Shiri v Minister for Immigration and Multicultural Affairs

[2001] FCA 1588

FEDERAL COURT OF AUSTRALIA

Shiri v Minister for Immigration and Multicultural Affairs [2001] FCA 1588

MIGRATION  - whether reviewable error - no grounds of appeal identified

Migration Act 1958 (Cth) s 476

SHIRI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W297 of 2001

SACKVILLE, KIEFEL & HELY JJ
PERTH
8 NOVEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W297 OF 2001

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

BETWEEN:	ABDUL RAHMAN SHIRI APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	SACKVILLE, KIEFEL & HELY JJ
DATE OF ORDER:	8 NOVEMBER 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        Leave to amend the grounds of appeal is refused.

2.        The appeal is dismissed.

3.        The appellant pay the respondent’s costs of the appeal.

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	W297 OF 2001

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

BETWEEN:	ABDUL RAHMAN SHIRI APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	SACKVILLE, KIEFEL & HELY JJ
DATE:	8 NOVEMBER 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT:

1. The appellant was born in Iraq.  His family moved to Iran in 1980. His mother was born in Iraq and his father in Iran.  In his application for a protection visa he said that he was an Iranian citizen.  He is a Kurdish Faili and a Muslim Shia.  He arrived in Australia illegally in July 2000.

2. The details of the appellant’s background were largely accepted by the Refugee Review Tribunal.  He was an engineer and held a senior position with an engineering company.  His father had promoted Kurdish political causes and the appellant was identified, to some extent, with his father’s profile.  The Tribunal did not however consider that there was evidence showing that he faced persecution by reason of his background or his father’s political activities. 

3. Central to the appellant’s claims were events surrounding a strike by workers of the company which employed him.  It took place over four days in March 2000.  It was said to be a pretext for a political demonstration.  He said that he addressed the workers and condemned the government.  In his initial statement he said that after the strike he was interrogated by the security forces for some days and detained for ten days.  Threats were made because of his political actions.  They included the possibility of execution.  At the hearing he gave a different version of the timing of these events and of his going into hiding, which put them closer to the time of his departure from Iran on 28 May 2000.  The appellant also said, in his initial application, that he had remained employed until May 2000.  He produced a work reference from his employer dated 11 April 2000 and work certificate from his employer dated 8 May 2000. 

4. The Tribunal did not accept the appellant’s story about the role he played in the demonstrations during the strike or that he faced persecution at the hands of the authorities.  It had three reasons for this view:  the executive position that he held (we take this to refer to his distance from the workers);  the discrepancies in his accounts as to the timing of events;  and the fact that the work certificate issued during a period when he faced serious problems and, on his later evidence, when he was in detention.  This view was confirmed, to an extent, by the country information. 

5. The Tribunal found that the manner of the appellant’s departure from Iran also pointed to his claims being fabricated.  In his application for a protection visa he stated that he was an Iranian citizen by birth.  At the time he completed that application he had legal advice and the assistance of an interpreter.  He also said that his parents were nationals of Iran.  As the Tribunal noted he stated unequivocally that he used his own passport to depart from Iran legally through Tehran airport.  In answer to the question in the application form, as to whether he experienced difficulty in obtaining travel documentation in Iran, he answered in the negative. He claimed that he had later thrown his passport overboard when travelling to Australia. 

6. In the hearing before the Tribunal the appellant was adamant that he could not obtain a passport legally in Iran and that he left Iran on a passport which had been illegally issued by a friend who worked in the passport office.  He said that he had no right to a passport as he had not completed his military training and did not possess a genuine identification card.  The person who arranged for his passport also paid bribes to officials at the airport. 

7. The Tribunal considered this later evidence to be fabricated, and that the true version of events was that given in his application.  It added that independent evidence showed that there were tight controls on exit procedures in Iran and there was a list maintained of persons of interest to the authorities. 

8. The appellant claimed that his family’s house was raided after his departure from Iran and further that, shortly before the hearing, he received news that his family members are facing deportation to Iraq.  The Tribunal did not accept the claims relating to the raid, since it considered that he was not of interest to the authorities.  The appellant was, it observed, vague about the threatened deportation of his family and he had said nothing about it in the statement made by him two days before the hearing, nor in a submission lodged the day before.  He had said that he had heard of these matters a few days before the hearing but changed that to having heard of them perhaps the day before.  The Tribunal considered this to be a further embellishment of his claim. 

