AHG18 v Minister for Home Affairs - [2018] FCCA 1630

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHG18 v MINISTER FOR HOME AFFAIRS & ANOR

[2018] FCCA 1630

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iraq as a stateless Bidoon – Authority finding the applicant is not stateless – claims assessed against Iraq – whether that conclusion was based on evidence considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36, 57, 477

Cases cited:

BJU16 v Minister for Immigration & Anor [2017] FCCA 1959

Applicant:

AHG18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 158 of 2018

Judgment of:

Judge Driver

Hearing date:

20 June 2018

Delivered at:

Sydney

Delivered on:

20 June 2018

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr G Johnson

Solicitors for the Respondents:

Mills Oakley

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 158 of 2018

AHG18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority). The decision was made on 30 November 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts concerning the applicant’s claims for protection and the decision of the Authority on them are set out in the Minister’s legal submissions.
The applicant arrived in Australia on 18 October 2012 from Iraq. On 15 June 2015 he applied for a temporary protection visa. His claims may be summarised as follows:
a)he claimed that he and his parents were born in Kuwait, were not citizens of any country, and were stateless Bidoon;
b)his father had served in the Kuwaiti army and was imprisoned in Iraq during the Iraqi invasion of Kuwait. After Kuwait was liberated the applicant’s father was released but the Kuwaiti authorities harassed the applicant’s family because they were not citizens;
c)in 1993 the applicant and his family left Kuwait for Iraq. The applicant claimed that he lived a nomadic life herding sheep and goats with his brothers and father in the desert. He claimed to have no rights in Kuwait or Iraq because he had no documents. He claimed that his brothers and sisters born in Iraq had no Iraqi identification; and
d)at the delegate interview the applicant raised a new claim that he feared harm in Iraq from the husband of a woman he had been in a relationship with in the past. He claimed that the husband considered the applicant had disrespected him and that he had attended the applicant’s home and threatened to harm him.
On 21 March 2017 the delegate refused to grant the applicant a protection visa.[1] On 24 March 2017 the applicant’s matter was referred to the Authority.[2]
[1] Court Book (CB) 125
[2] CB 145

Authority’s decision

On 30 November 2017 the Authority affirmed the decision under review.[3]
[3] CB 166
The Authority accepted the applicant had no right to enter and reside in Kuwait and assessed the applicant on the basis that his returning country was Iraq.[4] Whilst the Authority considered the applicant had given consistent evidence concerning his claims to have lived a nomadic lifestyle, it had a number of concerns about the veracity of the applicant’s claims, principally by reference to information that the delegate had from the applicant’s Facebook page, and the applicant’s responses to questions asked by the delegate at the interview regarding the content of his Facebook page. By way of example, the Authority found it concerning that the applicant was friends with, or known to people with, connections to the Iraqi authorities because it contrasted with his evidence that he and his family were fearful of Iraqi authorities and did not associate with such people.[5] The fact that the applicant appeared himself to post on the site in Arabic refuted his claim to be illiterate.[6] The Authority concluded that the fact that the applicant maintained an active Facebook page raised doubts about his claim to be an illiterate, uneducated, stateless Bidoon as he claimed.[7]
[4] [11]; CB 168
[5] [19]; CB 170
[6] [21]; CB 170
[7] [22]; CB 171
In addition, the Authority considered to be in conflict the applicant’s evidence that he travelled to Australia by plane via Malaysia and Indonesia and to have experienced no issues, with his claim that he grew up in a remote location in the desert, had limited experience travelling to city areas and that he was illiterate.[8] Further, the Authority noted the applicant had given an inconsistent account of his arrival in Malaysia and Indonesia.[9] The changing nature of the applicant’s evidence led the Authority to doubt the veracity of his evidence more broadly.[10]
[8] [23]; CB 171
[9] [24]; CB 171
[10] [25]; CB 171
In conclusion, the Authority, by reference to the difficulties it identified in the applicant’s evidence, was not satisfied that he was stateless as claimed. Rather, the Authority considered it “highly likely” that the applicant and his family were among the approximately 47,000-50,000 Kuwaiti Bidoon who were granted Iraqi citizenship prior to 2003 through an Iraqi government assistance package.[11]
[11] [26]; CB 171
In relation to the applicant’s claim raised at the delegate interview that he feared harm from the husband of a woman he had previously been in a relationship with, the Authority found that, given the significance of the matter to the applicant’s decision to leave Iraq, it expected that he would have been able to provide consistent evidence on the matter, and that it would have been raised earlier.[12]
[12] [31]; CB 172
The Authority also considered whether the applicant might face harm as a Bidoon, irrespective of his obtaining Iraqi citizenship. The Authority was not satisfied of the applicant’s claims to have suffered discrimination in the past as a Bidoon.[13] It noted that Bidoon who have citizenship in Iraq have the same rights to health care, education and employment as other Iraqi citizens.[14] The Authority was not satisfied the applicant would suffer serious harm now or in the reasonably foreseeable future on the basis of his ethnicity.[15] The Authority considered, despite it not having been claimed by the applicant, whether the applicant would suffer harm as a Shia in Iraq, but determined that it was not satisfied he would.[16] Neither was the Authority satisfied the applicant would suffer harm as a returned failed asylum seeker.[17]
[13] [35]; CB 173
[14] [36]; CB 173
[15] [36]; CB 174
[16] [38]; CB 174
[17] [40]; CB 175
The Authority found that the applicant was not entitled to protection obligations under either s.36(2)(a) or s.36(2)(aa) of the Migration Act.

