BDG16 v Minister for Immigration

[2020] FCCA 482

FEDERAL CIRCUIT COURT OF AUSTRALIA

BDG16 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 482

Catchwords:
MIGRATION – Application for judicial review – protection visa – jurisdictional error – litigation guardian appointed – pro bono Counsel appointed – claim of statelessness – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: BDG16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 998 of 2016

Judgment of: Judge Riethmuller

Hearing date: 29 November 2019

Date of Last Submission: 29 November 2019

Delivered at: Melbourne

Delivered on: 5 March 2020

REPRESENTATION

Counsel for the Applicant: Mr Bayly

Counsel for the First Respondent: Mr Hosking

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.00.

3. There be no Order for costs against the litigation guardian.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 998 of 2016

BDG16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 15 April 2016. That decision affirmed the decision of a delegate of the first respondent not to grant the applicant a protection visa.

2. The applicant was born in Iran where he lived most of his life. The applicant arrived in Australia in July 2012 as an irregular maritime arrival. On 15 November 2012, the applicant applied for a protection visa on the basis of his claim to be a stateless Faili Kurd.

The Applicant’s Claims

1. The Applicant’s claims are summarised at [21] and [22] of the Tribunal’s decision as follows:

   21. The applicant's claims can be summarised as follows. He was born in 1974 in Gazikhan Sopla, Iran and lived most of his life until departing for Australia in June 2012 by airplane. He is a stateless Faili Kurd. His wife and two daughters and his father and three siblings reside his village in Iran. He worked on his father's farm and was unemployed. The Iranians would only offer to buy their food at reduced prices. He has a religious marriage certificate but cannot register with the authorities.

   22. The applicant is not sure of his parents' history and whether they ever lived in Iraq. His family were not issued a green or white card and he does not know why they were not issued with these documents. He was not allowed to go to school, work legally or given government health care. His children are not allowed to go to school or access government health care. Iranian society and government does not accept Faili Kurds. His area is a Kurdish area and the government is not interested in providing work or opportunities to people there. Other areas have factories and industry, but they have none in 11am. He fears the government will arrest him and put him into prison and ask questions about how he left the country and what he was doing overseas. His wife's brother and sister have been recognised as refugees in Australia on account of being stateless Faili Kurds. An officer of the Basij hit his wife because she was not wearing Islamic dress, 6-7 years ago. Twenty years ago he was lashed for drinking whisky and he had a criminal record.

2. The applicant appeared before the Tribunal on 14 April 2016 to give evidence and present arguments.

The Tribunal’s findings

1. The Tribunal considered the applicant’s claims but did not find the applicant to be a credible witness: see [23]. The Tribunal did not accept the applicant was a stateless and undocumented Faili Kurd, instead finding that the applicant was an Iranian national: see [24].

2. The Tribunal considered the evidence of witnesses on behalf of the applicant, namely his brothers’ in-law and his wife, and gave their evidence “some weight”: see [25]. The Tribunal did not give any weight to translated documents from a local council.

3. In considering the applicant’s credibility, the Tribunal took into account a psychologist’s report on the applicant’s intellectual level and anxiety. The Tribunal accepted the psychologist’s report, but ultimately found “it does not overcome the highly significant concerns I have about his credibility…”: see [27].

4. The Tribunal did not accept that the applicant was a member of a particular social group, namely “stateless Faili Kurds in Iran” and concluded that there was not a real risk the applicant would suffer significant harm on that basis: see [29] and [30].

5. The Tribunal considered the applicant returning to Iran as a failed asylum seeker at [31] to [33]. As the Tribunal found that the applicant departed Iran legally on his own passport, the Tribunal did “not accept that he will be punished for leaving the country illegally on false passport”.

6. The Tribunal considered the applicant’s claims being a Faili Kurd and accepted the applicant is a Faili Kurd: see [34]. The Tribunal considered the country information in relation to Kurd and did not accept that the applicant was not allowed to go to school, or could work legally, or access government health care: see [35].

