AXF17 v Minister for Immigration

[2017] FCCA 2625

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXF17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2625

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.101, 107, 424A, 424AA, 425, 438, 476

Applicant: AXF17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 637 of 2017

Judgment of: Judge Street

Hearing date: 26 October 2017

Date of Last Submission: 26 October 2017

Delivered at: Sydney

Delivered on: 26 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 636/2017 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 637 of 2017

AXF17

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 claimed to be a stateless Faili Kurd and on that basis, was granted a Protection (Class XA) visa on 27 June 2012. On 28 January 2016, the applicant was given a Notice of Intention to Consider Cancellation. The notice identified the applicant failed to comply with s 101 of the Act and that his visa may be cancelled as a result. Submissions were made by the applicant in response to the notice on 11 April 2016. On 21 September 2016, a delegate made a decision to cancel the applicant’s visa.

The Tribunal’s decision

1. On 17 October 2016, the applicant applied for review to the Tribunal. The applicant appeared before the Tribunal to give evidence and present arguments on 20 December 2016 where he was assisted by his migration representative. The Tribunal in its reasons dated 30 January 2017, identified the background to the application for review. The Tribunal identified that it was satisfied that the notice issued complied with the requirements under s 107 of the Act. The Tribunal then turned to the issue of whether or not there was non-compliance in the way described in the s 107 notice and if so, whether the visa should be cancelled.

2. The Tribunal referred to the applicant arriving in Australia as an unlawful maritime arrival. The Tribunal made reference to the Form 866 completed by the applicant on 20 June 2012 which asked “Do you hold any other citizenship or are you a national of any other country?”  And the applicant answered, “No.”

3. The Tribunal made reference to the applicant submitting a form that his name be changed.  The Tribunal made reference to a further application by the applicant for a name change made on 7 March 2014.The applicant identified an explanation for why he had asked for the name changes and that he had grown up in Iran and that his father had told him what his real name was, and that it is a Turkish tribe, and he has never visited Iraq. 

4. The Tribunal made reference to, and did not accept, the applicant’s explanations that his uncle forced him to make the requests to change his name and identified the same as unconvincing and unpersuasive.  The Tribunal found it was highly likely that the applicant, when he requested changes to his surname, was providing what he considered to be correct information at the time and consequently, this means that he provided incorrect information about his surname when he lodged the application for protection.

5. The Tribunal was satisfied that the applicant’s request to change his surname indicated that he had provided false information in relation to his surname and nationality in the application for a protection visa, raising doubts about his true details, credibility and claims of being stateless. The Tribunal was not persuaded by the applicant’s explanation and found the applicant’s contact to the department on 10 February 2014 provided strong evidence as to the applicant’s real surname, that he is an Iranian National, and that he is not stateless as claimed. The Tribunal found it difficult to accept that the applicant would not have further details about his passport. The Tribunal found that the applicant was an Iranian National and had departed Iran on 7 August 2011, using the Iranian passport in his surname, contrary to his claims. 

6. The Tribunal raised with the applicant information that related to his mother departing Australia on 18 October 2015 and going to Iraq pursuant to s 424AA of the Act. The Tribunal found the applicant’s evidence in that regard to be evasive, adversely affecting his credibility. The Tribunal was satisfied that the Iranian passport was authentic and that it is evidence that the applicant is an Iranian National, and that when he came to Australia, he was an Iranian National, contradicting his claims for protection that he is a stateless Faili Kurd. The Tribunal was satisfied that the applicant had provided incorrect answers in relation to his identify and nationality.

7. The Tribunal made reference to documents provided by the applicant and found they did not overcome the Tribunal’s concerns and consequently the Tribunal gave them no weight. The Tribunal found the applicant did not comply with s 101(b) of the Act, which requires the applicant to complete the application form in such a way that no incorrect answers are given or provided. The Tribunal found that there was non-compliance under s 101(b) of the Act by the applicant in the way described in the s 107 notice.

Visa cancellation

1. The Tribunal then turned to the issue of whether or not the visa should be cancelled. The Tribunal found that the applicant is a citizen of Iran and is not stateless as claimed. The Tribunal found the applicant is an Iranian National who has arrived to enter and reside in Iran. The Tribunal did not accept that the applicant’s paternal uncle, if he exists, has threatened or harmed the applicant or any other member of his family as claimed, or that the uncle has obtained, or assisted in obtaining forged documents such as the Iranian passport, or that the applicant has a genuine fear of harm on the basis of the uncle, or that the uncle wants to force the applicant or any member of his family to return to Iran, or that the applicant is a stateless Faili Kurd. 

2. The Tribunal identified giving significant weight to the fact that the applicant has not acknowledged any wrongdoing, despite the material to which the applicant was taken by the Tribunal. The Tribunal turned to whether there are any other factors and was not satisfied that there was a real risk or a real chance of the applicant facing significant or serious harm if he were to return to Iran. The Tribunal was satisfied that there is not a real chance or real risk of the applicant suffering harm when he is returned to Iran on any basis.

3. The Tribunal did not accept that the applicant or any member of his family has ever been threatened as claimed by his paternal uncle or that he fears any harm on that basis. The Tribunal was satisfied that any depression the applicant may suffer from has not impacted on his ability to give evidence in relation to the assessment of credibility.

4. The Tribunal accepted as plausible the applicant is a Faili Kurd, but found the applicant is a registered Faili Kurd and on that basis, there is not a real chance or real risk of serious or significant harm to the applicant.  The Tribunal was not satisfied that being a registered Faili Kurd gives rise to significant or serious harm if the applicant were to return to Iran.

5. 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 him if he were to return to Iran. The Tribunal found that there has been non-compliance by the applicant in the way described in the notice under s 107 of the Act and having regard to all relevant circumstances, 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. No s 438 certificate was issued to the Tribunal in the present case. On that ground alone, ground 1 must fail. Mr Williams submitted that because there was a s 438 certificate issued in the applicant’s sister’s case, that the power should have been exercised to issue a certificate in the present case. The power to issue a certificate is discretionary. There is no substance in Mr Williams’ submission.

2. Further, the documents the subject of the certificate in the sister’s case identified information in respect of the applicant’s application to change his name and citizenship, and that he was in fact an Iranian citizen, which on the face of the Tribunal’s reasons was sufficiently disclosed to the applicant in the course of the hearing. The applicant had a real and meaningful hearing and there was no denial of procedural fairness as a matter of process in the conduct of the review in respect of the applicant. No breach of ss 425, 424A or 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 conceded that ground 2 was interdependent upon its success by the sister in her application in respect of ground 2. That application has failed and for that reason alone ground 2 must fail.

2. Further, this is a case where I accept the first respondent’s submissions that no claim was made by the applicant of fear harm based on the sister’s Westernisation or by reason of being estranged from his father, uncle, or by reason of his sister refusing to comply with Islamic standards. No such claim was made or arose on the material.  Accordingly, ground 2 fails to make out any jurisdictional error. 

3. Accordingly, the amended application is dismissed.

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

Date: 2 November 2017