AYN16 v Minister for Immigration

[2017] FCCA 2991

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYN16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2991

Catchwords:
MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth).

Cases cited:

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

Applicant: AYN16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 839 of 2016

Judgment of: Judge Riethmuller

Hearing date: 7 September 2017

Date of Last Submission: 7 September 2017

Delivered at: Melbourne

Delivered on: 6 December 2017

REPRESENTATION

Counsel for the Applicant: Mr Solomon-Bridge

Solicitors for the Applicant: Victoria Immigration Lawyers

Counsel for the First Respondent: Mr Yuile

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s cost fixed in the sum of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 839 of 2016

AYN16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is an Iranian national.  The applicant left Iran in December 2011 and travelled to Jakarta in Indonesia, where he remained until May 2012.  Thereafter he moved to Bogor in Indonesia until August 2012 when he arrived in Australia as an unauthorised maritime arrival.  He had previously visited Thailand in 2011 for a holiday for 15 days before returning to Iran.  He said that he travelled to Indonesia in December 2011 as he received a one-month tourist visa and thereafter remained illegally in Indonesia.  He did not have his passport, as he said it was held by Indonesian authorities as a result of him applying for a further visa and not following up the issue before he left Indonesia. 

2. The applicant applied for a Protection (Class XA) visa on 10 December 2012.  The delegate of the Minister refused to grant the visa on 6 January 2014.  The applicant sought review in the Tribunal, which affirmed the delegate’s decision to refuse to grant the visa on 24 March 2016.  The applicant’s claims for protection relate to two principle events.  Firstly, a dispute he says that he had with the brother of his then fiancée in 2011, and secondly, as a result of tattoos that he obtained prior to arriving in Australia, the first being a tattoo of the logo of the Liverpool Football Team on his shoulder blade (obtained in Thailand in 2011) and later tattoos of the names of his three brothers on his right forearm (obtained on his way to Australia in 2012). 

3. The Tribunal did not find the applicant to be a credible witness (see paras.88 to 89), ultimately concluding:

   95. The Tribunal does not accept the applicant’s explanation that he had become confused at the hearing and that was why he could not remember the correct dates.  This is because, as explained above, it was not only the version presented early on during the hearing – when the applicant was allegedly confused – that left an unexplained gap from August to December 2011.  The applicant’s original version set out in his 2012 statutory declaration also did not make sense, because if the argument with Mahyar occurred 5 months after the applicant’s military service, it means it happened in September or October 2011, not in December 2011.

   96. The Tribunal considers that the reason why the applicant had several different versions of when things took place was because he was never engaged to a girl called Neda.  The Tribunal notes that only the last version proposed by the applicant made sense and the Tribunal formed the view that the applicant made it up after he realised that according to his earlier versions of events, there was a large gap in time between the argument with Mahyar and the departure from Iran.

4. Thereafter the Tribunal listed a number of other matters that told against the applicant’s credibility, ultimately concluding:

   109. The Tribunal finds that the applicant was never engaged to a girl called Neda and did not have an argument with a man called Mahyar; he did not express anti-government views to people in Iran, nor did he make disparaging comments about Islam.  He has fabricated the reasons why he left Iran.

   110. His family has not been threatened, harassed, investigated, summoned or accused of helping the applicant flee the country.  The Tribunal finds that no member of the applicant’s family has had any problems with the authorities related to the applicant.  While his parents may have moved to the north of the country and his brother may have moved house in Tehran, the Tribunal finds that no member of the family has had to move because of actual or feared problems with the authorities.

5. The Tribunal went on to consider the applicant’s tattoos, accepting that he would not be permitted to go swimming in Iran public pools, as tattoos are considered unclean according to Islam as practised in Iran.  However, the Tribunal did not accept that this would constitute serious harm as defined in the Migration Act 1958.

6. The Tribunal noted that the country information showed that there were tattoo parlours in Iran and that the applicant agreed that people in Iran have tattoos done, but said that it was illegal:

   80. The Tribunal advised the applicant that according to country information from DFAT there are many beauty parlours which offer tattoos in Iran (DFAT Country Information Report (26 November 2013), at 3.62.) and his tattoo is not obscene, anti-Islam or political.  He said that it is not like here, but it is not legal, people do them in their shops or in private home.  He agreed that people in Iran do have them done, but it is illegal.

