WAAC v Minister for Immigration & Multicultural & Indigenous Affairs

introduction 1 This is an appeal from a decision of a Federal Magistrate given on 11 July 2002. His Honour's decision was to dismiss the appellant's application for an order of review of a decision by the Refugee Review Tribunal, made on 10 September 2001, to affirm a decision of a delegate of the respondent not to grant to the appellant a protection visa. The Chief Justice, acting under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) directed that the appeal be heard by a single judge.

factual and procedural background 2 The appellant arrived in Australia by boat without any visa documentation on 18 December 2000. When initially interviewed by an officer of the respondent's department, on 29 December 2000, he claimed that he was a citizen of Iran born in that country in Ahvaz, Khozistan. 3 On 1 June 2001, the appellant made an application for a protection visa. In the papers supporting that application the appellant claimed that he was born in Alashar, a suburb of Basra in Iraq, where he had lived until the age of about eight when the family was forced to leave Iraq because their ancestors were Iranian. This was shortly before the outbreak of the Iran-Iraq war. The appellant claimed that he could not live a normal life in Iran, being always under pressure of being deported to Iraq. He made other claims which, at this stage, it is not necessary to describe. 4 On 27 June 2001, the respondent's delegate made a decision refusing to grant a protection visa to the appellant. On 2 July 2001, the appellant applied to the Tribunal for review of that decision. 5 On 13 July 2001, the Tribunal wrote to the appellant, pursuant to s 424A of the Migration Act 1958 (Cth) ("the Act"), advising him that it had information which would, subject to any comments which he might make, be the reason or part of the reason for deciding that he was not entitled to a protection visa. In summary, the matter raised in that letter was the difference between the claims made by the appellant at the initial interview, including the fact that he was an Iranian citizen born in Ahvaz, and those made in his application for a protection visa. 6 The appellant's explanation was that he had feared being returned to Iraq if he admitted his true nationality. He had been persuaded by a fellow traveller on the boat en-route to Australia to state on his arrival that he was an Iranian. He was concerned that the Australian authorities might alert the Iraqi authorities and that if he were extradited back to Iraq he would face persecution (or worse) there because he had been resident in Iran for many years and was a Shi'a muslim. 7 The Tribunal conducted an oral hearing by video-link on 19 July 2001 and 24 July 2001 at which the appellant gave oral evidence which was similar to the claims made in respect of his application for a protection visa. In summary, he said that he left Iran because of very limited employment opportunities, not being permitted citizenship and constantly living in fear that at any time he could be sent back to Iraq where he could face the death penalty. 8 The Tribunal asked the appellant about documentation issued by the Iranian authorities to Iraqis who were deported from Iraq to Iran because they were considered to be Iranian. These were referred to as "Green Cards". There was evidence that a Green Card entitled a person to work and live indefinitely in Iran. The appellant said that his family had been issued with Green Cards. He also mentioned a card which he had used to travel from one point to another in Iran which would show that he was Iraqi. I shall refer to that card as "the Travel Card". The appellant told the Tribunal that he would try to get the original of that card. 9 The Tribunal said that, after taking into account the two months in which the appellant had advice from a firm of solicitors, it was only prepared to grant a further 20 days for him to obtain the Travel Card. His solicitor, who was at the hearing, agreed that that was reasonable. 10 On 10 August 2001, a different solicitor from the same firm wrote to the Tribunal asking for a further extension as she had not received tapes of the delegate's hearing which the appellant was apparently sending to her. On 13 August 2001, the Tribunal responded by saying that it would not be making its decision until 20 August 2001 and would take into account anything sent in that period. 11 On 14 August 2001, the appellant's solicitor wrote to the Tribunal requesting, as citizenship was in question, that it either obtain or provide the solicitor time to engage the services of a "cultural assessor" to provide an opinion in regard to the appellant's nationality or citizenship. 12 The Tribunal responded by rejecting that request and giving its detailed reasons. 