9. The Tribunal added that, since he was a national of Iran, no issue of deportation to Iraq arose.  It based that conclusion upon the information he had provided in his initial application.

10. Two submissions were made before his Honour the primary Judge.

11. The first submission challenged the Tribunal’s finding that the appellant was an Iranian citizen.  As his Honour pointed out, that course was clearly open to the Tribunal on the evidence.  The appellant had himself said that in his initial application.  The Tribunal was entitled to accept it as correct.  The Tribunal had not ignored relevant material in that process. 

12. An additional argument, that the appellant would in any event face the prospect of deportation to Iraq if he was removed from Australia to Iran, was rejected by his Honour.  It had not been raised before the Tribunal and there was no evidence in the country information to suggest such a policy.

13. The second submission concerned the recency of the claim concerning the raid on his family’s house after his departure. A letter had been submitted by the appellant to the Department of Immigration and Multicultural Affairs on 25 August 2000, shortly before the decision to refuse the visa was made. In it he made the claim about the raid. The Tribunal was referred to the letter during the hearing. The Tribunal was apparently under the mistaken impression that the claim had not been made before the protection visa application had been rejected by the Minister’s delegate. However, his Honour considered that the Tribunal did not base its conclusions about the appellant’s credibility upon any view that the claims in the letter were of recent invention. In any event, the submission amounted to no more than a criticism of a finding of fact and did not amount to jurisdictional error under s 476 Migration Act 1958 (Cth).

14. In his Notice of Appeal the appellant did not identify any ground for the appeal.  Written submissions and proposed amended grounds of appeal were provided by the solicitors acting for the appellant pro bono.  They are lengthy and largely unfocussed.  The task of identifying in them any ground of appeal or an argument which might be advanced is difficult.  The appellant’s counsel applied to amend the Notice of Appeal, but the proposed amended Notice of Appeal does not advance the matter any further.

15. Fundamentally, the submissions proceed on a misapprehension about the role of the primary Judge.  They inaccurately characterise his Honour’s decision as one not to grant the applicant refugee status.  The general complaint is then made that the decision of the primary Judge was not supported by evidence.  This complaint incorrectly assumes that his Honour was asked to make evidentiary findings. The submissions do not address the actual reasoning of his Honour about the Tribunal’s decision, in light of the two arguments put before him. 

16. The difficulty in applying the submissions about aspects of the evidence to the Tribunal’s decision is that they do not identify any error of law.  At one point the submissions attempt to provide an explanation as to why the appellant might have been mistaken in his evidence about the timing of events after the strike.  These are matters relevant to the finding of credit which was a matter for the Tribunal. 

17. In relation to the issue concerning the appellant’s citizenship, it was submitted that his Honour formed the view that “it was proper to work on the basis that what the applicant had originally stated in his application form was correct”.  His Honour’s comments were, of course, directed to the approach taken by the Tribunal.  His Honour, correctly in our respectful view, held that the Tribunal was entitled to act on the evidence in that way and that, accordingly, no ground for review had been disclosed. 

18. The balance of the submissions contain general statements about a lack of political freedom in Iran and restate the appellant’s case.  They appear to seek a reconsideration of the merits of the case by this Court, which is not permissible.  They do not address the decision appealed from. 

19. The Court has considered his Honour’s reasons and can detect no error in them.  No ground of appeal has been disclosed. 

20. We regretfully add that, whilst the Court of course remains grateful to firms, including Minter Ellison, which offer their services pro bono, it is not assisted by notices of appeal which contain no ground based in law nor by discursive argument not addressed to the decision appealed from.

21. Leave to amend the grounds of appeal is refused. The appeal will be dismissed with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sackville, Kiefel and Hely .

Associate:

Dated:             8 November 2001

Counsel for the Applicant:	Ms T Jeyamohan
Solicitor for the Applicant:	Minter Ellison
Counsel for the Respondent:	Mr M Ritter
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 November 2001
Date of Judgment:	8 November 2001