AQT17 v Minister for Immigration
[2019] FCCA 2637
•20 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AQT17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2637 |
| Catchwords: MIGRATION – Protection visa – where Tribunal makes adverse credibility findings against applicant’s claims – where application for review contains unparticularised grounds – grounds devoid of merit – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 45AA 65, 91R, 474, 476 Migration Regulations1994 (Cth), reg.2.08F |
| Cases cited: Australian Broadcasting Tribunal v Bond [1990] 170 CLR 321 BMX15 v Minister for Immigration and Border Protection (2016) 244 FCR 153 Chhetri v Minister for Immigration and Border Protection [2019] FCA 1026 Craig v South Australia (1995) 184 CLR 163 Dai v Minister for Immigration and Citizenship (2007) 165 FCR 458 Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 MZARG v Minister for Immigration and Border Protection [2018] FCA 624 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 Television Corporation Ltd v Commonwealth (1963) 109 CLR 59 WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 |
| Applicant: | AQT17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 306 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 16 September 2019 |
| Date of Last Submission: | 16 September 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 20 September 2019 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondents: | Mr Murano |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application dated 16 February 2017 be dismissed.
The applicant pay the costs of the first respondent fixed at $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG306 of 2017
| AQT17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 16 February 2017, the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 10 February 2017 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Protection visa pursuant to s 65 of the Migration Act 1958 (Act).
For the reasons which follow I have concluded that the application should be dismissed. I have concluded that it was open to the Tribunal to make adverse credibility findings in relation to the applicant’s evidence and claims. I do not discern any error in the Tribunal’s statement, or its application, of the applicable legal principles. Nor am I satisfied that there is any substance in the applicant’s other, and unparticularised, grounds of review which variously contend that the Tribunal’s decision was made: without any evidence to support it; without taking into account relevant considerations or upon the basis of irrelevant considerations; and in circumstances which were legally unreasonable or that it was attended by uncertainty.
Background
The applicant, a male Iranian citizen of Turkish ethnicity aged 36 years, first came to Australia as an irregular maritime arrival on 28 March 2013.
On 16 July 2013, the applicant lodged an application for a Protection (Class XA) visa.
The applicant’s claims to protection were detailed in a Statutory Declaration attached to his visa application in which he stated that:
a)he was born in Tehran and was of Turkish ethnicity;
b)his father had died when he was aged 9 years and he had thereafter been raised by his mother;
c)although he had stated in his entry interview that he was Shia, he further stated:
I am not a religious person and have no affiliation to any religion… I have never practiced as a Shi’a Muslim and do not believe in the religion at all
d)in 2003, he was assigned to work as a prison guard as part of his compulsory military service, but after about 5 months he deserted and was subsequently found to be medically unfit on the basis of mental stress;
e)he detailed a number of incidents arising from his involvement with various girlfriends:
i)in 1999, he was sentenced to a fine and lashings at the age of 16 for being “caught with a girlfriend” and having a “forbidden relationship”;
ii)in 2003, he was sentenced to 25 days in prison for the same offence, with the sentencing judge warning that the applicant would receive a “very harsh punishment” if he was convicted a third time; and
iii)on 31 January 2013, he and his most recent girlfriend were stopped at a Basij roadblock, where the Basij found various photos of the applicant and an ex-girlfriend in western style clothing. He stated that when the Basij started to insult him about his lack of religion he responded that he had no religion. The applicant claimed that while he had driven through a roadblock, his girlfriend was arrested and he had not heard what had happened to her (apart from her release on bail).
f)after the incident at the roadblock, the applicant went into hiding before leaving Iran on 28 February 2013;
g)shortly after leaving Iran, he was charged with the offence of Mofsed Fel Arz and tried in absentia. He claimed that his mother retained a lawyer to represent him and that he was convicted of the offence, being sentenced to 15 years in prison; and
h)he fears harm, arrest, detention, physical assault and death at the hands of the Iranian authorities if he was to return.
On 8 December 2014, the applicant attended an interview with a delegate of the Minister during which he stated that although he did not have a religion since he was a teenager, he still believed in God. The delegate questioned the applicant about that statement as being inconsistent with those made in previous interviews. The applicant said he had wanted to convert to Christianity whilst in Iran and attended an unnamed church on several occasions, but did not convert as he believed the authorities were monitoring the church. When questioned further by the delegate about whether he had converted to a religion whilst in Australia, the applicant stated that he was still “doing some investigations about changing my religion”.
