ABT15 v Minister for Immigration

[2015] FCCA 1051

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABT15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1051

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa –relevant considerations – whether ‘giving no weight’ to a document for an erroneous reason amounts to a failure to consider relevant material – jurisdictional error.

Legislation: 

Migration Act 1958 ss.476

Minister for Immigration and Citizenship v SZNPG (2013) 212 FCR 99; (2010) 115 ALD 303
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123

Applicant: ABT15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent REFUGEE REVIEW TRIBUNAL

File Number: SYG 491 of 2015

Judgment of: Judge Street

Hearing date: 22 April 2015

Date of Last Submission: 22 April 2015

Delivered at: Sydney

Delivered on: 22 April 2015

REPRESENTATION

Solicitors for the Applicant: Mr N. Dobbie
Dobbie and Devine Immigration Lawyers Pty Ltd

Counsel for the Respondent: Mr G. Johnson

Solicitors for the Respondent: Minter Ellison

ORDERS

1. A writ of certiorari shall issue removing the record of the Refugee Review Tribunal decision made on 28 January 2015 into this Court for the purpose of quashing it.

2. A writ of mandamus shall issue requiring the Refugee Review Tribunal to re-determine the review application before it according to law.

3. The First Respondent pay the Applicant’s costs fixed in the sum of $6646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 491 of 2015

ABT15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal dated on 28 January 2015 affirming the decision not to ask the applicant a Protection (class XA) visa. 

2. The grounds of the application are as follows:

   1. The Tribunal failed to discharge its core function to review the decision

   Particulars:

   (i) The Tribunal failed to discharge its core function to review the delegate's decision because it did not have proper regard to the letter from the Governor's Office of Yazd Province, dated 30 December 2014 ('the Governor's letter'), being evidence corroborative of the Applicant's claims.

   (ii) The Tribunal failed to discharge its core function to review the delegate's decision because it did not have proper regard to the letter from the Applicant, dated 5 January 2015 ('the Applicant's letter').

   (a) The Tribunal stated at [38) of its decision:

   38. I also place no weight on the letter provided in the post-hearing submission in which the email address has been changed to end in .ir. The applicant advised that this had been done at the request of his mother when similar questions were raised about the same letter that had been provided in support of the applicant's brother's request for a protection. I find it implausible that the 'Bureau of Non-Citizens and Foreign Immigrants Affairs' in the Yazd Governor's Office would change their email address simply at the request of a citizen.

   (b) However, the Applicant's letter did not say that the bureau changed its email address at his mother's request. The Applicant's letter merely noted that his mother had requested an updated letter from the Governor's office as to the statelessness of the Applicant and his family members, and that the letter be on the office's latest letterhead, with its current email and website address.

   (c) Neither did the Governor's letter state that the bureau changed its email address at the request of the Applicant's mother. The Governor's letter merely noted that the email address for the office had changed from .com to .ir.

   (d) The Tribunal failed to have proper regard to the Applicant's letter. in so far as that letter also requested the Tribunal to lodge the Applicant's application for an Iranian passport, a form and supporting documents being provided. The Tribunal did not consider that request.

   (iii) The Tribunal failed to discharge its core function to review the delegate's decision because it did not have proper regard to the email sent by the Applicant to Iranian Embassy ('the email').

   (a) The Tribunal stated that it gave the email little weight in determining whether the Applicant had

   a profile with the Iranian government.

   when the email was not given for the purpose of establishing whether the Applicant had a profile. Rather it was given in relation to his claim to being stateless and whether he had an Iranian passport.

   2. The Tribunal failed to take into account a relevant consideration

   Particulars:

   (i) All of the particulars contained in Ground 1 are repeated.

   3. The Tribunal constructively failed to consider the Applicant's claims

   Particulars:

   (i) All of the particulars contained in Ground 1 are repeated.

3. In this application the key issue advanced by the applicant was that he was stateless.  The Tribunal found that he was a citizen of Iran and assessed his claims in respect of fear of persecution and complementary protection as against that country.

4. The Tribunal made adverse findings in relation to the credit of the applicant, and, relevantly:

   29.    He provided copies of an Iranian white card and an older green card.  While I accept that the applicant is a Faili Kurd, I do not accept that he is stateless but rather find that he is an Iranian citizen for reasons set out below.

5. The applicant attended a hearing on 17 December 2014 to give evidence and present arguments and was assisted with an interpreter and represented by a migration agent.  After the hearing the applicant provided post-hearing material, relevantly comprising a letter dated 5 January 2015 that, materially, said as follows:

   Following my earlier submissions, I wish you had a good start in 2015 and would like to seize this opportunity to provide you with additional documents and information that I discussed about them earlier.

