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[2001] FCA 1910
respondent. The application for review be dismissed. The applicant pay the respondent's costs of the proceeding.
A Kurdish engineer from Iran claimed he would be persecuted if returned because of his father's political activity and his own role in a 2000 strike. The Tribunal did not believe the key parts of his story and refused his refugee visa. He asked the Federal Court to set that decision aside, arguing the Tribunal had wrongly assumed he was Iranian and had mishandled a letter about raids on his family. The judge ruled the Tribunal had considered all the claims that were properly put to it, made no legal mistake that the Court could correct under the limited review powers in s 476, and dismissed the case.
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Abdal Rahman Shiri, a qualified engineer of Kurdish ethnicity born in Baghdad to an Iranian father and Iraqi mother, lived in Iran from about 1980 until 28 May 2000. At paragraph 5 the judgment records that he held a senior position with an engineering company. In March 2000 a strike broke out at his workplace over unpaid wages. Mr Shiri linked the strike to broader demands for political reform and claimed he was interrogated over several days and detained for about 10 days. These events, he said, caused him to leave Iran. He travelled via Malaysia and Indonesia before arriving in Australia by boat.
No linked legislation citations have been extracted yet.
On 25 July 2000 Mr Shiri lodged an application for a protection visa in which he described himself as an Iranian citizen by birth. A delegate refused the application on 1 September 2000. Shortly before that refusal, on 25 August 2000, migration agents forwarded a handwritten letter dated 21 August 2000 in which Mr Shiri reported that after his departure his family home had been raided, books confiscated and his younger brother detained for one day of questioning. The Refugee Review Tribunal conducted a hearing on 14 November 2000 and published its decision on 16 November 2000 affirming the delegate’s refusal. The Tribunal accepted that Mr Shiri’s father had been prominent in Kurdish political causes and that the applicant shared some of that profile, but found there was no evidence he had faced persecution on account of mixed ethnicity or his father’s activities. Critically, at paragraph 9 the Tribunal rejected the 2000 strike-related claims as fabricated, citing inconsistencies in Mr Shiri’s accounts and an inconsistency with an employer’s work reference dated 11 April 2000. The Tribunal also disbelieved later claims that the whole family faced deportation to Iraq and that Mr Shiri had left Iran on a false passport obtained by bribery.
Mr Shiri then applied to the Federal Court under s 476 of the Migration Act 1958 for judicial review. Anne Sheehan appeared for him pro bono. Two principal arguments were advanced: first, that the Tribunal erred by treating Mr Shiri as an Iranian citizen and failing to consider the risk that, if he were not, Iran might deport him to Iraq; second, that the Tribunal had used an erroneous belief that the August 2000 letter contained a recently invented claim to bolster an adverse credibility finding. Wilcox J dismissed the application on 5 July 2001, ordering Mr Shiri to pay the Minister’s costs. The reasons occupy 27 numbered paragraphs and turn on the limited grounds of review available under s 476 and the principle that only claims squarely put to the Tribunal need be considered.
Wilcox J’s reasoning rests on three interlocking propositions, each grounded in the text. First, the Tribunal was entitled to proceed on the basis of Mr Shiri’s own unambiguous statement, made with legal and interpreter assistance while in detention at Port Hedland, that he was an Iranian citizen by birth. Paragraph 14 notes that he was 32, well-educated and had not resiled from that statement. The judge accepted at paragraph 16 that, while country information showed confusion about citizenship for many Kurds, this did not oblige the Tribunal as a matter of law to depart from the case Mr Shiri himself had put.
Second, the alternative case that non-Iranian citizenship might lead to deportation from Iran to Iraq had not been squarely raised. Paragraph 18 records that the possibility appeared only in a “throw-away comment” in one written submission and was never developed. The Tribunal’s finding that removal would be to Iran was therefore open. Moreover, Mr Shiri’s own history of 20 years’ uninterrupted residence and senior employment in one place in Iran provided affirmative evidence against any real prospect of deportation. The Court therefore held that the Tribunal was not required to address an unarticulated factual hypothesis.
