AXG17 v Minister for Immigration

[2017] FCCA 2623

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXG17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2623

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – notice of intention to consider cancellation of visa – adverse credibility findings – sufficient disclosure of the documents the subject of the s 438 certificate to the applicant – no jurisdictional error identified – further amended application dismissed.

Legislation:

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

Applicant: AXG17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 638 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 636/2017 and SYG 637/2017 and evidence in one is not to be evidence in the others.

2. Grant leave to the applicant to rely upon the further amended application and the Court dispenses with the need for the filing of an electronic copy.

3. The further amended application is dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 638 of 2017

AXG17

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 was granted a Protection visa on 27 June 2012 in circumstances where she was found to be a stateless Faili Kurd albeit, she was born in Iran. On 6 February 2016, the applicant was given a notice of intention to consider cancellation of the visa on the basis the applicant had not complied with s 101 of the Act. The applicant responded by her representative on 17 March 2016 to the notice. On 1 September 2016, a delegate of the Minister decided to cancel the applicant’s Protection visa.

The Tribunal’s decision

1. On 16 September 2016, the applicant applied to the Tribunal for review of the delegate’s decision. The applicant appeared before the Tribunal to give evidence and present arguments on 8 December 2016 and 20 January 2017. The applicant was assisted by her migration representative at that hearing and in the review.

2. The Tribunal in its reasons dated 30 January 2017 identified the background to the application for review. The Tribunal was satisfied that a valid notice had been issued under s 107 of the Act. The Tribunal identified that the issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice being the manner particularised in the notice and then if so, whether the visa should be cancelled.

3. The Tribunal noted that the applicant came to Australia in November 2011 with her brother and mother. The Tribunal relevantly referred to the applicant’s completion of the form 866 application for a Protection (Class XA) visa referred to in the notice dated 16 February 2016 in which the applicant was asked the question, “Do you hold any other citizenship, or are you a national of any other country?” and the applicant answered no. The applicant did not dispute that answer. The Tribunal asked the applicant whether she had a passport at the time she left Iran, and the applicant asserted that she did not have anything in her hands because the man who helped them had their passports.

4. The Tribunal found the applicant’s evidence in relation to her departure from Iran to be vague and evasive raising doubts about the manner of departure and the applicant’s credibility. The Tribunal made reference to DFAT information as to the difficulty of departing on a forged passport. The Tribunal referred to that difficulty as adding to the concerns of the Tribunal about the applicant’s evidence in relation to her departure from Iran and considered on the basis of the evidence as a whole, the Tribunal did not accept that the applicant left with the assistance of a man who she did not know, or that she did not have her own genuine passport. The Tribunal found the fact that the applicant left Iran from the airport was strong evidence that the applicant left Iran using a genuine Iranian passport contradicting her claims of being stateless.  

5. The Tribunal made reference to the applicant’s evidence that she was not on good terms with her brother who lived with her father for many years. The applicant also made reference to her uncle allegedly contacting her cousin who called her brother telling him that she was not wearing proper Islamic clothing and that she has become a whore. The Tribunal found it difficult to accept that the applicant does not know more about her father, and she was unable to explain the inconsistency in respect of her father’s family name, raising doubts about her credibility.

6. The Tribunal found that a particular person is the applicant’s brother and that he was in possession of an Iranian passport in a particular name indicating that he is an Iranian national, and consistently, in accordance with Iranian nationality law that the applicant is also an Iranian national, contrary to her claim of being stateless.

7. The Tribunal made reference to there being certificates pursuant to s 438 of the Act placed on three Departmental files before the Tribunal. I accept that the reference to the three Departmental files was a reference to files of the current applicant. The reference to certificates plural is an error, and I find that there was only one certificate placed on one of the three files. In that regard, the Tribunal noted that it indicated to the applicant that it had carefully considered the certificate, but does not consider it to be valid. I find the reference to plural was an immaterial error.

8. The Tribunal then noted in accordance with s 424AA of the Act that the Tribunal discussed with the applicant the information contained in the Departmental file which on the evidence before me, I find to be the documents the subject of the section 438 certificate, indicating the brother’s real name and who had made an attempt to change his name and confirm that he was in fact an Iranian citizen and not stateless, as claimed. The Tribunal noted that the applicant when invited to comment on or respond to that information and whether she required more time, stated that she only knows that they are Faili Kurds and she is only known by her alleged name. The Tribunal was not persuaded by the applicant’s explanations. The Tribunal was satisfied that the information relating to the applicant’s brother indicates his real name and that he is an Iranian National and consequently that the applicant is Iranian National as well, contrary to her claim of being stateless.