   Heaving received your decision letter about my brother’s application for RRT, undermining our supporting letter from the Bureau of None-Citizens & Foreign Immigrant’s Affairs in YAZD about our statelessness, just because they used .COM email in their letter head instead of .IR, my mother in Iran discussed the matter with the relevant department and requested an update letter under their latest letter head with current email and website for your consideration. As I had provided you with the same genuine documents to back up my statelessness, I now have got them for you. 

6. Annexed to that letter by the applicant was a translation of a document purportedly from the Governor’s Office of YAZD Province, Bureau of Non-Citizens and Foreign Immigrants Affairs dated 30 December 2014.  The document purports to have a document number 6671.  The certificate purports to provide as follows, and I will have what’s said in the certificate set out down to and including the ending email address, which is .ir.

7. The document dated 30 December 2014 is almost identical to a document dated 29 October 2010 that was provided to the Tribunal in relation to the issue of whether the applicant was stateless.  That document identified an application by the applicant’s father and the applicant and his four siblings for citizenship and purported to be from the Governor’s Office of YAZD Province, Bureau of Non-Citizens and Foreign Immigrants Affairs.  The document is different from the document provided dated 30 December 2014 in respect of the date of the document, the document number, and there is different information in relation to being signed and sealed, albeit that the Persian documents the subject of that translation appear to have an almost identical sign and sealing. The gap between dates and changed email address are of possible concern. The explanation as to how the document dated 30 December 2014 was obtained is also a proper matter for fact finding by the Tribunal.

8. The other material difference for the purpose of understanding the reasoning of the Tribunal is that the email address was “[email protected]”.  The Tribunal made a finding in relation to the document dated 29 October, relevantly, in para.37:

   37. I give no weight to the documents that he provided in support of this claim that he was refused citizenship.  Country information indicates that the system for establishing citizenship involves ‘..low key processes taking place through the court system.’, yet his documents dated 13 November and 29 October are from the Yazd governor’s office.  In addition they are on different letterheads and are of a style that could easily be produced on any home computer.  Only one of them has any address or contact details, which is unusual for an official letter.  The letter that does (dated 29 October 2010) has an email address that ends in .com, which is not indicative of an official Iranian government email address, which should reasonably be expected to end in .ir

9. It is clear that the certificate dated 29 October 2010 was a document provided in support of the applicant’s claim in respect of being stateless.  It was in these circumstances that the Tribunal made a finding as follows:

   38.    I also place no weight on the letter provided in the post-hearing submission in which the email address had been changed to end in .ir.  The applicant advised that this had been done at the request of his mother when similar questions were raised about the same letter that had been provided in support of the applicant’s brother’s request for a protection.  I find it implausible that the ‘Bureau of Non-Citizens and Foreign Immigrants’ Affairs’ in the Yazd Governor’s Office would change their e-mail address simply at the request of a citizen. 

10. The first respondent in its written submissions said as follows:

    19. …The first respondent accepts that it was not open to the Tribunal to have interpreted the Applicant’s Letter in the way it did. Specifically, the first respondent accepts that the Applicant’s Letter did not state that the Yazd Governor’s office had changed its email address at the request of the applicant’s mother. The first respondent accepts that the Tribunal’s misinterpretation of the Applicant’s Letter was, in part, the basis upon which the Tribunal decided to give no weight to the Second Governor Letter.

11. The first respondent’s written submissions link that misunderstanding of evidence to the finding by the Tribunal at the commencement of para.38 that no weight be given to the letter dated 30 December 2014 attached to the applicant’s letter dated 5 January 2015, identifying it as a consequential finding from the misinterpretation of the applicant’s letter.  In oral submissions counsel for the first respondent conceded that the finding of the Tribunal in placing no weight on the document was infected by the error in the last sentence and accordingly was an erroneous finding in relation to the letter dated 30 December 2014. The first respondent said the finding of no weight could not be supported and did not seek to support the finding of no weight by reference to the credit findings or by reference to a broad reading of the decision without an eye for error.

