AGU15 v Minister for Immigration

[2016] FCCA 2201

FEDERAL CIRCUIT COURT OF AUSTRALIA

AGU15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2201

Catchwords:
MIGRATION – Application for judicial review – dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Minister for Immigration and Citizenship v SZIAI (2009) HCA 39

Applicant: AGU15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: (P)MLG598 of 2015

Judgment of: Judge McGuire

Hearing date: 20 May 2016

Date of Last Submission: 20 May 2016

Delivered at: Melbourne

Delivered on: 31 August 2016

REPRESENTATION

Counsel for the Applicant: Mr Aleksov

Solicitors for the Applicant: Clothier Anderson Immigration Lawyers

Counsel for the Respondents: Mr Hill

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. That the judicial review be dismissed.

2. That applicant pay the first respondent’s costs in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

(P)MLG598 of 2015

AGU15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS  TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (as it then was) (“the Tribunal”). Affirming a determination of the Minister’s delegate not to grant the applicant a Protection Visa.

2. The applicant is a Faili Kurd. He was born in Iran although his parents are from Iraq having been expelled from Iraq during the war with Iran in about 1985.

3. The applicant arrived in Australia on 16 August 2012 as an unlawful maritime arrival and lodged an application for a Protection Visa on

   
   

   8 January 2013. The delegate refused the application on 8 August 2013. The Tribunal’s hearing of the review application took place on

   
   

   12 February 2015 and its decision affirming the delegate’s decision was handed down on 26 February 2015.

4. The applicant’s claims are set out in his statement of 14 December 2012.  He said at [16] and [17]:

   I fear serious harm, constant humiliation, and possibly torture and death at the hands of Iranian authorities as I am stateless without any legal right to residents there.

   The Faili Kurds have no security in Iran. We are constantly under fear and we are persecuted regularly.

5. Relevantly for the issue before me, the applicant describes at[ 14] and [15] of his statement how he managed to leave Iran.  He says:

   About two years ago, the government of Iran announced that all the refugees should leave Iran immediately or else they will be arrested and deported. We paid a person to get me a passport just in case we needed to flee. I use the identity of my brother X.  The agent told us that it is better to acquire the passport under the identity of my brother as our faces are very much alike. Due to constant fear of being caught and having no work rights, I decided to leave Iran. My passport was still valid and so I fled Iran on 21 June 2012. I departed Iran through Imam Khomeini International airport.

The Tribunal

1. The Tribunal’s decision at [86) of its reasons, the Tribunal found on the evidence before it that the applicant does not have a well – founded fear of persecution should he return to (Iran) now or in the reasonably foreseeable future. The Tribunal expressed concerns as to the applicant’s credibility and at [27] says:

   That the Tribunal has profound concerns about the credibility of the applicant’s claims, due to a combination of implausible, inconsistent, confused and sometimes a vague evidence. As set out below, the Tribunal finds in particular that his claims regarding his departure from Iran and the passport he used are implausible and substantially undermined his core claim to be a stateless and undocumented Faili Kurd and that the information contained in the Protection Visa application of his brother S also detracts significantly from the credibility of his claims regarding the documentation held by his family.  Having regard to these matters in combination the Tribunal finds that the applicant is not a credible witness.

2. The Tribunal did not accept that the applicant left Iran through Tehran airport using a fraudulent passport or the passport of his brother. 

Application to this Court

1. The issue before this court is properly described by the applicants counsel as an unusual or even a novel one. Broadly speaking, the applicant complains of the Tribunal acted in a manner that does not amount to the conduct of a review.  The “novelty” of the argument is that the particular issue was apparently resolved in a manner not unfavourable to the applicant on his evidence.

2. In response to the applicant’s evidence that he had left Iran through the Tehran airport holding a fraudulent passport/his brother’s passport the  Tribunal reasons at (51] – [54] relevantly note:

   The Tribunal explained that the country information also indicated that it was very difficult to leave through Tehran airport using a fraudulent passport.  The applicant said he didn’t know; probably it was good luck. Even if they checked he didn’t encounter any problems.  Because his brother was a bit fatter than him he had to put on weight and grow whiskers. The Tribunal pointed out that the issue was not whether he looked like his brother’s photo, but that if the passport was fraudulent, it would have been detected.