9. The Tribunal also made reference to putting to the applicant information in relation to the applicant’s mother, pursuant to s 424AA of the Act. The Tribunal found that the applicant’s mother is an Iranian national. The Tribunal identified the fact that the applicant’s mother and father are Iranian, is strong evidence the applicant is an Iranian national and not stateless as she claimed.

10. The Tribunal was satisfied that the document dated 9 October 2015 contains untruthful information, indicating to the Tribunal the willingness and capacity of the applicant to mislead and to use false information for personal benefit, raising doubts about the applicant’s credibility and the veracity of other documents or information she has provided. The Tribunal referred to the statutory declaration of the applicant’s mother and decided, for reasons of the applicant’s adverse credibility, to not give the document weight. The Tribunal referred to the applicant’s claimed fear of harm from her uncle. The Tribunal also referred to the applicant’s claim that since arriving in Australia, the applicant has developed different views and would now be at risk of harm.

11. The Tribunal referred to raising with the applicant during the course of the hearing that it was also dealing with the cancellation of two other members of her family and discussed pursuant to s 424AA of the Act, the potentially adverse information with the applicant and gave her an opportunity to respond or comment on that information. The Tribunal referred to having before it inconsistent information that the applicant’s brother made contact with the Department and submitted to a request to amend his personal details. The Tribunal made reference to the applicant’s brother advising the Department that he was already an Iranian national when he provided documents to support his claim of nationality and he was found to be in possession of an Iranian passport. The Tribunal also made reference to the applicant’s mother requesting a change of details and including Iranian documents including a birth certificate. The Tribunal noted the applicant’s explanation that her paternal uncle was responsible, which the Tribunal found not to be credible.

12. The Tribunal referred to the applicant’s claimed involvement in Christian related activities in Australia and intending to convert from Islam which the Tribunal did not accept. The Tribunal made reference to the applicant claiming to be in a relationship, but the Tribunal was not satisfied that the applicant is in a witness of truth. The Tribunal did not accept that the credibility of the applicant had been impacted by stress or anxiety. The Tribunal did not give weight to the documents provided by the applicant as to her alleged father’s name.

13. The Tribunal was satisfied that the applicant is an Iranian national who has a right to enter and reside in Iran, and that she came to Australia when she was an Iranian national, contradicting her claim for protection that she is a stateless Faili Kurd. The Tribunal found the applicant provided incorrect answers and information when seeking protection by claiming that she was stateless and that she feared of returning to both Iraq and Iran.

14. The Tribunal found that 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 to the Tribunal. The Tribunal found that there has been non-compliance by the applicant in the way described in the s 107 notice.

Visa cancellation

1. The Tribunal then turned to the issue as to whether the visa should be cancelled. The Tribunal took into account that it has found the applicant is a person who is an Iranian and has the right to enter and reside in Iran. The Tribunal took into account that the applicant has continued to deny that she has provided incorrect information when applying for the protection visa. The Tribunal found the applicant’s explanations to be unpersuasive and unconvincing. The Tribunal gave significant weight to the fact that the applicant has not acknowledged any wrongdoing.

2. The Tribunal referred to an alleged relationship. The Tribunal referred to the evidence of the applicant being inconsistent and incoherent which could raise doubts about her claims and credibility in that regard. The Tribunal found the applicant’s evidence in relation to being in a relationship, to be vague, inconsistent, incoherent and lacking in fundamental details. The Tribunal found the applicant’s explanations to be evasive and potentially fabricated. The Tribunal was satisfied that the applicant fabricated the claim of the relationship in order to support her claims.

3. The Tribunal made reference to other factors and then referred to the applicant’s claim that women in Iran cannot live with their boyfriends and they cannot be pregnant. The Tribunal noted that she was asked if she was pregnant and she said that she was not. The Tribunal noted the applicant said that women had to remain virgins prior to their marriage, and the applicant’s evidence asserting that she was not. The applicant alleged that she would be punished for not being a virgin. The Tribunal made reference to the applicant’s evidence about photographs of herself on a beach, which she says she posted on Facebook and then deleted.