7. The Tribunal accepted the evidence in relation to the incident of his wife being hit for not wearing a hijab but found, “Given the passage of time and that the applicant himself was not targeted… the chance or risk that the applicant will be seriously or significantly harmed in the reasonable foreseeable future to be remote”: see [36].

8. The Tribunal concluded the applicant did not face persecution on account of his religion, Kurdish race, or political opinions.

9. The Tribunal considered the applicant’s claim he had a criminal record from drinking alcohol 20 years ago (at [39] to [41]), which was raised at the hearing. The Tribunal did not accept that this occurred as it was not raised earlier and was in contradiction to his protection visa application form: see [39].

10. Ultimately, the Tribunal concluded (at [43]) that:

    43. Considering the applicant's individual circumstances and the independent country information on a cumulative basis, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran that then: is a real risk that he will suffer significant harm.

Application for judicial review

1. The applicant applied for judicial review in this court on 12 May 2016 and Orders were made by the Registrar on 12 October 2016 for the filing of material and setting the matter down for hearing.

2. The matter came before me on 17 July 2017.  Correspondence dated 14 July 2017 was received from a case worker from Baptcare requesting legal assistance for the applicant on the basis of his capacity to litigate and attached several medical reports. Orders were made adjourning the proceedings for enquiries to be made as to the appointment of a litigation guardian. It took some time for a litigation guardian to be appointed. As there was no state funding for a litigation guardian, the case could not proceed for some time. Fortunately, Sister Brigid Arthur agreed to carry out the role and was appointed by Orders of 11 October 2018.  A referral was also made for pro bono Counsel to assist the applicant. The matter returned to Court on 23 November 2018, however was adjourned for the parties to file their updated material. The matter was listed for hearing in August 2019, however I was required to sit in regional Victoria at short notice and the matter was again adjourned. After consultation with the parties, the matter was listed for hearing. Mr Bayly appeared as pro bono Counsel on behalf of the applicant.

Grounds of Application

1. By way of Amended Application filed 17 July 2019, the Applicant relied upon one ground, particularised as follows:

   1. The decision of the second respondent (the Tribunal) dated 15 April 2016 (the decision) is affected by jurisdictional error, in that the Tribunal failed to conduct the review required by ss 65 and 414 of the Migration Act 1958 (Cth) of the first respondent’s decision not to grant the applicant a Protection visa.

   Particulars

   1.1 The applicant claimed to be entitled to a Protection visa on the grounds that if he was required to return to Iran, then because of his Faili Kurdish ethnicity he would systematically be denied the basic civil, political and economic rights afforded to Iranian citizens by the government of Iran.

   1.2 The applicant claimed that:

   (a) Before he left Iran, he had systematically been denied the basic civil, political and economic rights afforded to Iranian citizens by the government of Iran.

   (b) Even if the Tribunal found that he had not systematically been denied the basic civil, political and economic rights afforded to Iranian citizens by the government of Iran before he left Iran, he would in any event systematically be denied those rights if he returned to Iran in the future.

   1.3 The Tribunal did not address the applicant’s claim that whatever the Tribunal might find was the position before the applicant left Iran, the applicant would systematically be denied the basic civil, political and economic rights afforded to Iranian citizens by the government of Iran if he returned to Iran in the future.

2. The case presented a difficult mixed question of fact and law for the Tribunal. Whilst the applicant is a Faili Kurd, the case concerns his status in Iran. It seems he could fall within one of three categories:

   a)a stateless and undocumented Faili Kurd who was living in Iran;

   b)a Faili Kurd registered in Iran as a refugee (a ‘white card’ or ‘green card’ holder); or

   c)a Faili Kurd who is an Iranian citizen.

3. The ground of judicial review sets out the claim on the basis that the applicant is not a citizen. The Tribunal made a specific finding at [24] saying:

   24. Given my highly significant concerns about the applicant's credibility, I do not accept that he is a stateless and undocumented Faili Kurd. I find that he is in fact an Iranian citizen who left Iran lawfully on his own passport.  I find that Iran is his country of nationality for the purposes of the Convention and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act [emphasis added].

