APR15 v Minister for Immigration
[2015] FCCA 3323
•18 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| APR15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3323 |
| Catchwords: MIGRATION – Review of decision of the Refugee Review Tribunal – general claims and submissions by the Applicant without reference to detail of the decision under review or to relevant legal principle. |
| Legislation: Migration Act 1958, ss.353, 363, 420, 424AA |
| Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 NBMB v Minister for Immigration and Citizenship [2008] FCA 149 Rhandhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 SZUWX v Minister for Immigration and Border Protection [2015] FCA 1389 |
| Applicant: | APR15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 27 of 2015 |
| Judgment of: | Judge Neville |
| Hearing date: | 20 July 2015 |
| Date of Last Submission: | 17 August 2015 |
| Delivered at: | Canberra |
| Delivered on: | 18 December 2015 |
REPRESENTATION
| Solicitor/Advocate for the Applicant: | Mr H Ford |
| Solicitors for the Applicant: |
| Solicitor/Advocate for the First Respondent: | Mr Saunders |
| Solicitors for the First Respondent: | Clayton Utz, Canberra |
| Counsel for the SecondRespondent: |
| Solicitors for the Second Respondent: |
ORDERS
The Application, filed 28th April 2015, be dismissed.
The Applicant pay the First Respondent’s costs in accordance with Schedule 1 Part 3 of the Federal Circuit Court Rules2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 27 of 2015
| APR15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By Application filed 28th April 2015, the Applicant seeks review of a decision of what was formerly the Refugee Review Tribunal (“the Tribunal”) dated 25th March 2015.
The grounds of review are disparate and diffuse and often are more in the form of submissions. Broadly they provide as follows, with the exception of grounds 1 and 2:
1) That the decision-maker took into account irrelevant considerations when arriving at the decision to refuse the visa.
2) That the decision-maker failed to give proper weight to a number of relevant considerations.
3) The Tribunal failed to exercise its jurisdiction according to law.
4) The Tribunal at paragraph 52 stated that the Tribunal should not place great weight on inconsistent comments, yet then place excessive weight on a number of inconsistent comments at paragraph 53.
5) There is no evidence for the comments of the Tribunal at paragraph 54.
6) There is no evidence for the comments of the Tribunal at paragraph 55.
7) The Tribunal has imposed an impermissible burden of proof on the Applicant.
8) The Tribunal has taken into account a number of irrelevant considerations at paragraph 57.
9) The Tribunal has no evidence for its findings at paragraph 58.
10) The Tribunal has no evidence for its findings at paragraph 59. The Tribunal has taken into account an irrelevant consideration at paragraph 59.
Brief Background Facts
According to the Translated Department Biodata checklist set out in the Court Book, the Applicant was born in 1984 in Ahwaz, he is a citizen of Iran, his religion is Shia, his ethnic group is Arab, his preferred language is Farsi but his other language is Arabic. He advised that his English language ability is poor.[1]
[1] See Court Book (“CB”) p.4.
Unless otherwise specified, the following should be considered as coming from the Tribunal’s reasons at [5] – [12].
The Applicant is an Ahvazi [sic – Ahwazi][2] Arab from Iran who claims to have been discriminated against, and to have been persecuted for his activity in political rallies.
[2] As already noted, at CB p.4, the Applicant’s details are written out. They clearly state that he was born in “Iran, Ahwaz.” Likewise, at CB p.9, the Irregular Maritime Arrival Entry record confirms the Applicant to be from Ahwaz. I understand this to be a region in southern Iran, somewhat close to the Iraqi border. Throughout the Tribunal’s reasons, the reference is to “Ahvaz” rather than to “Ahwaz.”
Around April 2005 he took part on the second day of protests in Ahvaz. He completed school and military service and worked for his Father as a panel beater. Around 2009 he began as a trainee at the Amir Kabir sugarcane refinery. He began experiencing discrimination, he said, once his supervisors discovered that he was Arab.
Two weeks after he began [work] he was fired, he said, for no reason but believed that it was because he was Arab.
The Applicant said that his encounter with discrimination developed in him a desire to protest, he said, for Arab rights. He began discussing his beliefs with other Arab friends.
