Harirchi v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2001-04-27|Before: Mr J, Marshall J

REASONS FOR JUDGMENT 1 The applicant, Mr Nader Harirchi, is a citizen of Iran. He entered Australia illegally in July 2000 and has been held in immigration detention since that time. On 24 July 2000, Mr Harirchi lodged an application for a protection visa. On 11 September 2000, a delegate of the respondent refused the application. Mr Harirchi then applied to the Refugee Review Tribunal ("RRT") for a review of the decision of the delegate. On 31 October 2000, the RRT affirmed the decision of the delegate not to grant Mr Harirchi a protection visa. On 14 November 2000, Mr Harirchi applied to the Court for an order for review of the RRT's decision pursuant to Part 8 of the Migration Act 1958 (Cth) ("the Act"). 2 At the hearing of that application before the Court, Mr J Ludlow of counsel appeared for Mr Harirchi pursuant to the Court's pro bono assistance scheme. Mr M Ritter of counsel appeared for the respondent.

3 Mr Harirchi gave oral evidence at the RRT hearing. The salient points made in that evidence were as follows:

The findings of the RRT 4 The RRT found that Mr Harirchi undertook tertiary education in Iran and was engaged in remunerative professional work as an industrial designer for several years. The RRT was prepared to accept that Mr Harirchi was denied "some further educational opportunities that he desperately sought", while those less deserving were admitted to courses which he desired to undertake. The RRT viewed such action as discrimination against Mr Harirchi which did not amount to persecution for a Convention based reason. 5 The RRT was not satisfied that Mr Harirchi "ever encountered difficulty in seeking to advance his education for any Convention reason". It accepted that as Mr Harirchi is antagonistic to the Iranian government he would not seek employment in the public sector, but found that: "(h)is qualifications and experience ... provide a conduit to a variety of work in the private sector."

6 On the topic of imputed political opinion, the RRT found that Mr Harirchi had not supported the Mujahadeen party but "offered a limited amount of practical support to two friends". Those friends did support the Mujahadeen. The RRT noted that government officials did not take action against Mr Harirchi for being, or being suspected of being, a Mujahadeen supporter. It said that: "It is apparent that the authorities had ample opportunity to question the applicant and to take action against him if they were inclined to do so. The Tribunal concludes that the lack of official action against the applicant over a substantial period of time indicates he was not wanted by the authorities in relation to any Convention matter."

7 The RRT did not accept that Mr Harirchi would be "pursued by the authorities" for helping a friend leave Iran to go to Iraq. It found that that claim lacked credibility. It further found that it was "not satisfied that the applicant's friend was detained as the applicant has claimed".

8 Mr Hararchi claimed that his friend had taken six computer disks containing sensitive military information from his desk drawer. The RRT responded to that claim as follows: "The applicant did not make any timely mention of his friend having stolen sensitive material from him. That claim is central to the applicant's case as to why he might now be of adverse interest to the authorities. In view of the significance of the claim, the number of prior opportunities the applicant had to outline it, and the availability of legal and interpreting assistance to the applicant, the Tribunal finds it inconceivable that the claim would be altogether omitted for so long if it were true. It is apparent, contrary to the assertion of the applicant, that some questions in his initial interview provided clear invitations for the applicant to describe why he had fled from Iran. He furnished a range of detail in that regard. It is not plausible, nor reflective of several of his statements at the time, that he could have so misconstrued the purpose of his initial interview as to believe it was unconcerned with matters that went to his refugee status. The Tribunal has considered the explanations offered by the applicant as to why he made no timely mention of the theft of computer disks, and of the problems such an action could somehow expose him to in the future; it finds that they lack credibility. The applicant had several clear opportunities to take timely mention of those claims and the Tribunal finds it implausible in the particular circumstances of this case that he was prevented from doing so for so long due to his psychological condition or due to a question allegedly put to him by USA officials in Indonesia. The Tribunal concludes that in order to bolster his prospects of being declared a refugee the applicant has fabricated his claim of theft of computer disks belonging to him."

9 The applicant did not proceed with the original grounds in the application, but substituted three supplementary grounds. I will consider these in turn.

Particular social group and imputed political opinion

10 Mr Ludlow submitted that the RRT failed to consider whether Mr Harirchi was the subject of persecution directed at him by virtue of his membership of a particular social group. The group was described as: "very able persons who had political views or affiliations opposed to those of the government of Iran."

11 The difficulty with this submission is that Mr Ludlow did not identify any evidence before the RRT which truly pointed to the existence of such a social group, set apart from the rest of the community by some characteristic other than the fact of persecution uniting them.

12 What constitutes a "particular social group" for the purposes of the Convention was dealt with by the High Court of Australia in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 ("Applicant A"). Dawson J at 241 referred to "a particular social group" as:

