AZACV v Minister for Immigration

[2013] FCCA 1365

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZACV & ORS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1365

Catchwords:
MIGRATION – Refugees – Refugee Review Tribunal – judicial review – credibility assessment of applicant and applicant’s witnesses – decision not irrational or illogical – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.424

Minister for Immigration & Citizenship v SZMDS & Anor (2010) 240 CLR 611
Re MIMA; ex-parte Durairajasingham (2000) 168 ALR 407
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Eshetu (1999) 197 CLR 611

First Applicant: AZACV

Second Applicant: AZACW

Third Applicant: AZACX

Fourth Applicant: AZACY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 333 of 2012

Judgment of: Judge Simpson

Hearing date: 22 July 2013

Date of Last Submission: 22 July 2013

Delivered at: Adelaide

Delivered on: 17 September 2013

REPRESENTATION

Counsel for the Applicants:         Mr G Aitken

Solicitors for the Applicants: Winters Solicitors

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicants shall forthwith pay the first respondent its costs fixed in the sum of SIX THOUSAND SIX HUNDRED AND FORTY SIX DOLLARS ($6,646.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 333 of 2012

AZACV

First Applicant

AZACW
Second Applicant

AZACX
Third Applicant

AZACY
Fourth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. I have before me an Application for Review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 27 November 2012 affirming a decision of a delegate of the first respondent to refuse to grant the applicant’s protection visas.  As only the first applicant made substantive claims for the visa she will be referred to henceforth as “the applicant”. 

Background

1. The applicant is a citizen of Iran.  She arrived in Australia with her husband and three children on 7 July 2010 travelling on family visitor visas sponsored by her husband’s brother in Adelaide.  

2. The applicant applied for a protection visa on or about 1 October 2010. 

3. The applicant was interviewed by the delegate to the Minister (“the Delegate”) on 8 February 2011.  I have taken into account the comments of Winneke P in Lau v Citic Australia Commodity Trading Pty Ltd[1] in relation to an application that sought to invoke the discretion of the Court to set aside a default judgment that was entered regularly.  He stated that an applicant:

   “… must demonstrate to the Court grounds upon which the discretion ought to be exercised in his favour.  The primary consideration for the Judge is that there are merits in the defences to which the Court should pay heed.  If there are merits in one or more over those defences the Court will ordinarily exercise its discretion in favour of allowing the matter to pass to final adjudication, provided that the applicant shows that he has an adequate explanation for his failure to file a defence …

   It is not for the Judge, on an application of this nature, to determine the merits of the defence for himself or to seek to resolve factual issues that might at that stage appear to exist on the material before him.”

   [1] [1999] VSCA 34

4. The Delegate received information from the applicant’s brother-in-law saying that the applicant’s claims were false.  As a result the applicant was again interviewed on 29 November 2011.

5. The Delegate refused the applicant’s application on 19 March 2012. 

6. The applicant applied to the Tribunal for review of the Delegate’s decision on 20 April 2012. The Tribunal interviewed the applicant’s brother-in-law pursuant to s.424 of the Migration Act 1958 (Cth) (“the Act”) on 13 July 2012 and held a hearing on 17 July 2012.

7. On 18 September 2012 the Tribunal resumed its hearing to take evidence from the applicant’s husband who, after voluntarily departing Australia for Iran on 10 August 2010, had subsequently arrived by boat on Christmas Island.

8. On 19 September 2012 the Tribunal wrote to the applicant pursuant to s.424A of the Act.

9. The applicant claimed to fear harm in Iran for reason of her imputed political opinion.  She claimed her husband was a Mousavi supporter who had employed expelled university students in his business.  She says that her husband was arrested and detained for approximately 18 months after his return to Iran.  The applicant claimed that she would also be harmed in Iran because of her husband’s politics and also because she had no religion.

10. The Tribunal found the applicant and other witnesses before it to be not credible and their claim untrue.  The Tribunal rejected the applicant’s brother-in-law’s purported retraction of his evidence to the Delegate and his explanation for this retraction.  The Tribunal preferred the brother-in-law’s evidence to the Delegate to that given by him to the Tribunal. 

11. The Tribunal also found it implausible that if the applicant’s claims were true, that she and her husband would have been permitted to leave Iran without difficulty in 2010.

12. The Tribunal further noted contradictions between the applicant’s claims and the claims made by her husband on arrival at Christmas Island and subsequently that he did not have any political involvement in Iran.

13. The Tribunal rejected all the applicant’s claims concerning her husband’s alleged activities and imprisonment in Iran and found that her claimed fears on account of her real or imputed political opinion were not genuine.  The Tribunal also rejected claims that the applicant feared persecution because of having no religion or simply for being a woman.

14. As filed, the application had five grounds of application.  Grounds 3, 4 and 5 were abandoned shortly prior to the hearing of the matter.  The grounds of application that remain are as follows:

    “The Tribunal committed jurisdictional error:

    Ground 1

    1.By relying upon the evidence of a witness which evidence the Tribunal itself considered to have been entirely impugned.

    Particulars

    The Tribunal found the evidence of Mr Mahmood Andaveh to be so lacking in credibility it ought to be positively disbelieved (refer paragraph 163 of decision);

    The Tribunal notwithstanding such finding relied upon the Mahmood Andaveh’s evidence in reaching its decision (refer paragraph 167 of decision).

