AXL18 v Minister for Home Affairs

[2020] FCCA 693

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXL18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 693

Catchwords:
MIGRATION – Judicial Review – Decision of Administrative Appeals Tribunal – where applicant claims new information ought to have been considered – where alleged misinterpretation in interview with the Authority – s.473DD criteria not satisfied regarding new information – evidence of misinterpretation not produced by applicant – failure to particularise any alleged jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.473DD

First Applicant: AXL18

Second Applicant: AXN18

Third Applicant: AYB18

Fourth Applicant: AYD18

First Respondent:

Second Respondent:

MINISTER FOR HOME AFFAIRS

IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 75 of 2018

Judgment of: Judge Young

Hearing date: 6 March 2020

Date of Last Submission: 6 March 2020

Delivered at: Adelaide

Delivered on: 6 March 2020

REPRESENTATION

Counsel for the First Applicant: In person

Counsel for the Second Applicant: In person

Counsel for the Third Applicant: No appearance

Counsel for the Fourth Applicant: No appearance

Counsel for the First Respondent: Mr Chan

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The first applicant pay the first respondent’s costs in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 75 of 2018

AXL18

First Applicant

AXN18

Second Applicant

AYB18

Third Applicant

AYD18

Fourth Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review of a decision of the Immigration Assessment Authority (“the Authority”) made on 2 February 2018 regarding the first applicant, AXL18.  The second applicant AXN18 is the wife of the first applicant, and as I understand it is not suggested that the wife of the applicant has any separate claims to that of AXL18.

3. The other two applicants, AYB18 and AYD18, are the minors and children of the first applicant and his wife.  When I refer to the applicant, I am referring to the first applicant, AXL18.

4. The applicant is a citizen of Iran and his claims to the delegate in summary are as follows.  He was persecuted as a member of a particular social group made up of people who run tattoo businesses or people who have tattoos on their body.  He was harassed by the authorities in Iran because of those factors.  He fears significant harm from family members of a woman he tattooed without the husband’s consent.  The extended family of that woman, or that man at least, have made threats against him.

5. He says that he fears persecution for reasons of religion, because he has a tattoo of the Virgin Mary on his chest.  Accordingly the Iranian authorities will impute Christianity to him and he will be persecuted as a result.

6. The Authority also considered the claim, though not explicitly made by the applicant, that he may suffer harm as a result of being a failed asylum seeker returning to Iran.

7. Before the Authority, the applicant sought to have the Authority consider new information pursuant to section 473DD of the Migration Act 1958 (Cth). The new information that the applicant said ought to be considered was, first, he had been arrested and jailed on two occasions about eight years ago. This would put it, bearing in mind the time of the submission, around 2009 or 2010. The applicant said he was jailed for three months and two months because of tattoos and his tattooing business and that he had been maltreated as a result.

8. The second piece of new information that he wished to have considered was information that the family who had threatened him were Hamidi Arabs, who are fanatical in their insistence on a strict code of behaviour. This included the rejection of body tattoos, and that is a stricter code than the Iranian Government requires.

9. It was said by the applicant’s migration agent in his written submission to the Authority dated October 2017 that the applicant had not had a proper opportunity to put these claims to the Authority. Therefore it was said in the submission, or at least implied, that there are exceptional circumstances to justify the consideration of the new information. Further having regard to section 473DD(b), the new information could not have been provided to the Minister or the delegate before the delegate’s decision, or was credible personal information.

10. The Authority rejected both those submissions and said at paragraph 4 of its reasons that it had listened to the recordings of the interview with the delegate and the Authority observed that the delegate had asked the applicant whether he had anything further to say. The delegate provided the applicant and his representative, who was present with him, an opportunity for a break to discuss any further information. Presumably the delegate also told the applicant that he could provide any further information before a decision was made. The applicant’s representative said that she would make further submissions in writing but no submissions were received, either about the alleged torture or treatment in police custody or anything else. The delegate made the decision four months after the interview.