4. The reasons for this finding are set out at [23], where the Tribunal says:

   23. I have considered carefully the applicant's claims but I do not find that he is a credible witness. I do not accept that he is an undocumented Faili Kurd and I find that he is an Iranian national. I do so for the following reasons:

   ·   The applicant told the Tribunal that his father had rented the land that the family lived on and that they got possession of it as the owner. He commented that they lived in a small village and had oral agreements. As set out in the delegate's decision (a copy of which was submitted to the Tribunal) he had said his father owned the land. He stated to the delegate that his father had paid a large amount of money and there was some local document to show he owned the land. I have considered all these explanations but I do not consider them to be plausible as country information indicates that identity documents would be required to own a house. [Footnote omitted] That his family owns land strongly suggests that they (and the applicant) are not undocumented persons as the applicant claims.

   ·   The applicant told the Tribunal he left Tehran airport on a fake Iranian passport that contained his name and correct details about him. He said that he did not have any problems getting through the airport and did not have to pay money. The applicant in response to country information put to him said the smuggler came to the airport with him and he assumed this person bribed staff at the airport. However, this was inconsistent with his earlier statement that he did not have to pay money and I consider it speculative that a smuggler paid such bribes. Country information before the Tribunal indicates that to obtain an Iranian passport a person needs to go to police station to be finger printed and have their identity checked [Footnote omitted] which the applicant did not do. Furthermore, the Australian Department of Foreign Affairs and Trade (DFAT) have stated that whilst it might be possible to obtain a genuine identification document with the intention of impersonating another person, sophisticated border control procedures would make it difficult to use in order to leave Iran. [Footnote omitted] Country information further indicates although false Iranian passports can be purchased easily on the black market, the authorities can identify these by checking them against the law enforcement database which tracks the issue of passports. [Footnote omitted]  Passports are checked at the airport against a computer system which displays the data of the passport holder and a photograph of the passport holder. [Footnote omitted]  It is extremely difficult to leave Iran through the airport using a false passport and many staff members would have to be bribed as there are several checkpoints at the airport. [Footnote omitted]  Considering the whole of the country information and the applicant's' account of how he departed Tehran Airport, I consider his ability to depart Iran on a passport detracts from the credibility of his claims.

   ·   The applicant gave significant and fundamentally inconsistent evidence on a number of important matters. The applicant told the Tribunal that 10 years ago he went to a registry office in Ilam to obtain citizenship and they told him he needed a green card to apply. However, earlier he had told the Tribunal that he was not aware of the green cards when he was in Iran and had only heard about this when he came to Australia. When this was put to him he said he went to the registry office and they did not give him a birth certificate and that he had heard of the green card in both Australia and Iran. I have considered his explanation but I do not consider it satisfactorily explains the inconsistency. Furthermore, he told the Tribunal that his father went to the authorities to try to get documentation but he himself did not go directly to the authorities. However, he later stated he had gone to get the documentation but there was no answer. The applicant then commented that he never went to the authorities but just asked around about it; but he then said he went and he didn't get anything. The applicant said this all occurred about 14-15 years ago and he was struggling to remember. I have considered his responses and his intellectual levels (referred to below) and the passage of time, however his evidence was very contradictory on this point and I find it detracts from his credibility.

   ·   Country information viewed as a whole indicates that the number of unregistered Faili Kurds in Iran is likely to be small. DFAT in December 2014 stated that beginning in the late 1970s, hundreds of thousands of Faili Kurds were stripped of their Iraqi citizenship and expelled from Iraq, mostly to Iran. Estimates of the numbers reported deported range from 130,000 to 300,000 though exact numbers affected are difficult to verify. I have taken into account the country information referred to by the agents concerning the difficulties that Faili Kurds face in obtaining Iranian citizenship, however DFAT have referred to a credible academic report (Geraldine Chatelard, Migration from Iraq between the Gulf and Iraq wars (1990·2003),  University of Oxford, 2009) that estimates that prior to 2003, Iran had granted citizenship to up to 100,000 Faili Kurd refugees of Iraqi origin, who could prove their Iranian origins though in-country sources were unable to verify this information. DFAT also state that it is likely that the majority of Faili Kurds refugees in Iran are registered as refugees. They state that though reliable estimates of the number of unregistered Faili Kurds in Iran are unavailable, a credible academic estimate in 2004 suggested that up to 8000 Faili Kurds remained stateless in Iran (a figure that likely incorporates both registered and unregistered refugees). [Footnote omitted]  DFAT had earlier reported in 2010 that approximately 48,000 Iraqi refugees had been registered and they had been told of a further 4,000 unregistered Iraqi refugees. [Footnote omitted]  Though not conclusive of itself, the likely small number of unregistered Faili Kurds in Iran is a further reason that detracts from the credibility of the applicant's claims.