7. Ultimately, the Tribunal concluded:

   117. The fact that the applicant had a tattoo done in Thailand in August 2011 and then returned to Iran without any problem on return leads the Tribunal to conclude that there is no real chance of serious harm amounting to persecution for reasons of his tattoo or any other aspect of his appearance.  The authorities are likely to notice that he has tattooed the names of his brothers on his forearm.  It may lead to some low level discrimination and harassment by the authorities.  However, as the applicant himself admitted, it is not uncommon for people in Iran to get tattoos.  There is nothing offensive, unislamic or political about his brothers’ names.

   118. The Tribunal considers that the likelihood that the applicant will be forced to strip or take off his top and thus reveal the Liverpool tattoo is remote, less than a real chance.  Further and in any event, even if the Tribunal is wrong about this, the Tribunal considers that even though Liverpool is a football club from a western country, the UK, there is nothing inherently political or religious in the tattoo.  It is the symbol of a sports club and football (soccer) is known to be a very popular sport in Iran.  Thus, if the authorities were to discover that the applicant has tattoos on his forearm or his back or both, this would still not lead them to impute him with anti-government or anti-Islamic views.  Therefore, there is less than a real chance that the applicant will be persecuted for reasons of having tattoos.

8. The applicant pressed only two of the three grounds set out in this application; being grounds 1 and 3.

Ground 1

1. The first ground of the applicant’s application is as follows:

   1.  The Second Respondent committed jurisdictional error by misconceiving the nature of its functions and/or by coming to an irrational or illogical conclusion.

   Particulars:

   The Second Respondent purported to reject the applicant’s claims in their entirety, based entirely on objectively minor inconsistencies in the applicant’s evidence. 

2. The applicant challenges the Tribunal’s findings against his credit with respect to the incidents concerning his alleged fiancée.  Counsel for the applicant commenced the argument by noting that it is not the situation that a credit finding “may never found a conclusion of jurisdictional error”, relying upon comments of Robertson J in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at para.78. Robertson J went on to qualify this statement, saying:

   … particularly where a finding on credit on an objectively minor matter of fact is the basis of a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.

3. The applicant thereafter went on address each of the findings against him that found the ultimate conclusion that his claims were rejected on the basis of credibility.  There were discrepancies in the dates given by the applicant as to when he became engaged and when he had an argument with the brother of his fiancée.  On the argument of the applicant, this was a mistake as to whether it was August or December 2011 that the argument occurred.  Similarly, a mistake as to whether or not the courtship with his fiancée began one month after his military service or whether he was engaged one month after his military service. 

4. At para.90 the Tribunal noted that the applicant had been consistent throughout, that he completed his military service in April or May 2011, and that he had travelled to Thailand in early August 2011.  It was also consistently said that he left Iran for Australia in December 2011.  The discrepancies arise not from the applicant simply picking or identifying months when events occurred, but rather the sequencing of his engagement and the argument, before or after his holiday in Thailand.  Thus, for example, in his statutory declaration in 2012 he was engaged one month after the end of his military service and had an argument with his fiancée's brother four months later, which meant the argument happened in September or October 2011, some two to three months before he left Iran.  When this was put to him he then said that the argument occurred a week or two after he returned from his holiday.  When it was identified to him, that that still placed the argument long before the date that he left Iran, he said that he had made a mistake and that the argument happened in December 2011. 

5. The Tribunal considered whether or not the applicant had simply become confused at the hearing:

   95. The Tribunal does not accept the applicant’s explanation that he had become confused at the hearing and that was why he could not remember the correct dates.  This is because, as explained above, it was not only the version presented early on during the hearing – when the applicant was allegedly confused – that left an unexplained gap from August to December 2011.  The applicant’s original version set out in his 2012 statutory declaration also did not make sense, because if the argument with Mahyar occurred 5 months after the applicant’s military service, it means it happened in September or October 2011, not in December 2011.

6. In a case where the confusion is not simply an abstract confusion as to significant dates, but also a confusion that tells in the sequencing of events, I am not persuaded that such reasoning could be characterised as an objectively minor matter of fact, rather, it is commonly a significant foundation for a determination of credibility of a person’s evidence. Importantly, it is a credibility finding based upon an objective analysis of the various versions given, not simply upon a subjective impression of the demeanour of the person when giving evidence. 

7. These matters provide a sufficient foundation for rejecting the applicant’s credit, as the Tribunal did, saying:

   96. The Tribunal considers that the reason why the applicant had several different versions of when things took place was because he was never engaged to a girl called Neda.  The Tribunal notes that only the last version proposed by the applicant made sense and the Tribunal formed the view that the applicant made it up after he realised that according to his earlier versions of events, there was a large gap in time between the argument with Mahyar and the departure from Iran.

