that I consider that the summons he has produced is not genuine and that it is implausible that a summons would have been issued to him in the circumstances he has described, and to the fact that I considered that it would not have been possible for him to leave Iran through an airport travelling on a passport in his own name if he had in fact been wanted by the authorities at the time, as he claims, I do not accept that the Applicant is telling the truth regarding the reasons for his departure from Iran.  I consider that he has fabricated his evidence regarding his arrest by the intelligence authorities in November 1998, his release on condition that he reported to them regarding the activities of his supposed Baha'i friend, his escape from arrest in February 1999, the summons that was supposedly issued two weeks later, and the manner in which he made his way through the airport and left Iran.

   Having regard to the view I have formed of the Applicant's credibility, I consider that he has fabricated his evidence regarding his friendship with an adherent of the Baha'i faith.  I do not accept that the Applicant ever had such a friend, that he was arrested with his friend in the summer of 1995, that his friend's father was killed by government agents in December 1997 or January 1998 nor that his friend was arrested at the same time as the Applicant supposedly escaped arrest, and has subsequently been killed by government agents.  I consider that the Applicant's claim to have had any association with the Baha'i faith in Iran and to have been accused of converting to the Baha'i faith or of propaganding the Baha'i faith is a complete fabrication.  I accept that the Applicant may have had some contact with people from the Baha'i organisation since he has been confined in the Immigration Detention Centre in Villawood and that they have given him books to read about the Baha'i faith.  However, having regard to the view I have formed of the Applicant's credibility I do not accept that he has converted to the Baha'i faith in his heart as he said at the hearings before me.  As set out [in the reasons], the Applicant only made this claim after the rejection of his application by the delegate of the Minister and I consider that he has made this claim purely out of self-interest and in an attempt to improve the chances of success of his application for a visa.  I do not accept that the Applicant has converted to the Baha'i faith nor that he has any genuine intention of converting to the Baha'i faith at any time in the future.  It is therefore unnecessary for me to consider the submissions of the Applicant's representatives regarding the treatment of apostates in Iran."

7. Accordingly, the application for review was rejected and the decision of the Minister was affirmed.

8. The applicant ceased to have legal representation during the hearing before the Tribunal and the Tribunal made accommodations for this reason.  Mr Shahi was unfortunately caught up in the closure of the firm Barlow & Company.  When he lodged his application for an order of review he was, and still remains, unrepresented.  The application form does not state any ground of review.  It merely indicates that "details will be sent later".  No such details were sent.

9. I should emphasise that it is an undoubted misfortune for Mr Shahi not to have legal representation, the more so given the circumstances in which that representation was lost.  Nonetheless, he has been without representation since August 1999.  This matter was set down for hearing at a directions hearing on 11 October 1999 for a date around today's date.  Mr Shahi sought an adjournment of the matter, an adjournment which I refused when it was asked for.  It did not seem to me in the circumstances that appropriate reasons had been advanced which would justify an adjournment nor that the refusal of an adjournment would involve a denial of procedural fairness or an injustice to him.  In so deciding I had regard generally to the statement of principles relating to the grant of an adjournment referred to by the Full Court of this Court in Scott v Handley [1999] FCA 404. I equally am conscious of the obligation imposed on trial judges when dealing with unrepresented litigants who are unable satisfactorily to present their own case. I refer in particular to the observations of the High Court of Australia in Neil v Nott (1994) 121 ALR 148 at 150.

10. It is clear as Mr Shahi presented his case that initially he was seeking what seemed to be no more than a merits review.  Such is impermissible.  To the extent that he was able to point to matters which he regarded as erroneous in the Tribunal's decision he referred to what he regarded as being errors in fact-finding by the trial judge.  It is questionable whether the errors to which he referred in fact reflect accurately the reasons of the Tribunal.  Be this as it may as Kenny J emphasised in her reasons for judgment in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 at para 146:

    "A Tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning."

    The matter to which Mr Shahi took me did not go beyond an alleged error in fact-finding.

11. Alternatively, and conscious of the difficulty he faced with the adverse credibility finding, Mr Shahi tried to have adduced fresh evidence to show that he was now supported by the Baha'i Association.  This evidence clearly was inadmissible.

12. The real difficulty he faced is of course challenging a credibility finding which was crucial to the rejection of the case he made.  As the Full Court of this court indicated in Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182 at para 9:

    "The task of a claimant in challenging, particularly under Pt 8 of the Act, adverse findings of the RRT in relation to credibility is formidable. The task may be even more difficult as a consequence of the recent decision in Minister for Immigration and Multicultural Affairs v Epeabaka in which the Full Court held that illogicality in reasoning of the RRT will not 'of itself' constitute an error of law." [references omitted]

13. It may be the case that some might consider the finding made by the Tribunal somewhat harsh in the circumstances and that a somewhat more sympathetic approach could have been taken to the inconsistencies that were revealed in his story.  I make no comment upon that.  What is clear is that the findings of fact that were made were reasonably open on the material that was before the RRT.

14. For this reason it cannot be said that the credibility finding itself betrays an error of law.  The effect of the Tribunal's findings of fact left it, as it acknowledged, with an inadequate factual foundation to be satisfied that the applicant had a well-founded fear of persecution and for that reason it rejected the application.  For my part I can discern no reviewable error in the Tribunal's reasoning and in the circumstances the order of the Court must be that the application be dismissed.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated:             20 December 1999

The applicant appeared in person
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 December 1999
Date of Judgment:	9 December 1999