Delegate’s decision
On 16 December 2014, the delegate refused to grant the application. While the delegate accepted some of the applicant’s claims regarding his family, education and employment, the delegate had significant concerns regarding the applicant’s central claims to fear harm including that:
a)having regard to country information provided by DFAT, it was unlikely that the applicant was arrested, fined and lashed in 1999 for his “forbidden relationship”. Considering the applicant’s confused responses to questioning, the delegate found that the applicant was not telling the truth on that subject;
b)the inconsistencies in the applicant’s account of his detention for 25 days in prison in 2003 indicated that he was embellishing and not telling the truth;
c)the applicant’s account of how, in 2013, he escaped a fully manned roadblock whilst being chased by Basijis (both in a car and on a motorbike) was implausible and embellished for the purpose of his Protection visa application;
d)the applicant’s claims regarding his court summons for Mofsed Fel Arz were fabricated and contradicted the available country information attesting to the availability of forged court documents;
e)the applicant was unable to provide a plausible explanation regarding inconsistencies in his statements regarding his religion and was generally not a credible witness or have any genuine interest in Christianity.
The delegate’s reasons for the decision were comprehensive.
The delegate concluded that the applicant was not a person in respect of whom Australia owed protection obligations, either as a refugee under s 36(2)(a) or by way of complementary protection under s 36(2)(aa).
Tribunal’s decision
On 23 December 2014, the applicant applied to the Tribunal for a review of the delegate’s decision.
On 3 August 2016, the applicant was invited to appear before the Tribunal on 29 September 2016 to give evidence and present arguments relating to the issues arising in his case.
On 7 November 2016, the applicant’s representative provided the Tribunal with a further statutory declaration made by the applicant on 6 November 2016 stating his claims for protection and attaching a number of supporting documents. In particular, the applicant stated at [29] that “I admit that I was not an honest person in the past. I admit that I provided dishonest information about my protection in my written statements and oral evidence given to the Department in the past”.
On 10 November 2016, the applicant’s representative provided the Tribunal with written submissions that focused on the applicant’s conversion from Islam to Christianity.
On 11 November 2016, he applicant appeared at a rescheduled hearing, represented by his migration agent and with the assistance of a Persian interpreter. The Tribunal also heard evidence from a number of the applicant’s acquaintances: Mr Amir Nosrati; Mr Hamid Mazaheri; and Mr Rezi Malikshahi.
Tribunal’s decision
On 10 February 2017, the Tribunal found that the applicant was not a person to whom Australia owed protection obligations. The Tribunal set aside the delegate’s decision to refuse to grant the applicant Protection (Class XA) visa and substituted a decision to refuse to grant the applicant a Protection (Class XD) visa. It provided a statement of reasons for that decision (Reasons). Again, the Tribunal’s Reasons were comprehensive.
The Tribunal raised a number of concerns about the applicant’s credibility and found that he was not a witness of truth because:
a)he had admitted to the Tribunal that he had lied about being harassed by the Basij in 2013, and that the court documents supposedly convicting him in relation to the incident were bogus;
b)the Tribunal did not consider the applicant’s mental health issues to be an adequate explanation for his memory lapses and mistruths;
c)the Tribunal was concerned that the applicant changed his oral evidence about whether he left Iran because of religious reasons;
d)further, the Tribunal disregarded the applicant’s conversion to Christianity whilst in Australia having regard to the operation of s 91R(3) of the Act.
Upon its consideration of the applicant’s claims, individually and cumulatively, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution if he were to return to Iran.
Based on its findings, the Tribunal found that the applicant did not meet the criteria in sub-ss 36(2)(a) or 36(2)(aa) of the Act, and substituted a decision to refuse to grant the applicant a Protection (Class XD) visa.
Procedural history
On 16 February 2017, the applicant filed an application for judicial review of the Tribunal’s decision together with an affidavit affirmed by the applicant to which he exhibited a copy of the Reasons but adducing no further evidence in support of the application for judicial review.
By a Response filed on 1 March 2017, the Minister opposed the application on the stated basis that the decision under review was not affected by jurisdictional error.
On 15 August 2017, orders were made, by consent, listing the matter for final hearing. While orders were made affording the applicant opportunities to file any amended application, affidavits and submissions, those opportunities were not taken.
On 2 September 2019, the Minister filed written submissions which were responsive to the grounds appearing in the application.