11. The Authority concluded that the applicant and his representative have been given ample opportunity to provide further information about these matters had the applicant wished to provide that information, and he had not. The Authority also pointed out that it was not satisfied that the information was credible personal information because there was no supporting evidence. The Authority therefore found that it was not satisfied that the requirements of section 473DD(b) had been satisfied to justify the consideration of that information.

12. When the matter came on before me the applicant was not legally represented but was assisted by an interpreter in the Persian language. When I asked him what matters he complained of in relation to the Authority’s decision he claimed that his interview had not been properly interpreted. He described this interview as the “main interview” and I take this to be a reference to the interview with the delegate. He complained that the interpreter was interpreting from the Arabic language, however the interpreter was not an Iranian Arabic speaker but an Iraqi Arabic speaker and he said that this led to inaccuracies.

13. I asked him to specify what had been misinterpreted or incorrectly interpreted, and he said that there were two instances of errors in interpretation. First, he said the husband of the woman who he had tattooed without her permission and whose family had threatened the applicant was in fact an Iranian Revolutionary Guard. The applicant said to me this meant that he could not relocate anywhere within Iran and be safe because of the reach, he implied, of a member of the Iranian Revolutionary Guard.

14. As far as I can see, there is no mention in any of the material before me today that the husband of the woman was a Revolutionary Guard. That’s of some significance because the Authority concluded that the applicant would have been able to internally relocate from his town in which he and his family lived in southwest Iran to a predominately ethnically Persian area away from the fanaticism or alleged fanaticism of the man and his family.

15. So one of the grounds for dismissing the claim that the applicant had a well-founded fear of persecution because of the agency of this man was that the applicant could relocate.  The first instance of which I am aware of the claim being raised that that was not possible because the man was a Revolutionary Guard was today.

16. There is no evidence before me that the interpretation was inaccurate.  The applicant has not provided any transcript or any other evidence to suggest that he mentioned the Revolutionary Guard and that was not mentioned to the delegate.  I also note that particular claim about the Revolutionary Guard and the alleged misinterpretation was not raised in the submissions made to the Authority by the applicant’s representative or migration agent in submissions dated 2 October 2017.  No such claim of incorrect interpretation was made in these submissions nor was any claim that the husband of the woman who the applicant had tattooed was a Revolutionary Guard.

17. The second item of incorrect interpretation claimed by the applicant was he said the interpreter had not interpreted to the delegate the fact that the applicant claimed to have been imprisoned on two occasions in Iran.  That claim was made for the first time in the submission of the applicant’s migration agent that I have mentioned on 2 October 2017.  The migration agent did not suggest that the information had been provided to the delegate incorrectly or badly interpreted.  The submission was that this was new information and that the applicant had not had the opportunity to provide that information to the delegate.

18. That information was, as I have already mentioned, assessed by the Authority against the criteria in section 473DD. The Authority concluded that it was not new information, essentially because the Authority did not accept that the applicant had been unable to provide that information to the delegate.

19. I explained to the applicant as best I could the nature of judicial review. This is, the Court reviews a decision with an eye to identifying, if possible, jurisdictional error. I explained to the applicant that examples of jurisdictional error might include overlooking a claim, making an irrational decision on the evidence or failing to provide procedural fairness.

20. An erroneous interpretation that led a tribunal to fail to consider a claim or assess a claim in an inadequate way could well constitute jurisdictional error. However, it is well established that where an applicant asserts that there has been a misinterpretation leading to jurisdictional error, it is the applicant’s responsibility to bring forward evidence of that error. In this case there has been no evidence whatsoever brought forward.

21. The grounds of review set out in the application filed on 28 February 2018 simply say:

    The Immigration Assessment Authority made a jurisdictional error in deciding my case.

    No particulars of error are provided. The applicant did not point to any other grounds of error. I have read the entirety of the decision and no error is apparent to me. I am satisfied that the complaints that the applicant makes about the decision are not sustainable, primarily because in relation to the assertion of lack of interpretation, there is no evidence that that is the case. For that reason I propose to dismiss the application.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  26 March 2020