Third, the complaint about the August 2000 letter did not disclose jurisdictional error. The Tribunal member initially thought at the hearing that the claims in the letter were new, but the structure of the published reasons shows they were treated as part of the original claims and rejected on their merits as “embellishments of false claims” (quoted at paragraph 22). Wilcox J concluded at paragraph 25 that the rejection turned on content, not timing. Even if the member had carried an erroneous impression forward, that was at most a factual error. Paragraph 26 expressly states that criticism of a finding of fact does not engage the grounds in s 476. Citing Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at para 82, the judge held at paragraph 19 that the Tribunal had not ignored the letter or the country information; it had simply assessed their significance differently from the way Mr Shiri contended. Because the error alleged was not jurisdictional, the application had to be dismissed.
Throughout the reasons Wilcox J returns to the statutory limits on review. The Court’s task was not to decide whether Mr Shiri was a refugee but whether the Tribunal’s process disclosed error of the narrow kind s 476 permitted in 2001.
Before this decision the law on judicial review of Refugee Review Tribunal decisions was in a state of transition. The High Court’s decision in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, handed down only weeks earlier on 31 May 2001, had clarified that a Tribunal’s failure to consider relevant material could constitute jurisdictional error. Paragraph 19 of Wilcox J’s reasons expressly invokes Yusuf at para 82 for the proposition that ignoring relevant considerations vitiates a decision. However, Yusuf also emphasised that mere errors in the evaluation or weighting of material do not amount to jurisdictional error. Shiri applies that distinction directly: the Tribunal considered the citizenship country information and the August 2000 letter but reached conclusions about their significance that differed from those urged by the applicant. That evaluative difference was held not to be jurisdictional.
Section 476 in its pre-privative clause form limited the Federal Court to specified grounds, excluding ordinary merits review. Wilcox J’s insistence at paragraphs 18, 19, 26 and 27 that unarticulated claims or factual disagreements fall outside those grounds reinforced the narrow construction of s 476 that prevailed before the 2001 amendments. The decision therefore sits at the end of one statutory regime and illustrates the continuing vitality of the principle that an applicant must put a case with sufficient clarity before a decision maker is obliged to deal with it.
After Shiri the law moved in two directions. The insertion of a privative clause in s 474 and the subsequent High Court decisions interpreting it expanded the concept of jurisdictional error, yet the requirement that claims be “squarely raised” survived and was reiterated in later authorities. The distinction drawn in Shiri between ignoring material and mis-evaluating it remains a live boundary in contemporary jurisprudence concerning the limits of judicial review of protection visa decisions. The emphasis on the need for factual underpinning before a Tribunal must address a hypothesis also continues to be applied where applicants seek to raise new risks on review.
Paragraph 16: “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.”
Plain English: Just because background reports show many Kurds are unsure about their citizenship does not force the Tribunal to ignore what this particular, educated applicant repeatedly told them in his visa application.
Paragraph 18: “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.”
Plain English: The reports the Tribunal had did not show Iran was sending Iraqi Kurds home, and the fact that Mr Shiri had lived and worked successfully in Iran for 20 years made it unrealistic to think he would suddenly be deported.
Paragraph 19: “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.”
Plain English: The Tribunal read everything it was given. Disagreeing with what Mr Shiri’s lawyer says the material means is not the same as pretending the material did not exist. Only the latter is a legal mistake the Court can fix under s 476.
Paragraph 25: “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.”
Plain English: The Tribunal rejected the letter because it thought the story was made up, not because it thought the letter had been sent late. Timing was not the reason for the adverse finding.
Paragraph 26: “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.”
Plain English: Arguing about whether the Tribunal remembered exactly when a letter arrived is just an argument about the facts. Section 476 does not let the Court overturn decisions simply because the judge thinks the Tribunal got the facts wrong.