    Ground 2

    2.By wholly discounting the evidence of a material witness upon grounds which were unreasonable in fact and untenable at law.

    Particulars

    2.1The Tribunal discounted the corroborative evidence of Zohre Hesabizadeu;

    2.2The Tribunal discounted the evidence on the ground that Zohre Hesabizadeu was the wife of a witness whose evidence the Tribunal did not accept.”

15. This is a somewhat unusual matter.  In this case when the matter was being heard before the Delegate, the applicant’s brother-in-law, Mahmood Raza Andave, gave evidence that was damaging to the applicant’s case.  His evidence directly contradicted the applicant’s evidence.  The Delegate gave reasons which included details of the evidence that he received from Mr Mahmood Raza Andave:

    He said:

    “On 10 October 2011 I received a telephone call from Mr Mahmood Andave, the applicant’s Australian brother in law who had attended the interview on 8 February 2011 who advised that:

    •After his brother returned to Iran he called his family here to say that he had been arrested because of his political opinion.  Mr Mahmood Andave indicated that he now thought the arrest was a lie because a mutual friend of his and his brother Ahmad had just come back from Iran and had brought photos of himself and Ahmad socialising together in various settings.  He stated that this person had also brought gifts of gold from Ahmad for his wife and that Ahmad had sent $40,000 to his wife from Iran;

    •Mahmood stated that Ahmad had provided information to say he had been sacked from his position, but this was not true and that he was now retired;

    •His brother Ahmad is okay and the two had spoken together the day before;

    •His sister in law (the Applicant) had another telephone number which she used to contact her spouse after his return to Iran [this relates to the Delegate’s condition of the applicant’s telephone records];

    •Ahmad Andave had contacted both his brother Mahmood and his sister in law (Mahmood’s wife) and told them he would pay them not to provide this information to the Department; and

    •He was very upset that he was used as a pawn by his brother and sister in law.  He gave $15,000 as security for the visas and lost $7,500 of the amount paid and can no longer sponsor another family member if he wants to because of what they have done.

    On 21 October 2011 I received a further telephone call from Mr Mahmood Andave in which he advised that he had received photos of his brother at the wedding of a nephew three weeks earlier, which he undertook to forward to me.  I asked Mr Andave if he knew when the couple first talked after his brother Ahmad returned to Iran.  He said that the applicant had an Iranian mobile phone, but that a few months after the husband returned it was disconnected because she did not pay the account.  He said that she made calls from both booths, using phone cards.  He was not privy to her calls, and as he thought she was ringing her family he did not ask who she was calling.

    Mr Andave forwarded the photographs to me…”

16. The Delegate accepted the evidence of Mr Mahmood Andave and rejected the evidence of the applicant.  He decided that the applicant was not entitled to a Protection Visa.

17. The matter next came before the Tribunal.  Mr Mahmood Andave gave evidence at which time he retracted the adverse information that he had given to the Delegate.  He said that:

    “On reflection, he now thought the telephone call he had with Ahmad Andave was with another brother, and was done to trick him into thinking that his brother Ahmad was in detention in Iran.  He said his elder brother and his family were motivated to do this out of personal enmity against Ms Faribeh Karkvandi, arising out of perceived interference with arrangements for a wedding.  He also said that another brother had contacted him and said that Ahmad really was in trouble, and told him that the photographs provided were older photographs.”

18. The Tribunal, carefully in my view. considered all of the conflicting evidence and came to the conclusion that it did in paragraph 163 of its reasons that it disbelieved the claims advanced by the primary visa applicant and the evidence of all of the applicants witnesses and that it finds that none of the witnesses who have appeared before it in the Review, including the primary applicant, are to be accorded any credit.  Extensive reasons for those conclusions follow.

19. The applicant complains that the Tribunal was both illogical and irrational in its reasons by believing the evidence of Mr Mahmood Andave when he gave it to the Department. 

20. In Minister for Immigration and Citizenship v SZMDS and Anor[2] Crenin and Bell JJ said:

    “… the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based.  If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.” 

    [2] (2010) 240 CLR 611 at 647

21. Hayden J said [3]:

    “The issues was one on which minds might differ.  The Federal court evidently operated on one assumption or conclusion about that issue.  The Tribunal operated on another.  The difference was one of degree, impression and empirical judgment.  It did not stem from an error in logic by the Tribunal member.  The difference could not be said to reveal an absence of any basis whatsoever for her conclusion.”

    [3]     At para.78

22. In my opinion it cannot be said that reasonable minds could not differ or that there was no basis for the Tribunal’s conclusion in this case. 

23. The Tribunal’s finding that the applicant was not credible and her claims untrue, is a finding of fact par excellence.[4]  The Tribunal’s finding was open to it for the reasons it gives.  The Court cannot review the merits of the Tribunal’s decision.[5]

    [4]     Re MIMA; ex-parte Durairajasingham (2000) 168 ALR 407 per McHugh J

    [5] MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272; MIMA v Eshetu (1999) 197 CLR 611 at 56

24. The application should be dismissed.

25. I make the orders to be found at the beginning of these reasons. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date:  17 September 2013