The present proceedings

The proceedings began with a show cause application filed on 19 January 2018. That application was filed outside the period prescribed in s.477(1) of the Migration Act. On 13 April 2018 I granted an extension of time under s.477(2).
The applicant’s ground of review is accurately summarised at [12] of the Minister’s submissions:
The applicant relies upon one ground of review, which has two parts to it. First, the applicant contends that the Authority based its decision on the Facebook page, and that the Facebook page “does not have any evidence about my status as a stateless person”. Secondly, the applicant contends that the Authority did not assess his evidence about his father’s passport which the applicant said was fraudulent.
The application is supported by an affidavit filed with it which, to the extent that it remains relevant, I received as a submission.
I have before me as evidence the court book filed on 27 February 2018.
I invited oral submissions from the applicant today. The applicant initially said he had no particular submissions to make, although he reiterated his complaints concerning his Facebook account being accessed and the conclusions reached concerning his father’s passport. He denied that he is a citizen of Iraq. The applicant told me that he was born in Kuwait, as was his mother. His father was born in Iraq but apparently the birth was not registered.
The Authority decision significantly turned on adverse credibility conclusions which were broadly consistent with conclusions reached by the delegate. It was the Minister’s Department which had obtained information from the applicant’s Facebook account. That information, which was adverse to the applicant’s claims, was put to him under s.57 of the Migration Act.[18] The applicant responded to the invitation to comment.[19] The response was considered. In my view, there being no apparent legal error made by the delegate in relation to that information, no curative action by the Authority was required under its code of procedure.
[18] CB 132-133
[19] CB 114-115
Moreover, the adverse conclusions reached by the Authority based upon the information were open to it on that material. The Authority was entitled to conclude, as it did, that the applicant was not illiterate as claimed. Further, the Authority was, in my view, entitled to conclude that it did not accept the applicant’s claim to be stateless. The latter conclusion was somewhat more tenuous than the first. The fact that the applicant’s father was able to travel outside of Iraq did not necessarily support a conclusion that he and his family were Iraqi citizens. Nevertheless, the Authority also had before it country information from the Department of Foreign Affairs and Trade which I do not have the benefit of. The conclusion reached by the Authority concerning the applicant’s status in Iraq is set out at [26] of its reasons:
Conclusion on the applicant's status in Iraq
I have taken into account all of the evidence and submissions before me on this matter. Overall, the concerns raised above are not overcome by the applicant's oral evidence at the DIBP interview. Rather when taken cumulatively, the concerns I have identified above strongly suggest that the applicant is not stateless as claimed. Rather, I consider it is highly likely the applicant and his family were among the approximately 47,000 - 50,000 Kuwaiti Bidoon who were granted Iraqi citizenship prior to 2003 as part of the assistance package called 'makremiayah' set up by the Iraqi government.[20]
(footnote renumbered)
[20] DFAT, "Country Information Report - Iraq" , 13 February 2015, CISEC96CF1160; and DFAT, "Country Report on Iraq", 26 June 2017, CISEDBS0AD4631
The issue of Bidoon statelessness also arose in the case of BJU16 v Minister for Immigration & Anor.[21] In that case, the applicant claimed to be an Iraqi national but it appeared to me, based upon the information contained in the delegate’s decision in that case, that he might in fact have been stateless. I was asked not to pursue that issue by both parties in that case.
[21] [2017] FCCA 1959
It is possible that a stronger basis for the Authority’s conclusions might have been formed by an examination by it of Iraqi citizenship law. However, such an inquiry would not necessarily have resolved the issue. I do not know, for example, whether the Saddam Hussein regime in Iraq conferred citizenship on Bidoon by reference to the Iraqi citizenship law at the time or as some special measure. The inference was available to the Authority that the applicant was not stateless, as he claimed, but was in fact an Iraqi.
I otherwise agree with the Minister’s submissions on the ground of review advanced.
The first part of the ground does not establish error. Leaving aside that the particular does not seem to follow from the ground alleging that the Authority’s decision was based on “no evidence”, the applicant’s complaint at its highest appears to be a disagreement with the Authority’s conclusions drawn from the information that arose from the Facebook page (which had been before the delegate, and about which the applicant had been asked questions at the delegate’s interview). It was open to the Authority, for the reasons it gave at [14]-[22], to conclude that it was not satisfied that the applicant was a stateless, illiterate and uneducated Bidoon. The Authority’s reasoning was logical and cogent.
Neither does the second part of the ground establish error. The reference by the applicant to his evidence about his father’s false passport appears to be a reference to the post-interview submission advanced on his behalf in a letter from his representative to the delegate dated 1 March 2017.[22] At CB 117-118 the representative refers to the father having obtained a false passport through a smuggler in order to travel to Mecca for Umran. Contrary to the applicant’s contention, the Authority expressly considered this submission at [16].[23] The Authority did not accept the submission as it was not raised by the applicant when he was questioned about it by the delegate and it contradicted the applicant’s evidence that his father travelled from Kuwait. The applicant’s contention that the submission was not considered is contrary to the Authority’s express findings.
[22] See CB 112
[23] CB 169

Conclusion

I conclude that the applicant is unable to demonstrate that the decision of the Authority is affected by any jurisdictional error. The decision is, therefore, a privative clause decision and the application must be dismissed. I so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $6,000. The applicant did not wish to be heard on costs.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $6,000.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 22 June 2018