Shiri is triggered when an applicant for judicial review of a protection visa decision seeks to recast the case on review by advancing a factual hypothesis that was mentioned only obliquely or in passing before the Tribunal. The precedent applies where the applicant’s own documents contain an unambiguous statement (here, Iranian citizenship by birth) and the alternative scenario (deportation from Iran to Iraq) is not developed with country information or submissions that give it factual grounding. It is also engaged where a complaint is made that the Tribunal used an erroneous impression about the timing of a claim to damage credibility, yet the published reasons show the claim was rejected on its substantive merits rather than its lateness.
The decision is apt whenever counsel attempts to transmute a disagreement about the weight or significance of country information or a particular document into a Yusuf-style “ignoring relevant material” argument. Fact patterns in which the applicant is well-educated, has access to legal assistance when completing the visa application, and has a lengthy, stable residence in the country of claimed nationality are particularly likely to engage the principle that the Tribunal may lawfully proceed on the case the applicant has actually presented. Conversely, the case does not assist an applicant who has clearly and repeatedly articulated a risk throughout the administrative process and can point to specific material that the Tribunal’s reasons never mention.
Although the source judgment does not itself cite subsequent authority, its propositions have been absorbed into the mainstream of migration jurisprudence. The insistence that only claims “squarely put” need be addressed has been reiterated in numerous Federal Court and High Court decisions dealing with the content of the Tribunal’s statutory obligation to review. The distinction drawn at paragraph 19 between ignoring material and reaching a wrong conclusion about its significance is routinely cited as an orthodox application of Yusuf. Courts have treated the reasoning at paragraphs 17–19 as confirming that a Tribunal’s choice to act on an applicant’s own statement of nationality is open unless the alternative nationality case is affirmatively developed with evidence.
The pro bono observations at paragraph 13 have been referred to in later cases as illustrating the Court’s appreciation of the practical burden placed on judges when applicants appear unrepresented. The narrow construction of “ignoring relevant material” in paragraphs 26–27 has been used to reject attempts to dress up factual disputes as jurisdictional errors, particularly in credibility findings linked to post-departure events. Overall the decision is treated as an early, clear illustration of the limits of s 476 review in the immediate post-Yusuf period and continues to be cited for the proposition that an applicant cannot complain on judicial review about a case that was never properly put to the Tribunal.
The judgment leaves open whether, in a case where the risk of deportation from the country of residence to a third country is squarely raised with supporting country information, the Tribunal would be obliged to make a finding about the applicant’s nationality even if the applicant had earlier described himself as a citizen of the country of residence. Wilcox J expressly disclaims deciding the citizenship question as a matter of Iranian law (paragraph 16) and notes at paragraph 17 that the point “may” matter if removal to Iran would lead to onward deportation. That issue remains for future cases in which the factual foundation is stronger.
A further open question is the precise point at which an impression formed during a hearing but corrected before publication of reasons crosses the line into jurisdictional error. The judge was prepared to infer at paragraph 24 that the member had realised the letter predated the delegate’s decision, but left open whether an explicit correction would have been required had the reasons still contained language suggesting recent invention. The boundary between an immaterial slip and a material misapprehension that infects the credibility assessment is not exhaustively drawn.
Finally, the decision assumes that the absence of any current policy of deporting Iraqi Kurds (paragraph 18) is decisive. Whether changed country circumstances after 2001 could revive that risk and require a fresh assessment was not before the Court and remains a live practical question for practitioners advising clients whose profiles match Mr Shiri’s. These unresolved edges demonstrate why Shiri remains a useful but not exhaustive guide for counsel preparing protection visa reviews.
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.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.
Solicitor for the Respondent: Australian Government Solicitor
Shiri
Minister for Immigration and Multicultural Affairs
The application for review be dismissed. The applicant pay the respondent's costs of the proceeding.