8. The Tribunal also identified other matters that told against the applicant’s credibility.  The first was his claim that the authorities had been harassing his family on the basis that they had facilitated his departure and escape from justice, but that no member of his family had been charged or detained.  The Tribunal found this “implausible in light of the available country information”, as identified at para.98 and following.  Again, it appears that such a conclusion was reasonably open to the Tribunal.

9. The third matter the Tribunal referred to was a common-sense appraisal of the applicant’s alleged behaviour towards his fiancée’s family.  The Tribunal said:

   101. The third credibility issue the Tribunal raised was this.  If the applicant was keen to marry Neda, it would have been a foolish act to argue with her relatives, who may scuttle the marriage.  Further, the Tribunal suggested to the applicant that it would be even more foolish to argue about politics and religion with a person whom the applicant did not know and who was clearly quite religious.  He said he was angry that they interfered with his life so much and dictated even when he needs to get married.  After what he had seen in the military, he could not stand it anymore.  He offered an alternative explanation – he thought of Neda and her relative as “family” and he felt free to share his honest views about politics and religion.

   102. The Tribunal does not accept either explanation.  The fact that Mahyar was insisting that the wedding must take place on an important day in the Islamic calendar would have left absolutely no doubt in the applicant’s mind that Mahyar takes religion seriously and that he is probably politically conservative.  Mahyar’s attitude to religion was to a large extent what precipitated the argument.  Further, the statutory declaration does not even mention an argument.  It states that the applicant expressed his anti-government views and that he did not believe in Islam, then explained the tortures that he witnessed during his military service.  Unaware that there may be a problem, a few days later he tried to contact Neda’s family to find out what the marriage date was going to be and it was only then that Mahyar was angry at the applicant. The statutory declaration implies that the applicant was not angry and there was no argument.

10. Again, such a conclusion appears to be reasonably open to a Tribunal member in assessing evidence in a case such as this.

11. The Tribunal also found that the applicant’s evidence with respect to people being placed in shipping containers, that he said he witnessed during his military service, was implausible.  The Tribunal said:

    103. Fourthly, the Tribunal advised the applicant that it had read a lot of country information about the suppression of the protests in 2009-2011 and it had not come across country information about people being put in containers.  He said that the majority of the people were taken to other places and perhaps that is why the Tribunal has not come across one of the persons detained at the base where he was.

    104. The Tribunal is mindful that it should not require an applicant to provide evidence from independent sources in order to make out his case.  Further, the absence of independent country information is not proof that an event definitely did not take place.  However, in light of the fact that according to the applicant many busloads of people were taken to this facility and placed in containers, the Tribunal would have expected that independent NGOs or bodies such as the UK Home Office or the US Department of State would have been made aware of this practice and reported it.

    105. There are additional reasons why the Tribunal concluded that the applicant did not witness people being detained in containers.  During the hearing, the applicant said that people were placed in enclosed shipping containers and that it was in the middle of winter.  When asked how long people were kept in containers for, he replied without any hesitation that it was 4 days.  By contrast, in his statutory declaration the applicant said that Sepah would imprison people “in small containers for two or three days exposing them to the sun without providing food or anything else.”  In terms of how long the applicant served at the prison grounds where people were being detained in containers, the applicant provided two different versions at the hearing: first, that he worked as a welder for about a month and as a guard for another 4 months, then that he was at the prison for a total of about 2 months.

12. It is not logically inconsistent for the Tribunal to have adopted the approach that they did with respect to this issue.  It will often be necessary for a Tribunal to assess the plausibility of claims against the background of events said to have occurred, and the country information.  This is the central task of a Tribunal member in assessing the veracity of claims.  I am not persuaded that such reasoning was unavailable to the Tribunal in the context of this case.

13. The fifth significant matter relied upon by the Tribunal is less clear.  The tribunal said:

    106. Another reason why the Tribunal does not accept the applicant as credible concerns Mahyar’s alleged behaviour in the days after the argument.  According to the statutory declaration Mahyar did not tell the applicant he was with Sepah until some days after the argument when the applicant called Mahyar.  For some reason he himself allegedly warned the applicant that he was going to tell the Sepah and they were going to capture and arrest the applicant. He repeated this claim at the Tribunal hearing.

    107. Some days later the applicant was contacted not by the Sepah, not by Mahyar, not by Neda, but by Neda’s friend from university.  The applicant claimed at the hearing that Neda had a phone in her possession, but instead of calling or texting the applicant directly, she called her friend who then contacted the applicant to warn him that the Sepah will arrest him.  The Tribunal asked why Neda did not call him directly.  He replied that maybe her brother threatened her or maybe she did not want to call the applicant in case he rang back the family and then her brother would find out that Neda had contacted him.  The Tribunal asked why being called by Neda’s friend made any difference, that is, he could still call Neda’s family, even if she did not contact him directly.  The applicant did not really answer the question.  He said replied that after “this” he did not call the family again.