In mid-2009 he was told by his friends that a pro-Arab rally would be held in Lashkar Abad. He attended with approximately 200 other people and it passed without incident. He says he returned home, but that night several members of Sepah came to his house and abducted him. It is not explained but I understand the Sepah to be the army of the guardians of the Islamic Revolution.
The Applicant said that he was blindfolded and taken to an unknown destination, told that there were photographs of him at an illegal protest, and he says he was then beaten. He abused the Sepah officer (perhaps not the most prudent course in the circumstances) and his wife who (he said) was embarrassed; he was further threatened it would seem as something of a reprisal or response to the Applicant’s own conduct. He said that he was released after a week through his Father’s connections and the payment of a bribe.
He became more active and after his release attended another political rally in Shalang Abad with about 100 other people in late 2009. The protest was generally peaceful; there were some scuffles but he was not otherwise involved. At home, he said that he was again abducted by the Sepah, including the person he says had previously abused him, who questioned and tortured him until he was released 10 days later, again through the payment of another bribe. He says that he stopped attending protests as a result of this treatment, but over the next two years he said that was detained overnight six or seven times by the same Sepah officer who would beat him before he was released on each occasion the next morning.
Around April 2011 protests on the anniversary of the 2005 Ahvaz unrest took place over four days but the Applicant says he did not attend them.
Around November 2011 the Sepah came to his house and arrested him. He was detained and beaten again by the Sepah officer who had previously dealt with him. After being tortured he says for long enough he confessed to attending the April 2011 protests, was forced to sign a confession and taken to a court. He was charged with crimes against the Islamic Republic of Iran and released on bail. A week later he left Iran through Imam Khomeini Airport with the help of a people smuggler.
The Applicant claimed that if he returned to Iran he would be executed because he has attended political demonstrations and he had claimed his rights as an Ahwazi Arab. He was an Arab speaker, not a Persian speaker and had problems as a result he said. He had to pay for his ID card and licence. It was put to him that all Iranians had to pay for these documents and that he claimed he had to pay millions of Toman rather than thousands and had to pay it to a middleman rather than to the government.
In short, the Applicant claimed that if he returned to Iran he would continue to be persecuted.
The Tribunal’s Decision
Very summarily stated, the Tribunal affirmed the decision of the Delegate to refuse to grant the Applicant a protection visa.[3] The Tribunal noted that the Applicant has a Persian Father, a Persian family name, and chose to conduct the matter before the Tribunal (and earlier with the Department) in Farsi, rather than Arabic.
[3] See CB pp.319-333.
The Tribunal did not accept that the Applicant had been discriminated against in his employment because of his Arab ethnicity, or that he had been detained and tortured by the Iranian authorities for attending pro-Arabic political demonstrations.[4]
[4] See CB pp.204-209, and particularly at Tribunal’s reasons [54] – [59] (ethnicity), [60] – [61] (employment discrimination), and [62] – [66] (attendance at political demonstrations).
Indeed, at [68] of the its reasons, the Tribunal said:
Given I have found that the Applicant has no political or criminal profile, he would be of no interest to the authorities on return as anyone other than someone returning on a different travel document than the one they left Iran on.
Applicant’s Submissions
The Applicant’s submissions were in two parts. Those filed on 6th July 2015; and a second set of submissions requested by the Court which were filed on 4th August 2015. Summarily stated, they were as follows.
It was said that at the time when the Tribunal made its decision the Tribunal took into account an irrelevant consideration, namely, the credibility of the Applicant.
I might note here that this was a recurring theme, and ultimately became the primary submission of the Applicant. It was submitted that the fact that the Applicant is a person of poor credibility does not, of itself, mean that the Applicant was not the subject of persecution.
Next, it was submitted that the High Court decision in Li clearly indicates that s.420 of the Migration Act is not merely an “evocative” statement.[5] Rather it was submitted that it is a statutory requirement for the Tribunal to adhere to the requirements of that section. I confess that I am unclear what the statement referring to s.420 as being more than “evocative” means, or the general provenance of it.