5. The applicant argues that the Tribunal considered him a ‘documented Faili Kurd’ and that the Tribunal failed to consider whether he would have lost this status upon leaving Iran: see [14] of applicant’s Outline of Argument filed 17 July 2019.

6. The argument that the Tribunal only found that the applicant was a ‘documented Faili Kurd’ must be considered in light of the findings of the Tribunal as a whole, which include (at [29]) where the Tribunal says:

   29. Given my findings, I do not accept that the applicant is a member of particular social groups consisting of “stateless Faili Kurds in Iran”, “undocumented Faili Kurds in Iran” or “stateless refugees” or “undocumented refugees: As I have found he has Iranian nationality, I do not accept that he will be imputed as an Iraqi national or citizen. Considering the applicant's individual circumstances, I find that he does not face a real chance of persecution in the reasonably foreseeable future on these bases. Given my findings, I do not accept that the applicant faces a real chance of persecution in the reasonably foreseeable future for reasons of any particular social group or any imputed nationality.

7. In this case the Tribunal found that the applicant is a citizen of Iran. As a citizen there is no issue about discrimination that was raised. The claims before the Tribunal were that ‘documented’ Faili Kurds faced this difficulty, not citizens. This was set out in information provided by the applicant’s solicitors in a letter of 11 April 2016 (at p.278 of the Court Book) in an extract from a PAM guideline noting that:

   ·   Faili Kurds who are citizens of Iran appear to face little to no discrimination in accessing services. (For DFAT’s assessment of Faili Kurd refugees’ access to services see 5.70, 5.77, 5.80)

   ·   DFAT was not aware of cases where Faili Kurds who were Iranian citizens faced adverse information from the authorities because of their ethnicity.  DFAT contacts were not aware of Faili Kurds not approaching Iranian authorities due to fear of mistreatment, although they were not prepared to rule this out.

8. Whilst the applicant clearly raised an argument about whether he could obtain a new ‘white card’ if returning as a refugee (at CB p.285), the findings of the Tribunal are that he is a citizen of Iran and that the applicant has no need for a white card: the issue is not relevant if he is a citizen.

9. In the circumstances of this case, the Tribunal found the applicant to be a citizen of Iran and that he did not face a real risk of harm in his circumstances.  As the Tribunal found him to be a citizen it was not open for the Tribunal to find he was in either of the other two categories set out above. Had the Tribunal been unable to reach a conclusion as to which category he fell within, it would have been necessary to consider the consequences in each category; however that was not the result of the findings in this case.

10. The application must therefore be dismissed.

Costs

1. Ordinarily costs follow the event. In this case the litigation guardian Sister Brigid Arthur has carried out her role as an act of charity to assist the applicant in presenting his case. The case, unlike an ordinary civil suit, concerns protection of a person claiming to be a refugee – it could hardly have been struck out even if there was no litigation guardian. 

1. Sister Brigid Arthur has properly carried out her role and done nothing to cause costs to be wasted. The nature of the litigation and the underlying issues effectively required the litigation guardian to continue the proceeding even if the prospects of success were low. It was not a case that could be settled or discontinued by the litigation guardian given her obligations to the applicant. Furthermore, this is not a case where the litigation guardian has instigated the claim, rather, she has been involved only to avoid injustice to the applicant given his lack of capacity to litigate.

2. In the circumstances of this case it would not be appropriate for there to be a costs order against the litigation guardian, but only the applicant himself.

3. I would order costs at the scale fee against the applicant personally, and no order for costs against the litigation guardian.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate:   

Date:  5 March 2020