   The  Tribunal explained that the country information also raised the issue that if he was using passport in his brother’s name, the checks described in that information would have indicated that his brother M did not have other records, was not a citizen and that the passport was fraudulent.  The applicant responded that he didn’t know; his contact told him he would get him a passport and he gave him the passport.  He remembers getting checked only twice, once getting into the airport and getting his luggage checked and the second time boarding. 

   The  Tribunal explained that the details contained in the country information may lead it to conclude either that he had not left Iran through the airport in Tehran at all, but in some other way, or alternatively, that he had left using a genuinely issued passport, probably in his own name and that he was an Iranian citizen.  The applicant said he did not know, but there were many others who leave with fraudulent passports; he told his contact he had no identity documents and said not to worry and he would get him a genuine passport.

   The Tribunal has considered carefully the confused and implausible evidence given by the applicant regarding the passport he obtained and his departure from Tehran’s International airport.  Even though the Tribunal put the applicant on notice that it may conclude he left Iran, other than via the airport in Tehran and that the likely alternative finding would be that he left using a genuine Iranian passport which was probably his own, which in turn would lead the Tribunal to conclude also that he was in an Iranian citizen, the applicant did not claim to have left Iran from any other point, or by any other means.  Although the applicant’s account of the checks he went through while he while leaving the airport is not supported at all by the country information, in light of his failure to make a claim that may ultimately have been to his advantage and say that he left the country in some other way, the Tribunal accepts on the evidence before it that he did in fact leave around through the Imam Khomeini International airport in Iran.

   The applicant says that the Tribunal’s reasons disclosed it did not believe the applicant when he said that he left through Tehran airport holding a fraudulent passport and described his evidence as “implausible” but nevertheless, having raised these concerns with the applicant and including that he had left the country in some other way all with a genuine passport, ultimately accepted by the applicant in the particular that he had exited the country through Tehran’s International airport.

   The applicant says that the failure to review by the Tribunal arises in the Tribunal failing to engage in, enquire and/or resolve this issue by reference to the evidence but rather by reliance on the applicant’s failure to embrace the Tribunals implied invitation during the hearing to claim that he left Iran other than through Tehran airport.

   The applicant argues that the Tribunal itself identifies an issue being that the applicant’s claimed method of departure and says that the error is so significant as to amount to a jurisdictional error because it is the “fulcrum of the case”. That is, the applicant says that the Tribunal did not “review” this issue.  It did not engage with the issue and then make a finding of fact informed by the evidence rather it simply accepted the applicant’s factual concession, although not believing it to be true.  The curiosity here is that the applicant is ultimately seeking to quash a Tribunal’s decision because it accepted (or in part) his evidence as to his point of departure.

3. The applicant says that the Tribunal’s reasons disclosed it did not believe the applicant when he said that he left through Tehran airport holding a fraudulent passport and described his evidence as  “implausible” but nevertheless, having raised these concerns with the applicant and including the likelihood that he had left the country in some other way or with a genuine passport, ultimately accepted the applicant in the particular that he had exited the country through Tehran’s International airport.

4. The applicant says that the failure to review by the Tribunal arises in the Tribunal failing to engage in, enquire and/or resolve this issue by reference to the evidence but rather by reliance on the applicant’s failure to embrace the Tribunals implied invitation during the hearing to claim that he left Iran other than through Tehran airport.

5. The applicant argues that the Tribunal itself identifies an issue being the applicant’s claimed method of departure and says that the error is so significant as to amount to a jurisdictional error because it is the “fulcrum of the case”. That is, the applicant says that the Tribunal did not “review” this issue. It did not engage with the issue and then make a finding of fact informed by the evidence rather it simply accepted the applicant’s factual concession, although not believing it to be true.

   
   

   The curiosity here is that the applicant is ultimately seeking to quash a Tribunal’s decision because it accepted (or in part) his evidence as to his point of departure. 

Consideration

1. The applicant’s claim of fear arises from his evidence as to being a stateless Faili Kurd. He says that he left Iran through Tehran airport using a fraudulent passport.

2. In its reasons and under the heading, ‘is the applicant’s stateless and undocumented?’ (which is the applicant’s claim), the Tribunal deals with four separate aspects or issues as follows:

   i)The applicant’s vague, confused and implausible evidence in respect of his parents claimed expulsion from Iraq in 1985 within the context of unsupportive country information;

   ii)Concerns as to divergent accounts given by the applicant and his brother in respect of family documentation [39];  

   iii)The applicant’s claim to being stateless against country information indicating the applicant’s qualifications for Iranian citizenship; and

   iv)The issue of the applicant’s exit from Iran in respect of his claim to being stateless and undocumented.