[5] The Applicant here was referring to Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
It was further submitted that the findings by the Tribunal that a person is or is not a person of credibility may involve findings of fact. But in the course of arriving at a decision about a person’s credibility it was submitted that the Tribunal is required to act lawfully, that is, it was submitted the Tribunal must not take irrelevant considerations into account when making a decision about the Applicant’s credibility. However, it was submitted that the Tribunal had taken irrelevant considerations into account when arriving at its decision concerning the credibility of the Applicant.
The Applicant further submitted in rather florid terms that:
It is not open season for the Tribunal to take anything into account when arriving at a decision concerning the credibility of the Applicant.
Again by way of observation only at this stage, the submissions made on behalf of the Applicant were and remain merely assertions. There was no reference to any particular facts or findings of the Tribunal, or reference to relevant principle, to support the assertions made.
It was further contended, again without reference to any evidence or finding, that the Tribunal’s approach to section 424AA of the Act was unlawful. Unfortunately again, such a broad claim was made without reference to either fact or authority. It should not have been made.
The submissions concluded at this juncture saying that because there were/are issues concerning the credibility of the Applicant, it followed (said the Applicant) that the Tribunal’s view was that the claims made by the Applicant concerning the acts of persecution must have been concocted. It was therefore submitted that this conclusion, and this approach, by the Tribunal amounted to jurisdictional error.
In the submissions filed by the Applicant in early August 2015 the substance of the Applicant’s submissions was [again] to assert that the credibility of the Applicant was an irrelevant consideration. The Applicant submitted that all other considerations taken into account by the Tribunal, many of which went to the credibility of the Applicant, such as inconsistencies in documentation provided by the Applicant and the Applicant’s evidence generally, were all irrelevant considerations.
As noted earlier in these reasons, all of the Applicant’s submissions were essentially predicated on the primary, if not sole, argument that the only question to be determined by the Tribunal, should have been whether the Applicant was the subject of persecution and therefore entitled to relief under the Migration Act. All other matters were, in the Applicant’s view, irrelevant considerations.
In this regard the Applicant further submitted (para.5 of his August submissions) as follows:
Even if the Respondent refers to decisions of the Federal Court which would reject the contentions above, this does not mean that they should be followed. They should not be followed.
Respectfully, this submission was not only brave or “courageous”, in the sense used in political satire, such as Yes Minister. From the perspective of proper use of authority, amongst many other things, it defied the proper judicial process that must be undertaken by any court, not least by an intermediate trial court – this Court - that is formally bound by decisions of superior courts such as the Federal Court of Australia. Again, such a submission should never have been made. Indeed, the frequency with which the lawyer who represented the Applicant in the current matter makes such improper statements, could lead to him being referred to the Law Society because of his blatant disregard of his responsibilities to the Court and the proper conduct of proceedings. He does his client in this matter, and in many others, a significant disservice by making submissions which presumably he has advised have some hope of succeeding when in fact they have none. He also wastes valuable Court time and resources by making submissions that should not be made. They are improper in every relevant respect.
The rest of the Applicant’s submissions, particularly from paragraphs 11 to 34, without reference to relevant authority or reference to the Act, were primarily assertions regarding (a) what the Tribunal did or did not do in relation to the burden of proof at the Tribunal hearing, (b) the Tribunal’s treatment of evidence in determining the credibility of the Applicant, (c) that the Tribunal process was generally unfair in the manner in which it was conducted and therefore (d) the Tribunal did not comply with the requirements of section 424AA of the Act.
The Applicant also submitted that the High Court’s decision in Li’s case (noted earlier) was applicable to the current matter. Again to pause briefly: one of the difficulties in making such a broad submission in relation to Li is simply that the Applicant did not specify how that case was applicable to the current matter and therefore how it was relevant in challenging the decision of the Tribunal. Again, this was a sweeping submission which did not relevantly take account of (a) the detail of the High Court’s comments in Li, and (b) did not specify how and why the facts and findings of the Tribunal could be challenged by reference to some [unspecified] principle from Li.
It is apposite to recall the comments of French CJ in Li, at [30], where his Honour said (internal citations omitted):[6]
The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, "may have no particular legal consequence."
