AXE17 v Minister for Immigration

[2017] FCCA 2624

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXE17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2624

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – notice of intention to consider cancellation of visa – no denial of procedural fairness – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 101, 107, 424A, 424AA, 425, 438, 476

Applicant: AXE17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 636 of 2017

Judgment of: Judge Street

Hearing date: 27 October 2017

Date of Last Submission: 27 October 2017

Delivered at: Sydney

Delivered on: 27 October 2017

REPRESENTATION

Counsel for the Applicant: Mr J Williams
On a direct access basis

Counsel for the Respondents: Mr R Graycar

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The matter will be heard concurrently with the other two matters SYG 637/2017 and SYG 638/2017 and evidence in one is not to be evidence in the others.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 636 of 2017

AXE17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 30 January 2017 affirming a decision of the delegate to cancel the applicant’s Protection (Class XA) visa.

2. The applicant obtained a Protection visa on 27 June 2012 in circumstances of alleging to be a stateless Faili Kurd. The applicant was served with a notice of intention to consider cancellation on 29 January 2016. The applicant responded on 22 February 2016. On 1 September 2016 a delegate made a decision to cancel the applicant’s visa. 

The Tribunal’s decision

1. The applicant appeared before the Tribunal with the assistance of a migration agent on 1 December 2016 and 20 January 2017. The Tribunal in its reasons dated 30 January 2017 summarised the background to the application for review. The Tribunal identified finding that the notice issued complied with the requirements of s 107 of the Act.

2. The Tribunal then identified that the issue is whether non-compliance in the way described in the s 107 notice was made out and if so, whether the visa should be cancelled. The Tribunal noted that the applicant did not dispute the answers given in relation to the Form 866 which relevantly, included the answer “No” to the question, “Do you hold any other citizenship or are you a national of any other country?”

3. The Tribunal made reference to the request by the applicant for amendment or annotation of personal details, requesting the change of her name, and the provision of an Iranian passport. The Tribunal made reference to the applicant’s claim that the passport and birth certificate were created by her brother-in-law. The Tribunal found the applicant’s evidence in relation to the passport to be lacking in detail and evasive.  The Tribunal found the applicant travelled to Australia from Iran, and that she exited through the airport using an Iranian passport. The Tribunal made reference to the applicant’s claims that she was illiterate and of no formal education and found those matters not to be persuasive in relation to the adverse credibility findings. The Tribunal made reference to the applicant being asked repeated questions and requiring substantial prompting to respond, suggesting the applicant’s fabrication of the passport, which the Tribunal took into account in its adverse credibility assessment.

4. The Tribunal found it implausible that the applicant did not know at the time of departing Iran that the passport was allegedly not authentic.  The Tribunal found it highly unlikely that a fake passport would not have been detected by the Iranian authorities. The Tribunal did not accept the applicant’s explanation of obtaining the passport through the brother-in-law.  The Tribunal sought to explore with the applicant why she provided fraudulent information to the Australian authorities. The applicant said that her brother-in-law had threatened her daughter in Iran and that he would kill her if the applicant would not change her name. The applicant believes that the brother-in-law had threatened another daughter, who lives in a town on the border of Iran and Iraq.  The Tribunal was not persuaded by the applicant’s explanations in relation to her brother-in-law. The Tribunal noted that the applicant was now claiming that the passport was fake.

5. The Tribunal referred to the applicant’s departure from Australia on 18 October 2015, indicating that she was an Iraqi national who was going to expend the majority of her time in Iraq. The Tribunal observed that this raised doubts about her claim to fear harm in respect of returning to Iraq. The Tribunal found that the fact that the applicant went to Iraq indicates that she did not fear harm in returning to Iraq, raising serious doubts about her written claim that she was seeking protection from the Australian authorities so that she did not have to return to either Iraq or Iran. The Tribunal was not persuaded by the applicant’s explanation that she went to Iraq because of her daughter.

6. The Tribunal identified discussing with the applicant information in accordance with s 424AA of the Act that her son was in possession of Iranian passport and that he had requested on two occasions, changes to his surname. The Tribunal was satisfied that the son’s possession of an Iranian passport and identity documents, as well as, his requests to amend his personal details are highly persuasive evidence that he is an Iranian national and that the applicant herself is an Iranian national, raising serious doubt about her claims of being stateless. 

7. The Tribunal found the applicant not to be credible. The Tribunal was satisfied the applicant’s Iranian passport is authentic and that the applicant is an Iranian national and was an Iranian national when she came to Australia. The Tribunal decided not to give the applicant’s alleged white card any weight. The Tribunal found the applicant is an Iranian citizen and at the time of the protection visa application, she was an Iranian citizen. The Tribunal found the applicant has provided incorrect answers and information when seeking protection by claiming that she was stateless and that she feared harm on return to both Iraq and Iran.

8. The Tribunal found the applicant did not comply with s 101(b) of the Act, which required the applicant to complete the application form in such a way that no incorrect answers are given or provided. The Tribunal found there was non-compliance by the applicant in the way described in the s 107 notice.

Visa cancellation

1. The Tribunal then turned to the issue of whether the notice should be cancelled.  The Tribunal noted that it had found that the applicant is an Iranian who has the right to enter and reside in Iran.