3. The Tribunal summarises these four considerations at [57] in coming to a finding that the applicant is a citizen of Iran and not, as claimed, an undocumented refugee from Iraq and that he had left Iran via Tehran International airport using his own and genuine Iranian passport. That paragraph states:

   As set out above the applicant was unable to give a plausible account of his parents success’ departure from Iraq, the evidence regarding the green and white cards held by his family and the circumstances of their non—renewal was directly undermined by the claims made by his brother S on the same issue, and he has given implausible evidence regarding how and why he obtained a fraudulent passport containing his brother M’s photograph and details.  In addition, the country information before the Tribunal in the IOM report cited above [41] indicates that the applicant’s claim to circumstances of birth in Iran to non—citizen parents and uninterrupted residents in Iran until the age of 18, and for at least one year beyond that would qualify the applicant for Iranian citizenship.  On the evidence before it, the Tribunal finds that the applicant is a citizen of Iran and further, that the applicant is not an undocumented refugee from Iraq.  The Tribunal finds also on the evidence before it that the applicant departed Iran via Imam Khomeini International airport using his own, genuine Iranian passport.

4. Consequently, and contrary to the submissions of the applicant’s counsel that the evidence in respect of the exit from Iran represents the ‘fulcrum’ of the Tribunal’s findings as to credibility, there were, in fact, four matters of relevance grounding those findings as summarised at [57].

5. Specifically as to the applicant’s evidence as to his exit from Tehran, the Tribunal’s reasoning is multifaceted.  At [43] the Tribunal engages the applicant’s evidence as to not being stopped or questioned when holding a fraudulent passport.  At [44] and [45] the Tribunal challenges the applicant’s evidence in respect of being too young to obtain his own passport and again as against country information.  Further and at [46] – [51] the Tribunal challenges the applicant’s description of his exit procedure as against country information. At [52] the Tribunal pointed out that the applicant claimed to be using his brother’s passport although the brother would presumably have the same stateless status and arouse the interest of the authorities. Against this background of transparent consideration, the  Tribunal at [54] has put the applicant on notice that, taking all of the above into account, it might conclude that he left Iran other than via the Tehran airport or alternatively, that he did leave via Tehran, airport but using a genuine Iranian passport.

6. The applicant says that the Tribunal has here a “fulcrum” issue to be resolved. I disagree that consideration of whether the applicant left from Tehran is an issue requiring the Tribunal’s resolution.  It is not, in my view, a critical element of the Tribunal’s decision making process in respect of the applicant’s claim to be stateless and undocumented.  It certainly does not achieve the mandatory consideration status of a claim or an integer.  The critical finding is as to the applicant’s claim of being stateless and the Tribunal here engages in various and wider issues in respect of the evidence and in reaching its finding in respect of the applicant’s claim.

7. In any event, I consider the applicants argument here to misconceive the Tribunal’s process. Ultimately the Tribunal did reach a finding at [54] that the applicant did leave via Tehran airport. Inherent in that finding is that he did not do so carrying the fraudulent document he claims. This is the critical finding of credit.  The Tribunal has done nothing more, in my view, than to properly expose this factual conundrum to the applicant for his comment:

   If you had a fraudulent passport, then you could not have left via Tehran airport; or, if you left via Tehran airport then you must have left using a genuine document and hence you could not be stateless.

8. There was no error in this process of consideration of the claim and the evidence in its support. The applicant attempts to expand the Tribunals duty to independently enquire. Firstly, it is not for the Tribunal to present the applicant’s case. Secondly, and whilst the Tribunal undoubtedly has the power to make enquiries, its duty to do so is exceptional and rare. Such a duty might arise whereas the need to make such enquiries is obvious, and in respect of a critical fact. [1] This issue was not critical in the Tribunal’s determinative process. It was one of a number of factors considered and contributing to the Tribunal’s finding of credit. Secondly, such information would normally need to be easily ascertainable which in this case, and in its context of challenge to the applicant’s credibility, it would not be.

   [1] Minister for Immigration and Citizenship v SZIAI (2009) HCA 39 at [25]

9. Finally, it is perhaps trite to observe that a person making a statement against interest as the applicant did here being on notice as to the Tribunal’s credibility concerns, will normally give integrity to that evidence.

Conclusion

1. I find no merit in the one ground of complaint argued by the applicant in this review. The application will be dismissed with an order for costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 31 August 2016