[6] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [30]. See also the important extended discussion of “unreasonableness” and the exercise of discretion in the plurality judgment of Hayne, Kiefel & Bell JJ at [63] – [76]. See also the further, more recent discussions, firstly by the Full Court in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [41] – [52] regarding principles that relate to legal unreasonableness and the exercise of discretion by a Tribunal; secondly, in the decision of Griffiths J in SZUWX v Minister for Immigration and Border Protection [2015] FCA 1389 especially at [35] ff. I note that his Honour in SWUWX also discussed at some length beginning at [63], the High Court decision in Li.
Just so here: simply to assert that the decision of the High Court in Li applies to the current matter, without stating or referring to any specific finding that is challenged and the basis of that challenge, is not only unhelpful but also simply an expression of disagreement. Such a course, without more, assists no one.
I should also mention in particular that at the conclusion of the hearing on 20th July, in the light of earlier (and regularly made) submissions by the Applicant in relation to the provenance of the dissenting judgment of Kirby J in SGLB v Minister for Immigration and Multicultural and Indigenous Affairs, Orders were made directing the Applicant to provide a list of cases, from either the Federal Court or the High Court, which refer approvingly to the comments made by Kirby J in his dissenting judgment in SGLB.[7] The Applicant’s lawyer has never provided the list of authorities in accordance with the Orders of 20th July 2015.
[7] Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12.
The Respondent’s Submissions
The First Respondent submitted that the Applicant alleges that the Tribunal erred in taking into account certain irrelevant considerations, in particular that the Tribunal erroneously took into account inconsistencies in the Applicant’s evidence and/or erroneously took into account the Applicant’s credibility. The Minister submitted that on the basis of authorities such as SZSHV v Minister for Immigration and Border Protection, the assessment of evidence is essentially and primarily the province of the Tribunal and not of this Court.[8] This includes any finding in relation to the credibility of an Applicant.
[8] SZSHV v Minister for Immigration and Border Protection, (2014) FCA 253.
Next the Minister submitted that the regular reference in the Applicant’s submissions to “irrelevant considerations” effectively amounted to a catchphrase for general disagreement with the Tribunal’s decision. It did not conform to any standard jurisprudential understanding of what usually constituted an “irrelevant consideration.” In my words, again, absent reference by the Applicant either to specific finding and or legal principle, a repeated reference to “irrelevant consideration” is little more than a conclusion without the necessary factual or jurisprudential path outlined or described that leads to it.
In relation to the claim made by the Applicant that the Tribunal failed to take into account relevant considerations, the Minister submitted that the Applicant had not provided any particulars of those considerations that he alleges the Minister failed to take account of, or elaborated on, in the submissions of 6 July 2015.
In relation to the so-called “no-evidence grounds” in the Applicant’s application, the Minister submitted that the Applicant has not specified what particular finding is being challenged in any relevant respect.
Further, the Minister submitted that the Tribunal is not required to have evidence rebutting an Applicant’s claims in order to disbelieve them; rather, the Tribunal was entitled to accept or reject, or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.[9]
[9] Lee v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 464 at 27.
By way more of assumption as to what was intended by certain other grounds in the Application, the Minister, in my view fairly, assumed that a number of the grounds pleaded are in effect a claim that the decision of the Tribunal was illogical. However, the Applicant’s claim in this regard is not supported by the discussion of illogicality articulated by Crennan and Bell JJ in SZMDS.[10]
[10] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [121] - [131]. The Minister’s submissions only referred to [135] of the High Court’s judgment in SZMDS.
The Minister submitted next that the Tribunal’s finding that the Applicant was not credible was open to it on the evidence. In particular the Tribunal noted that the Applicant chose to conduct the hearing in Farsi rather than Arabic. I have earlier noted that the Applicant claimed that he spoke Arabic and Farsi.
In relation to questions regarding the onus of proof and the conduct of the hearing, the Minister noted by reference to authorities of long standing that the onus of proof has no place in administrative proceedings such as before the Tribunal here; nor is any Tribunal required to accept uncritically any and all claims made by an Applicant. Accordingly, it was submitted that the complaints by the Applicant in relation to the process before the Tribunal do not amount to jurisdictional error and therefore must fail.
It was also submitted that it was pre-eminently a case for the Tribunal to weigh up the evidence of the Applicant and draw conclusions from the evidence as assessed. This included considering inconsistencies in relation to that evidence. There was nothing untoward either as to the process or as to the assessment of the evidence that would warrant the Court to intervene.