13 Rather than attempt to summarise the Tribunal's findings and reasons for affirming the delegate's decision I set them out in full below. "FINDINGS AND REASONS Over the period of the application the Applicant has variously claimed to have been an Iranian citizen and an Iraqi citizen living Iran (sic). While he has consistently claimed to be of Arabic ethnicity the first question before me is whether or not he is a citizen of Iran or of Iraq. Although he has made claims against Iran when he first arrived he has effectively resiled from those claims and rests his claim to have a well-founded fear of persecution against Iraq and that he can not return to Iran and have effective protection against the harm he claims to face in Iraq. In determining this matter I have firstly, considered what nationality/citizenship the Applicant holds. I have then considered his claims in regard to that country to the extent that he has made them. The Applicant's Nationality. The Applicant has given two conflicting accounts in regard to his nationality. On arrival he provided a name and an account of being an Arabic man of Iranian ethnicity. The claims he provided were such that he was assessed as not having made claims that would bring his case within the ambit of the Convention. In fact, the only claim he made in respect of the Convention was that he was of Arabic ethnicity and was discriminated against on that basis. However, if the claims are considered. His education, his position as a grocery shop proprietor and his situation which is based on his speculation rather than any actual adverse consequences this does not amount to persecution. In any event, the department screened him out and no further action was taken in his matter. In evidence taken at the hearing, through questioning conducted by his representative the Applicant stated that in April 2001 he had informed a migration agent, Dr. Al Jabiri, that he was an Iranian national. This means that about four months after his interview of 29 December 2001 he was still claiming to be an Iranian citizen and still using the name he entered Australia under and had lodged no different claims for consideration. In June, six months after he arrived in Australia, the Applicant changed his account and claimed to be an Iraqi national of a different name to that he originally provided, living for over twenty years in Iran without status and without rights in Iran and with the potential of being expelled into Iraq. This raises serious concerns as to the veracity of his claims and his credibility. I put this to him in a letter under the terms of s.424A and he replied that he had provided this account because he feared he would be deported from Australia and be sent to Iraq if he had provided that as his country of nationality. I consider that this is illogical since he claimed in his protection visa application that he had forfeited any right to re enter Iran, and thus, if he was Iraqi, the only place he could go from there would be Iraq so nothing would be gained by claiming to be a citizen of Iran rather than Iraq. Further, I am of the opinion that it was obvious to him before he communicated with Dr. Al Jabiri that his claims were unsuccessful. I am therefore of the opinion that he would have provided an accurate and genuine account to Dr. Al Jabiri in April if that account was factual. I find that the Applicant informed Dr. Al Jabiri that he was an Iranian citizen because that is his nationality and not for any other reason. Although his current representative has claimed that the evidence in regard to his admission to Dr. Al Jabiri should be disregarded because of the manner in which the department came by it. I am not persuaded that this would be appropriate, and in any event this evidence came to the Tribunal directly through the Applicant and his representative at the hearing. The Applicant has also claimed that he had been born in Al Basra, in southern Iraq and remained there until he was eight or nine years of age. He claimed to have left when the area was still at peace and prior to the conflict between Iran and Iraq. He was able to provide no information of any significance about Al Basra or name any features or landmarks in the city. The river he named does not appear on any maps I have considered and variations of the name do not create any hits on internet sites. The fact that the Applicant countered almost every question in this regard with "I don't remember", and his demonstrated inability to provide any information about the city he claimed to have lived in until the age of eight or nine, an age when childhood memories can reasonably expect to be lasting, leads me to find that the Applicant did not live in Al Basra as he has claimed. In summary, the Applicant initially claimed to be a citizen of Iran and of Arabic ethnicity. His claims at that time did not bring him within the ambit of the Convention and the claimed harassment and discrimination he suffered was not at a level to prevent him from enjoying any basic human rights. If his account was factual he was able to study, work, open a small business and support himself, to travel and to return to Iran. This being the case, he did not suffer harm amounting to persecution. However, he has resiled from those claims and claimed to be an Iraqi citizen who has no status in Iran. Having carefully considered those claims and given the Applicant every opportunity to respond to the doubts I hold in that regard I am not satisfied that he is an Iraqi citizen and find that his nationality is Iranian. As has been discussed above, I am unable to be satisfied that he has a well-founded fear of persecution in his country of nationality, Iran as I find that he does not face a "real chance" of persecution in that country, and accordingly any fears he may hold in that regard are not well-founded. CONCLUSION Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s 36(2) of the Act for a protection visa."