    108. The Tribunal found this aspect of the applicant’s claims to be implausible.  The Tribunal fails to see why if the applicant did not believe Mahyar’s direct threats, he believed Neda’s university friend who was told by Neda who was told by Mahyar that Depah would try to arrest the applicant, something the applicant had already been told directly by Mahyar.  The Tribunal also considers that the applicant did not adequately explained why Neda would not have called him directly to warn him.

14. This assessment of the events is not so obviously available as a conclusion as the preceding matters.  It is nonetheless an assessment open to the Tribunal on the facts as presented.  In light of the foregoing factors it could only be a minor factor in any event.

15. Looked at as a whole, it is clear that the Tribunal has taken a nuanced approached, carefully analysing a number of specific claims and details of the events said to have occurred, before ultimately concluding that it rejected the applicant’s claims on the basis of his credit. 

16. This is not a case where one minor error or mistake has led to the Tribunal rejecting otherwise significant claims.  Rather, this is a case where the versions given by the applicant contain a number of discrepancies and circumstances from which a Tribunal could reasonably conclude that the applicant’s credit was lacking and reject his claims.  I am not persuaded that the applicant has established jurisdictional error in this regard, rather.  The applicant’s case has been a detailed analysis that effectively sounds as a merits-based claim.  I therefore dismiss this ground.

Ground 3

1. The third ground of judicial review (the applicant not having pressed the second ground) is framed as follows:

   3.  The Second Respondent committed jurisdictional error by failing to consider the applicant’s claims or their component integers and/or by coming to an irrational or illogical conclusion.

   Particulars:

   The Second Respondent found that the tattoos on the applicant’s body were not “inherently religious or political” and therefore he would not be imputed with anti-government or anti-Islamic views, notwithstanding the applicant’s evidence that, according to Islam, tattoos are haram and if you have tattoos then you are considered always unclean.

2. The applicant claims that the Tribunal erred in considering the tattoos question on the basis of an argument that the Tribunal limited itself to the question of whether or not the tattoos would result in him being imputed with anti-government or anti-Islamic views, and thereby failed to consider the more basic claim that, as tattoos were considered dirty or unclean and contrary to Islamic principles, persons with tattoos would be arrested and have their tattoos burned with a hot iron.

3. However, the Tribunal squarely considered whether or not tattoos, of themselves, would result in a real chance of serious harm, in light of the fact that there were many beauty parlours that offered tattoos in Iran, as set out in the country information (see para 80.), and finding that it was not uncommon for people in Iran to have tattoos (see para. 117)

4. The Tribunal thereafter goes on to consider whether or not the nature of the tattoos would lead to him being imputed with anti-government or anti-Islamic views, and stated:

   118. The Tribunal considers that the likelihood that the applicant will be forced to strip or take off his top and thus reveal the Liverpool tattoo is remote, less than a real chance.  Further and in any event, even if the Tribunal is wrong about this, the Tribunal considers that even though Liverpool is a football club from a western country, the UK, there is nothing inherently political or religious in the tattoo.  It is the symbol of a sports club and football (soccer) is known to be a very popular sport in Iran.  Thus, if the authorities were to discover that the applicant has tattoos on his forearm or his back or both, this would still not lead them to impute him with anti-government or anti-Islamic views.  Therefore, there is less than a real chance that the applicant will be persecuted for reasons of having tattoos.

5. A fair reading of the Tribunal’s decision shows that the Tribunal considered whether or not the tattoos, of themselves, were likely to result in a real chance of serious harm to the applicant.  It is unsurprising that this claim was rejected in light of acceptance that there are beauty parlours in Iran that offer tattoos and that many people have tattoos.

6. It was important in the context of this case and the particular country concerned that the Tribunal to go on to consider whether or not the nature of the tattoos themselves would lead to the applicant being imputed with anti-government or anti-Islamic views, which may be a basis for persecution. 

7. In these circumstances, I am not persuaded that the Tribunal has failed to deal with an integer of the claim.  If anything, had the Tribunal failed to deal with both the claim relating to having tattoos, and the consequential possibility of imputation of political or religious views as a result of having tattoos, the applicant may well have had an argument that the Tribunal failed to deal with all of the integers that flowed from the factual allegations.  However, that was not the case, as the Tribunal dealt with both issues.

8. In the circumstances, I therefore find that the applicant has not established a ground for judicial review and I must therefore dismiss the application. 

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 6 December 2017