When the application was called on for hearing there was no appearance by or on behalf of the applicant. The matter was stood-down to allow that applicant an opportunity to appear. When the matter was recalled, the applicant appeared and made submissions with the assistance of an interpreter (whose services were not required on occasion).
Applicable principles
The present application arises in the context that if the Tribunal’s decision was a privative clause decision[1], it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[2] Absent jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[3]
[1] Act, s 474(2).
[2]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[3] Act, s 476(2).
Judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error.[4] Where it is appropriate, an order may be made remitting the matter for reconsideration according to law.
[4]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
The latitude granted to an administrative decision-maker turns upon whether the criteria for the grant of the particular visa are satisfied. By s 65 of the Act, an administrative decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[5] Where the applicable criteria are satisfied the visa application must be granted.
[5]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Consideration
As the applicant was self-represented before me, I have re-examined the materials comprising the court book, the Tribunal’s Reasons and application for review. The application for review contained 8 grounds of review, each of which was devoid of particulars. The grounds of review were liable to dismissal on the basis that no particulars were provided to illuminate the precise basis on which it was being contended that the decision was affected by jurisdictional error.[6]
[6]SZNXA v Minister for Immigration and Citizenship [2010] FCA 775, [21]; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760, [35]; MZARG v Minister for Immigration and Border Protection [2018] FCA 624, [25].
Grounds 1 and 2 – error of law
Grounds 1 and 2 read:
1.The decision by the Second Respondent involved an error of law, whether or not the error appears on the record of the decision.
2.Second Respondent either misrepresented, misunderstood or misapplied the applicable law, or has otherwise failed to ask itself the correct question.
As Grounds 1 and 2, agitate substantively the same issue, it is convenient to consider them together. In substance, these grounds contend that the Tribunal erred by not correctly applying the law.
I do not discern any error in the statement of applicable legal principles, or that the Tribunal failed to apply them: Reasons, [44]-[54], [96], [119].
The Tribunal correctly found that the applicant had made an application for a Protection (Class XA) visa, being an application for a permanent visa: Reasons, [5]. The Tribunal was also correct to conclude that it was required to consider the application as being an application for a Protection (Class XD) visa, being a temporary visa: Act, s 45AA and Migration Regulations 1994, reg 2.08F(1). By operation of those provisions, the application for a Protection (Class XA) visa was taken never to have been a valid application but was taken always to have been an application for a Protection (Class XD) visa.
Further, the Tribunal applied s 91R(3) of the Act which reads:
For the purposes of the application of this Act and the regulations to a particular person:
(a)in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b)the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol
Section 91R has since been repealed (and replaced by s 5J(6)). However, as the applicant had applied for the visa on 16 July 2013, sub-s 91R(3) remained operative and applied to the consideration of the application unless the applicant satisfied the Tribunal of the matter in par 91R(3)(b). The Tribunal concluded that it should disregard the evidence relating to the applicant’s claimed conversion to Christianity on the basis that he had engaged in that conduct for the purpose of strengthening his claims for protection: Reasons, [80], [102]; see Minister for Immigration and Citizenship v SZJGV.[7]
[7](2009) 238 CLR 642, [58]-[61] (Crennan and Kiefel JJ), [13] (French CJ and Bell J agreeing), cf [16], (Hayne J, diss).
I accept the Minister’s submission that no error is demonstrated (or apparent) as to a misstatement or misapplication by the Tribunal of the relevant legal principles.
Grounds 1 and 2 are rejected.
Ground 3 – no evidence
Ground 3 reads:
3.There was no evidence or other material to justify the making of the decision by the Second Respondent or the Second Respondent relied on evidence which did not exist.
By Ground 3, the applicant contends that the Tribunal erred in making its decision based on no evidence.
The Minister accepted that the Tribunal may err if it makes a finding that is simply not open on the evidence.[8]
[8]Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 135; Australian Broadcasting Tribunal v Bond [1990] 170 CLR 321, 355-356.
It is clear from the Reasons that the Tribunal’s findings of fact and conclusions about why the applicant did not satisfy the criteria in ss 36(2)(a) or 36(2)(aa) of the Act were based on evidence which the applicant provided and upon country information.
The unparticularised complaint that the Tribunal’s decision was made without evidence is without substance.
Ground 3 is rejected.