4. The Tribunal made reference to the applicant’s fears that her uncle would punish her because of the photos and by reason of not being a virgin. The applicant alleged that the uncle used to beat her as a child and had broken her nose. The Tribunal made a finding rejecting the applicant’s credit and rejecting that the applicant is not a virgin or that there have been any photos of her in swimwear on Facebook, or that any uncle or anyone has become aware of such photos, or that she fears harm on this basis. The Tribunal made reference to the applicant appearing at the hearing in what was perceived as Western clothing and presentation. The Tribunal noted that she was not wearing a hijab and that she essentially indicated that she would not want to wear it and told the Tribunal that she had to wear the hijab in Iran.

5. The Tribunal indicated to the applicant that even if the Tribunal were to accept that she would not wear the hijab, or that she would wear it, the Tribunal may not be satisfied that this would amount to serious or significant harm. The applicant made reference to her uncle forcing her to wear the Chador. The Tribunal did not accept that claim in relation to the uncle. The Tribunal did not accept the applicant was forced to wear the Chador or that her uncle had caused her any of the claimed harm. By reason of the adverse credibility findings, the Tribunal was satisfied the applicant would wear the hijab and culturally appropriate clothing if she had to return to Iran, not because she has to or that she would be forced by anyone, but because she is untruthful in stating otherwise. The Tribunal referred to the possibility of the Tribunal being wrong about this conclusion, and was not satisfied that the applicant would suffer serious or significant harm as contemplated by the Act on the basis of wearing a hijab. The Tribunal found that if the applicant chooses not to wear the hijab, the Tribunal is satisfied that there is not a real chance or real risk on that basis of the applicant suffering serious or significant harm or by reason of the perception of being westernised.

6. The Tribunal made reference to the applicant’s claim of going to church and converting to Christianity. The Tribunal did not accept the applicant continued to attend church or that she is of Catholic faith or that she intends to convert to Christianity from Islam or that she has read the Bible or that she has engaged in any Christian related activities in Australia since her release from detention. The Tribunal was satisfied that any church attendance whilst in detention was in bad faith to strengthen protection claims and that if the applicant were to return to Iran, she would not practice Christianity not out of fear, but because she is not a Christian of any faith.

7. The Tribunal was not satisfied that there is a real chance or real risk of her facing serious or significant harm on the basis of her departure. The Tribunal accepted as plausible that the applicant is a Faili Kurd, but found that the applicant is a registered Faili Kurd and as a result of country information, found there is not a real chance or a real risk of serious or significant harm to the applicant on that basis. The Tribunal acknowledged that there are challenges for women in Iran, but did not accept that being a woman without more in Iran means that there is a real risk or real chance of serious or significant harm to the applicant.

8. The Tribunal was not satisfied there is a real risk or a real chance of the applicant facing serious or significant harm if she will return to Iran. The Tribunal is satisfied that there is not a real chance or real risk of the applicant suffering harm on her return to Iran on any basis. The Tribunal was not satisfied that as a young woman, with stress and anxiety, as a registered Faili Kurd, gives the applicant a profile which would mean that there is a real risk or a real chance of her facing significant or serious harm if she were to return to Iran.

9. The Tribunal made reference to the applicant not having 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. It was in those circumstances that the Tribunal decided that there was non-compliance by the applicant in the way described in the s 107 notice, and that having regard to all the relevant circumstances, the Tribunal concluded that the visa should be cancelled and affirmed the decision under review.

Before this Court

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

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

   1. The certificate issued under section 438(2)(a) of the Migration Act 1958 (Cth) on 21 September 2016, with regard to folios 1-9; 13-14; 18-19; 28-32; 58; 79-80; 100-107 of the applicant's file BCC2014/564704, was invalid and was therefore not a process according to law. As a consequence, the non-disclosure of certain information under section 438(1)(a) of the Migration Act 1958 (Cth) constituted a denial of procedural fairness pursuant to section 424A, 424AA or 425 of the Migration Act I 958 (Cth).

   Ground 2: Unreasonableness/No evidence - there was an insufficient logical or evidentiary basis for the Tribunal to find that the applicant would not suffer harm on the basis of being a female who has rejected Islam and adopted a western lifestyle

   2(a) The decision by the Tribunal was affected by jurisdictional error as there was an insufficient logical or evidentiary basis for the Tribunal to find at [63] that “for adverse credibility findings" the applicant is “not a virgin or that there have been any photos of her in swimwear on Face book, or that any uncle or anyone has become aware of any such photos, or that she fears any harm on this basis."

   2(b) Alternatively, the applicant was denied procedural fairness pursuant to section 424AA of the Migration Act 1958 (Cth) by the finding by the Tribunal at [63] that the “applicant is not a virgin" after the applicant claimed she "would be punished for not being a virgin" at [62].