12. The first respondent sought to identify the distinction between a failure to consider a claim or ignoring evidence that is important to a claim from the position of errant fact finding by the Tribunal.  It is clear from the findings of the Tribunal that the applicant was born in Iran, the applicant had not individually applied for citizenship.  The Tribunal had considerable concerns about the credibility of the applicant and, relevantly, found as follows:

    41. Given he has no refugee white card later than 20 March 2011 and he fabricated his claim that he was only given a travel document to replace it, that his mother is an Iranian citizen and he was eligible for Iranian citizenship himself, that there is a workable Iranian legal system available to Faili Kurds to gain citizenship, and the ease with which he was able to leave Imam Khomeini airport, I am satisfied that the applicant is an Iranian citizen and not stateless. 

    42. I have considered whether the applicant is an Iraqi citizen given he is, on the face of it entitled to it as his father was born there.  Country information indicates that the process for re-establishing Iraqi citizenship for Faili Kurds has become easier since 2011, and that the majority of Faili Kurds should be able to reclaim Iraqi citizenship.  Those who may face difficulty would be a limited subset of Faili Kurds who were born to refugee parents both of whom were deceased, or who had gone missing under the Saddam Hussein regime.  Neither of these circumstances applies to the applicant.

13. The finding that the applicant was a citizen of Iran was a matter also addressed in para.29 as previously set out.

14. The reasons in finding that the applicant was a citizen clearly include the rejection of the letter of 30 December and the giving of no weight to that letter.  I accept the first respondent’s submission that this is not a case where the Tribunal has not considered the applicant’s claim as identified in Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303. The first respondent did not contend that the giving of no weight was subsumed within the other findings of the Tribunal.

15. It is clear from what was said by the Full Court in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [54] that there can be a constructive failure of the Tribunal to exercise its jurisdiction by failing to consider or ignoring evidence that is important to a claim, having regard to the course of the decision making. This requires consideration of what was important to the decision making as revealed by the exercise of the review by the Tribunal. In this regard, I take into account the caution identified by Robertson J in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [111] as follows:

    111. In my opinion there is no clear distinction in each case between claims and evidence: see SHKB at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.

16. The first respondent sought to maintain that the misunderstanding was an errant fact finding and that the Tribunal properly considered the applicant’s claim in all its competent integers, citing MZXSA v Minister for Immigration and Citizenship [2010] FCA FC 123 at [86]. In that case it appears at [85] that the misunderstanding was not one in which it had affected the Tribunal’s understanding of the evidence that was propounded and the Court said it was a peripheral misunderstanding.

17. I do not regard the letter dated 30 December 2014 as a document that can be said to be insubstantial or inconsequential given the reasoning process of the Tribunal. Further in light of the concession of error in the finding of no weight it cannot be said the misunderstanding was peripheral. Given that the finding of no weight for a conceded erroneous reason and given a conceded erroneous finding not otherwise supported by the first respondent it cannot be said that the document was not of importance to the review in this case.  There may well be issues about the weight, if any, that should be given to that document even if the explanation were properly understood.  The document’s genuineness or the impact of adverse credit findings might impact upon the weight to be given to the document and clearly the almost 4 year gap and textual differences raise issues that might be weighed by the Tribunal.  However, given the concessions by the first respondent, there is clearly at least a possibility that if the explanation were properly understood and given the importance of this document in the Tribunal’s reasoning process the document might give rise to a different determination.

18. The importance in the reasoning process of the Tribunal to which I have referred is the finding that the applicant was not stateless and was a citizen of Iran. The rejection of the letter dated 30 December 2014 on an erroneous ground and the finding which gives the document no weight occurred in the context of the rejection of a document four years earlier of the same kind as identified in para.37 of the Tribunal’s reasons. It is there acknowledged by the Tribunal that the similar document dated 29 October 2010 was provided in support of the applicant’s claim. 

19. It seems to me in these circumstances that the purported letter dated 30 December 2014 was an important document in support of the applicant’s claim, which in light of the concessions made by the first respondent, was effectively ignored by the Tribunal.  I accept the first respondent’s proposition that it is clear from para.38 that the Tribunal had regard to the letter, but in the context of its reasoning, it identified that the document was given no weight and the first respondent has conceded that that was a finding that was erroneous, being based on an erroneous understanding of the evidence. 

20. It is in those circumstances that I am satisfied that the material was of importance to the exercise of the Tribunal’s function and that the seriousness of the error in giving no weight to the letter dated 30 December for a reason conceded by the first respondent to be erroneous is a constructive failure of the Tribunal to exercise its jurisdiction and, as such, a jurisdictional error by the Tribunal. No discretionary issues were raised by the first respondent and accordingly this is an appropriate case for a writ of certiorari and a writ of mandamus.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street.

Associate: 

Date:  29 April 2015