In relation to the issue of alleged unreasonableness, the Minister submitted that Li’s case had no relevance (as was submitted by the Applicant) to the current proceedings. In that case the High Court considered whether the refusal to exercise a statutory discretion provided by s.363(1)(b), of the Migration Act to adjourn the review from time to time was vitiated in the circumstances of that case by legal unreasonableness. That is not the case here. And in any event the Applicant has not, so it was submitted, clearly identified what aspects of the Tribunal’s decision he alleges were affected by unreasonableness in any relevant respect.
In later submissions filed on 17th August the First Respondent simply noted the following matters.
The Minister contended again, in accordance with the earlier submissions, that the Tribunal’s function was simply to be the primary decision-maker; it performed that task and made formal findings. In that respect, there was nothing that could ground any claim for jurisdictional error.
Moreover, there is nothing specifically pointed to by the Applicant that would enable such a finding to be made, or that the Tribunal had regard to any irrelevant consideration. Likewise, the Tribunal was entitled to accept or reject or give such weight to the evidence proffered as it thinks or has thought appropriate in all of the circumstances, and therefore the so-called “no evidence” challenge equally had no substance.
I do not need to repeat the submissions concerning the purported impermissible burden in relation to the allegation made by the Applicant of being required to provide evidence to support the claims, because the onus of proof has no place in administrative proceedings. Similarly, I do not need to repeat the submissions made regarding the inapplicability of the High Court decision in Li.
Finally, it is sufficient to note, as the Minister did, that notwithstanding the Orders of the Court requiring the Applicant to provide any authority supportive of or reliant upon Kirby J’s dissenting judgment in SGLB. The Applicant has never provided any such evidence. Moreover, the Minister submitted that Flick J noted in NBMB v Minister for Immigration and Citizenship that Kirby Js comments in SGLB are merely observations about the proper approach to judicial review of a decision by the Refugee Review Tribunal.[11] In Kirby J’s own words, at [73] of SGLB, he said that his comments were simply “to collect a number of points that, in my view, should be accepted as common ground”.
[11] NBMB v Minister for Immigration and Citizenship [2008] FCA 149 at [7].
Consideration and Disposition
Unfortunately, and not for the first time, the submissions made by the solicitor for the Applicant were, in my view, in very large measure bald assertions that were not supported by reference to any relevant facts and/or relevant legal principle. I have already observed that the Applicant’s primary argument was that the only question to be determined by the Tribunal was whether the Applicant was the subject of persecution. According to such a submission, all other matters are irrelevant considerations. It follows from this primary argument that the following matters are, or should be treated as, irrelevant considerations:
a)the credibility of the Applicant; and/or
b)errors, omissions or inaccuracies in the documentation provided by the Applicant and/or the Applicant’s evidence generally.
Such a submission is without foundation. The credibility of any witness is, pre-eminently, a critical consideration in the assessment of the evidence put before any court or tribunal. And, in any event, the course proposed by the Applicant would, in my view, amount to impermissible merits review.
I have also suggested that the Applicant’s submission that this Court could not and should not follow relevant High Court and Federal Court authority in relation to (a) the conduct of proceedings before the Tribunal, (b) principles in relation to determining the credibility of an Applicant and (c) otherwise how properly to assess whether there has been any jurisdictional error committed by the Tribunal, is brave, naïve and bordering on the foolhardy. Such submissions should never have been made, especially by a lawyer who appears regularly in migration matters.
I suggest that the Applicant’s solicitor needs to read closely the High Court’s decision in Li, and with equal care, consider the Full Court’s comments in Singh, and the further discussion by Griffiths J in SZUWX. Properly read and applied they will (or should) save repeating many of the needless submissions that have been made, without foundation, in the current proceeding.
In my view, the Applicant has not made any claim that is supported by fact or legal principle to establish that there has been any relevant error committed by the Tribunal in the decision made on 25th March 2015. I should otherwise be taken to accept the submissions made on behalf of the First Respondent.
Accordingly, the application must be dismissed with an order for costs as per the schedule to this Court’s Rules. The Court so orders.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 18th December 2015
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