2. The Tribunal found the applicant has not converted to Christianity, and that she is not claiming that she has, or that she has engaged in any activities that are or could be perceived to be, Christian related. The Tribunal found the applicant is not in a relationship with a particular person. The Tribunal was satisfied that there is nothing about the applicant’s current circumstances that would mean the visa should not be cancelled.

3. The Tribunal noted the applicant has continued to deny that she has provided incorrect information in relation to her Iranian nationality.  The Tribunal found that the applicant continued to provide incorrect and/or false responses.

4. The Tribunal turned to the issue of any other factors. The Tribunal did not accept the applicant has ever been threatened by her brother-in-law, if he exists, or that he has wanted her to return to Iran, or that he is aware of, or interested in any Facebook publications in relation to her daughter, or that if there were any such publications she fears any harm on that basis. The Tribunal did not accept that the applicant faces a real chance of or real risk of serious and significant harm at the hands of her brother-in-law if he exists, or any member of her former husband’s family.

5. The Tribunal referred to the applicant’s medications and was not satisfied those conditions which required medication mean the visa should not be cancelled. The Tribunal was not satisfied there is a real risk or real chance of the applicant facing significant or serious harm if she were to return to Iran.

6. The Tribunal was not satisfied that the applicant, a single and divorced woman, a woman with stress and anxiety, a registered Faili Kurd and of Arab ethnicity would give the applicant a profile which means there is a real risk or a real chance of her facing significant or serious harm if she were to return to Iran. The Tribunal found the applicant does not have a well-founded fear of persecution and that there is not a real risk of significant harm occurring to her if she were to return to Iran.

7. The Tribunal found that there was non-compliance by the applicant in the way described in the notice and having regard to all the circumstances, the Tribunal concluded that the visa should be cancelled. 

Before this Court

1. The grounds in the amended application are as follows:

   Ground 1: The non-disclosure of information under section 438 of the Migration Act 1958 (Cth)

   1. The Secretary did not follow procedures required by law pursuant to section 438(2)(a) of the Migration Act 1958 (Cth) and failed to issue a certificate of non-disclosure of information with regard to the information in folios 1-9; 13-14; 18-1 9; 28-32; 58; 79-80; 100-107 of BCC2014/564704, pertaining to the daughter's file (AXG17). As a consequence, non-disclosure of certain information under section 438(l)(a) of the Migration Act 1958 (Cth) constituted a denial of procedural fairness pursuant to section 424A, 424AA or 425 of the Migration Act 1958 (Cth).

   Ground 2: Failure to complete the statutory task as to whether the applicant faces a real risk of harm given her daughter has rejected Islam extremism and adopted a western lifestyle

   2. The Tribunal misapplied the applicant law with regard to the daughter of the applicant (AXG17) and failed to take into account relevantly, or failed to give genuine, proper or realistic consideration to whether the applicant faces a real risk of harm from her former husband, her former brother in law or Islamic extremists, given her daughter has rejected Islam and adopted a western lifestyle. The Tribunal therefore committed jurisdictional error by failing to complete the statutory task required of it to examine and deal with the applicant’s claims, or an integer of her claims, according section 414 of the Migration Act 1958 (Cth).

Adjournment application raised from the bar table

1. During the course of submissions, Mr Williams sought an adjournment pending determination of other matters on appeal. Whilst the outcome of those appeals may be of significance, there is not a sufficiently close overlap of legal issues and similarity of factual context to give rise to a necessity to adjourn.

2. The first respondent has opposed an adjournment. This matter has been fixed for hearing with two other matters and whilst the proceedings do overlap, the Court has a duty to resolve the matters fixed before the Court for hearing. In all the circumstances, the Court is not satisfied an adjournment is warranted in the interests of the administration of justice.

Ground 1

1. In relation to ground 1, Mr Williams submitted that there should have been issued a certificate under s 438 of the Act. Section 438 of the Act is a discretionary power and there was no s 438 certificate issued in the present case. Mr Williams submitted that because there was a certificate issued in relation to the applicant’s daughter that this somehow gave rise to a denial of procedural fairness to the applicant in the present case.

2. On the material before the Court, there was no certificate or information on the subject of a certificate that was not disclosed by the Tribunal to the applicant in the present case. Further, to the extent that there was information identified in the daughter’s case the subject of a certificate, that information relevantly concerned the brother’s application, the brother holding a passport and being an Iranian citizen. That information, on the face of the Tribunal’s reasons, was put to the applicant consistent with s 424AA of the Act. 

3. On the face of the material before the Court, the applicant had a real and meaningful hearing and there was no denial of procedural fairness by reason of the applicant not being given the documents the subject of the s 438 certificate in the daughter’s case, as I find the substance of the information that was adverse and which can be said to be credible, relevant and significant was disclosed to the applicant. No breach of s 425, s 424A or s 424AA of the Act is made out. No jurisdictional error as alleged in ground 1 is made out. 

Ground 2

1. In relation to ground 2, Mr Williams of counsel identified that this was in substance, interdependent upon the daughter’s application on this ground succeeding. The daughter’s application on this ground has failed. In any event, in respect of the present application, I accept the first respondent’s submissions that there was no such claim by the applicant to fear harm by reason of her daughter being Westernised and/or from her former husband or her brother-in-law or by reason of her daughter refusing to comply with Islamic standards.  No such claim was made or arises on the material before the Tribunal in the present case. No jurisdictional error as alleged in ground 2 is made out. 

2. Accordingly, the amended application is dismissed. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 2 November 2017