"a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large". At 242 his Honour said: "...one important limitation which is, I think, obvious is that the characteristic or element that unites the group cannot be a common fear of persecution." At 263 McHugh J said that: "The concept of persecution can have no place in defining the term "a particular social group"." His Honour added shortly thereafter at 263 that: "... persons who seek to fall within the definition of "refugee" in Art 1A(2) of the Convention must demonstrate that the form of persecution that they fear is not a defining characteristic of the "particular social group" of which they claim membership… If it were otherwise Art 1A(2) would be rendered illogical and nonsensical. It would mean that persons who had a well-founded fear of persecution were members of a particular social group because they feared persecution. The only persecution that is relevant is persecution for reasons of membership of a group which means that the group must exist independently of, and not be defined by, the persecution." Further at 264, McHugh J said that: "The notion of persecution for reasons of membership of a particular social group implies that the group must be identifiable as a social unit. Only in the "particular social group" category is the notion of "membership" expressly mentioned. The use of that term in conjunction with "particular social group" connotes persons who are defined as a distinct social group by reason of some characteristic, attribute, activity, belief, interest or goal that unites them. If the group is perceived by people in the relevant country as a particular social group, it will usually but not always be the case that they are members of such a group. Without some form of internal linking or unity of characteristics, attributes, activities, beliefs, interests or goals, however, it is unlikely that a collection of individuals will or can be perceived as being a particular social group." 13 His Honour concluded his discussion of the topic of what constitutes a particular social group at 266 by saying that: "It follows that, once a reasonably large group of individuals is perceived in a society as linked or unified by some common characteristic, attribute, activity, belief, interest or goal which itself does not constitute persecution and which is known in but not shared by the society as a whole, there is no textual, historical or policy reason for denying these individuals the right to be classified as "a particular social group" for Convention purposes." 14 Mr Ludlow submitted that the existence of the particular social group, identified by him during his oral submissions as those with political views opposed to the government, was referred to in the evidence before the RRT contained in the submissions submitted to the respondent's delegate by Mr Harirchi's solicitor. 15 The submission of his former solicitors, Messrs Macpherson and Kelley, refers to Mr Harirchi as having an "imputed political profile of an anti-government activist". This was said to arise from "his financial support for the Mojahedeen (sic)". The gravamen of the submission appears to have been that Mr Harirchi was someone imputed with a "high political profile" that would be targeted on account of that profile. 16 None of the material referred to in the Macpherson and Kelley submission constitutes evidence of the existence of a particular social group of the sort alleged to exist by Mr Ludlow in the context of the meaning of "particular social group" as referred to in Applicant A. Indeed, the case before the delegate and before the RRT was not conducted that way. There was no obligation on the RRT to consider the point because there was no evidence upon which it could conclude that Mr Harirchi belonged to a particular social group. The RRT had no alternative but to focus upon whether Mr Harirchi, as an individual, had a well-founded fear of persecution. 17 The alleged persecution must be for a Convention based reason. There is no universal proposition that discrimination in access to education must amount to persecution. Whether any restriction in access to educational opportunities amounts to persecution will depend on the individual facts and circumstances. See Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260, 266-267 per Hill J by way of analogy on the topic of "employment opportunities". 18 The RRT in the instant matter determined on the basis of the material before it that the discrimination suffered by Mr Harirchi did not amount to persecution on account of an imputed political opinion. That was a finding of fact which was open to it. To invite the Court to look behind that finding of fact is essentially to request it to engage in an impermissible merit review of the RRT's decision.

Section 430 19 Mr Ludlow submitted that the RRT had failed to comply with s430 of the Act by not setting out all its findings on material questions of fact. He submitted that findings of fact were required to be made on three material issues on which there was evidence before the RRT. Those three issues were described as follows: "(a) the reason the University had refused to accept the medical report the Applicant had asked it to accept as his excuse for his absence from his bachelor's degree course whilst hiding from the authorities; (b) whether the lower mark the Applicant received in consequence of that refusal presented an obstacle to his furthering his education; and (c) whether the Applicant had later made any attempts to further his education, and if so, what those attempts had been, whether those attempts had failed, and if so, the reasons (or possible reasons) those attempts had failed." 20 None of the three issues identified by counsel may truly be described as a material question of fact. None of them is a substantial issue upon which the decision of the RRT turned. See Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845, (2000) 98 FCR 469 at [56] per Black CJ, Sundberg, Katz and Hely JJ, and Najarian v Minister for Immigration and Multicultural Affairs [2000] FCA 933, 175 ALR 695 at [13] per Merkel J. The RRT found that Mr Harirchi had been discriminated against in his attempt to further his education. Each of the three issues relied upon by Mr Ludlow were elements of Mr Harirchi's case before the RRT which supported a finding that such discrimination had occurred. None of them assist in determining whether that discrimination, as a matter of fact, amounted to persecution. The RRT committed no discernible breach of s430 of the Act in not making findings of fact on the three issues identified by Mr Ludlow.

Credibility 21 Mr Ludlow submitted that the RRT's determination was affected by its views concerning Mr Harirchi's credibility. I reject that submission. The RRT did not find all of Mr Harirchi's claims to be lacking in credibility. It had an adverse view of his credibility on the "computer disk" issue; the issue whether Mr Harirchi's friend was detained; and the issue whether Mr Harirchi would be sought by the authorities for assisting his friend to flee to Iraq. His other claims were largely accepted. 22 The RRT is entitled to form an adverse view of an applicant's credibility provided that such a view does not amount to actual bias. No allegation of actual bias was made. This alleged ground of error has disclosed no error of law. As McHugh J said in the Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1, (2000) 168 ALR 407 at [67]: "a finding on credibility ... is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed."

23 Mr Ludlow submitted that in the event the Court did not agree with the first two grounds of the applicant's submission, it would not be necessary for the Court to consider his submissions on the topic of credibility. However, I have considered the submissions on that issue out of an abundance of caution and lest the matter is taken further in the Court. Order It is appropriate to order as follows:

The application be dismissed.
The applicant pay the respondent's costs, including reserved costs, if any. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Counsel for the Applicant: Mr Ludlow (appeared pro bono)

Solicitor for the Applicant McAuliffe Williams & Partners

Solicitor for the Respondent: Australian Government Solicitor

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