Grounds 4 and 5 – relevant considerations
Grounds 4 and 5 read:
4.The Second Respondent failed to take into account a relevant consideration in the exercise of power.
5.The Second Respondent took into account an irrelevant consideration in the exercise of power.
By these grounds, the applicant contends that the Tribunal erred, either because it failed to take into account a relevant consideration or took into account an irrelevant consideration. Those grounds can only succeed if the Tribunal failed to consider a matter mandated by the legislation or considered a matter which it was prohibited from considering.[9]
[9] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-40.
In the context of an application for a Protection visa, the relevant considerations are the applicant’s claims, being the reasons advanced by the applicant for his fear of harm.[10]
[10] Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, [63]-[71].
I consider that there is no error in how the Tribunal considered the applicant’s claims to fear harm. It considered each of those claims, variously said to arise from the applicant’s:
a)having been arrested for his involvement in prohibited relationships: [97]-[101], [122]-[124];
b)purported conversion to Christianity: [102]-[111], [125]-[128];
c)mental health issues: [112], [129]; and
d)being imputed with anti-Iranian views because of his presence in Australia: [113]-[114], [130]-[131].
Further, there are no specific considerations which the Tribunal is prohibited from considering when assessing either an application for a XA visa or a XD visa application. In those circumstances, the Tribunal could not have erred by considering an irrelevant consideration.
Grounds 4 and 5 are rejected.
Ground 6 – exercise of discretionary power
Ground 6 reads:
6.The Second Respondent exercised a discretionary power in accordance with a rule or policy without regard to the merits of the particular case.
The applicant contends that the Tribunal erred because it exercised a discretionary power in accordance with a rule or policy and that it did so without regard to the merits of the case.
The Minister accepted that the Tribunal may err if it applies policy in a way which fetters its statutory discretion.[11]
[11]See, generally, Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; Chhetri v Minister for Immigration and Border Protection [2019] FCA 1026; BMX15 v Minister for Immigration and Border Protection (2016) 244 FCR 153, [41]-[43].
Contrary to Ground 6, I do not accept that the Tribunal’s consideration of whether it was satisfied that the applicant had fulfilled the criteria for the grant of a visa entailed the exercise of a discretionary power. The decision required by s 65(1) of the Act requires “an assessment of the claim by the decision-maker” and involves “the weighing of evidence and information for and against the claim.”[12] It is not a discretionary decision. Further, I consider that the Reasons confirm that the Tribunal assessed the evidence before it and came to its decision by applying the relevant law based on that evidence.
[12]Cf, SZJGV, supra (2009) 258 CLR 642, [54] (Crennan and Bell JJ); cf Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713, [59]-[60] (Gageler J), [78]-[87] (Nettle and Gordon JJ).
Ground 6 is rejected.
Ground 7 – legal unreasonableness
Ground 7 reads:
7.The Second Respondent exercise power in a manner that is so unreasonable that no reasonable person could have so exercised the power.
An administrative decision-maker may err by exercising a statutory power in a manner that is legally unreasonable; that is, in a manner which is devoid of any evident and intelligible justification or is arbitrary and capricious.[13] I agree in the Minister’s submission that no such error is present in this case.
[13] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [28], [76].
Ground 7 is rejected.
Ground 8 - uncertainty
Ground 8 reads:
8.The Second Respondent exercised power in such a way that the result of the exercise of the power is uncertain.
By this ground, the applicant contends that the Tribunal erred by exercising its power in such a way that the result of its exercise of power was uncertain. Error may arise where there is uncertainty in the exercise of power by an executive decision-maker.[14]
[14]See, Dai v Minister for Immigration and Citizenship (2007) 165 FCR 458, [35]-[37] (Gyles J); Television Corporation Ltd v Commonwealth (1963) 109 CLR 59, 70-73 (Kitto J), 75] (Taylor, Windeyer and Owen JJ); King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184, 190 (Rich J), 193 (Starke J), 194-6 (Dixon J), 208-9 (Williams J).
To the extent that such a ground of review may be said to apply to a decision of this kind, I do not consider that the Tribunal’s exercise of power was uncertain. Its Reasons set out its findings and conclusions about why the applicant did not satisfy s 36(2)(a) or s 36(2)(aa). In addition, the Tribunal clearly articulated the power it was exercising by setting out the relevant law at [44]-[58] of its Reasons.
Ground 8 is rejected.
Conclusion
For the reasons above, the application must be dismissed.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 20 September 2019.
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