   Ground 3: Misapplication of law or failure to ask the correct question regarding whether the applicant would obey Islamic doctrine and wear the hijab

   2. The Tribunal fell into jurisdictional error by failing to consider the issue of persecution in relation to the correct “particular social group,” that being a female who has rejected Islam and who has adopted a western lifestyle. In so far as decision of the Tribunal found at [66] that the applicant is required, or can be expected, to take reasonable steps to avoid persecutory harm, they are wrong in principle and should not be followed.

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 of counsel took the court to Exhibit B and also to the applicant’s claimed fears of harm. Mr Williams submitted that there had been insufficient disclosure of the whole of the documents the subject of the certificate and that the applicant had accordingly been denied procedural fairness and/or that there was a breach of the requirements of s 425 of the Act as well as an alleged breach of the requirements of s 424AA and s 424A of the Act. For the reasons earlier given, it is apparent that there was only one certificate that was issued under the Act, and that certificate was disclosed to the applicant.

2. The Court has carefully examined the documents the subject of the certificate. The documents the subject of the certificate did identify credible, relevant and significant information being the brother’s holding of an Iranian passport and assertion of being an Iranian. Those matters were raised by the Tribunal and put to the applicant as identified in the Tribunal’s reasons. The Court finds that there was sufficient disclosure of the documents the subject of the s 438 certificate to mean that the applicant had a real and meaningful hearing. There was no basis to find that there was any breach of s 424AA of the Act in the way in which the information was put. It was not necessary for the Tribunal in accordance with the requirements of procedural fairness, to provide the applicant with the documents in circumstances where the substance of the adverse information was put to the applicant under s 424AA of the Act.

3. Further, this is a case where the applicant had the benefit of legal representation, and no request was made for access to the information the subject of the certificate when the Tribunal disclosed the existence of the certificate in the course of the review. The failure to provide the applicant with the whole of the documents the subject of the certificate did not give rise to any denial of procedural fairness in the process of the review.

4. There was no breach of s 425A of the Act in circumstances where the credible, relevant and significant information was sufficiently disclosed in the course of the hearing for the applicant to respond to the same. I do not accept that there was any breach of s 424AA of the Act as the reasons of the Tribunal reflect compliance with the requirements of that provision. Accordingly, there is no breach of s 424A of the Act. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Williams of counsel submitted that the finding by the Tribunal that the applicant was not a virgin was unreasonable or illogical. This is a case where the Tribunal identified rational and logical basis for the adverse credibility findings in relation to the applicant that were clearly open on the material before the Tribunal.

2. It was the applicant’s evidence which asserted that she was a virgin. There is no unreasonableness or illogicality in the adverse finding made by the Tribunal that the applicant was not a virgin and/or in rejecting the applicant’s claims in relation to photographs or people having become aware of the same and her alleged fears on that basis. Insofar as Mr Williams argued that the applicant not being a virgin was information enlivening an obligation under s 424A of the Act, that submission is misconceived.

3. The applicant’s evidence as to whether or not she is a virgin is not information that gives rise to any obligation under s 424A of the Act. Further, it was a matter for the Tribunal to assess the applicant’s credit, and the rejection of the applicant’s credit is not a matter which enlivens any obligation under s 424AA of the Act.

4. Mr Williams also disagreed with the adverse finding made by the Tribunal as to the applicant’s fears in respect of being a virgin. Mr Williams submitted that the failure to give clear particulars, to invite the applicant to comment or respond, or advise the applicant she may seek further time to comment or respond to such information, was a failure to comply with the obligations under s 424AA of the Act. No such obligation under s 424AA of the Act was enlivened. Accordingly, no jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, Mr Williams submitted that the Tribunal had misapplied the relevant law and had asked the wrong question in relation to the applicant disobeying an Islamic doctrine and wearing the hijab. This is a case where the Tribunal made adverse credibility findings that the applicant had not converted from Islam, and found that the applicant did wear the hijab. The Tribunal considered even if the Tribunal was wrong about the conclusion, and made adverse findings that were open to the Tribunal on the country information before it.

2. There was no failure by the Tribunal to complete the statutory task or failure by the Tribunal to apply the correct test in considering any other factors as to why the visa should not be cancelled and in particular, the applicant’s claims that might fall under the Refugee Convention or complementary protection. No jurisdictional error as alleged in ground 3 is made out.

3. The further amended application is dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 2 November 2017