BEE17 v Minister for Immigration

[2018] FCCA 98

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEE17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 98

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

First Applicant: BEE17

Second Applicant: BEF17

Third Applicant: BEE17 AS LITIGATION GUARDIAN OF BEH17

Fourth Applicant: BEE17 AS LITIGATION GUARDIAN OF BEI17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 258 of 2017

Judgment of: Judge Vasta

Hearing date: 15 January 2018

Date of Last Submission: 15 January 2018

Delivered at: Brisbane

Delivered on: 15 January 2018

REPRESENTATION

Counsel for the Applicants: Mr W.J. Markwell

Counsel for the First Respondent: Ms Graycar

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The Application filed on 17 March 2017 as amended on 31 October 2017 and 15 January 2018 be dismissed.

2. The Applicants pay the First Respondent’s costs of and incidental to the Application fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 258 of 2017

BEE17

First Applicant

BEF17

Second Applicant

BEE17 AS LITIGATION GUARDIAN OF BEH17

Third Applicant

BEE17 AS LITIGATION GUARDIAN OF BEI17

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed on 17 March 2017, the Applicant, BEE17, and with him, his family group, BEF17, BEH17 and BEI17, have asked the Court to review a decision of the Immigration Assessment Authority (“the IAA”) made on 21 February 2017.  That decision of the IAA affirmed a previous decision of the delegate of the Minister not to grant the Applicants protection visas. 

2. The short facts of the matter are these.  The Applicants are all citizens of Iran.  I should say that I will refer to the First Applicant as just simply the Applicant.  The other Applicants do not have their own claims but are Applicants based on a family basis on the First Applicant’s claim.  They do not have separate claims of their own. 

3. The Applicant is a person in his 40s who was married to his wife and they had two children.  The Applicant is somewhat proficient in computer hardware networks and he worked in different organisations from 1993 to 2013, including in the government. 

4. From 2009, he started providing his own services independently and became part of a company called “Dr PC” that repaired and maintained computers.  One of his clients included a Mrs Karroubi.  Mrs Karroubi is the wife of the well-known Mehdi Karroubi.  That person was a clergyman and a candidate for election in 2009 and he espoused values that were part of the Green political movement in Iran. 

5. The Applicant made a number of claims.  These were that because of the relationship he had with Mrs Karroubi as his client, he was then linked to Mr Karroubi and then perceived by persons to be of that particular political persuasion.  He said that after the 2009 election, in February 2011, the Karroubis were under house arrest and he ceased working for them. 

6. The Applicant claimed that some 16 months to 18 months later, he started receiving phone threats at work and his wife received threatening calls at home. These threats were to do with the perceived relationship with the Karroubis.  The wife claimed that she was followed when she was driving and that the daughter, they felt, would have been the subject of some harm or kidnapping. They decided to stop sending her to school and decided to school her at home. 

7. In March 2013, the wife and daughter were shopping and they were attacked and the family moved. They moved to one of the grandparent’s house.  And on 18 April, there was an incident that occurred at the workplace of the Applicant which led to all of the Applicants leaving Iran on 8 May 2013.  They were able to legally leave Iran but got to another country and then became unauthorised maritime arrivals. 

8. The Applicant fears that he will be harmed, harassed, killed, kidnapped or mistreated if he is returned to Iran because of his perceived support of the Karroubis. 

9. The problem that the Applicant had is that the story that he told at the interview he had with the delegate was quite a different one to the story that he had told upon first arriving.  It has been said by Counsel for the Applicant that one has to take quite some care with looking at these sorts of interviews, simply because people are fleeing totalitarian regimes and coming to a country where they are being interrogated in many respects by persons in authority. Counsel submitted that such persons fleeing the totalitarian regimes are going to be somewhat reticent to be open and forthcoming with the authorities. 

10. Even taking that aspect into account, the Immigration Assessment Authority came to the conclusion that the Applicants were telling stories that were quite inconsistent with what had been previously told.  There were quite inconsistent details with regard to the threatening phone calls.  There were inconsistencies with the series of events that occurred in at different times and because some of the information that was given at their initial interviews was to paint authorities in Iran in a bad light, it could not be said that the failure to disclose all of that information at the first opportunity was because of a fear of authorities or a fear of the backlash or Iranian authorities if they were returned. 

11. If such were the motivation for the non-disclosure then there would have been absolutely no disclosure about the workings of Iranian authorities or of the Basij.  But there were such disclosures which were built upon, added to and embellished in subsequent retellings by the Applicant of his particular story.  There were other aspects of the story that were added to during the hearing before the IAA as well.  At the end of it all, the IAA did not accept the Applicant as a witness of truth. 

12. At paragraph 82, which is a very long paragraph, which I will read into the record, the IAA made its findings of fact.  The IAA said this: 

    “82. Given the applicant’s problematic evidence, and for the reasons given above, I do not accept that the applicants received phone threats, the applicant’s wife was followed by motorists, someone attacked the applicant’s wife and daughter or attempted to get the applicant daughter in March 2013, that the applicant wife or daughter were assaulted or attacked, the applicant daughter had been a victim of assault on several occasions.  I do not accept the applicants were told that they would be killed for actual or perceived support of the Karroubis. I do not accept that on 18 April 2013, the authorities or anyone followed the applicant from his office, raided or came to the applicant’s home, or at that they escaped from a home or that the applicant wife had a miscarriage for the reasons claimed.  I do not accept the authorities or anyone seized the applicant’s equipment or searched the office premises.  I do not accept that the authorities or anyone wished or planned to question or arrest the applicant or to gain access to the Karroubis’ information or computers through the applicant. I do not accept that the applicants moved residences or the applicant daughter stopped attending school for the reasons claimed.  I do not accept that the applicants were of interest to the authorities, including the Basij, the police, the Sepah, Khamenei supporters or extremists or anyone for reasons related to the applicant’s connection or knowledge of the Karroubis, including the applicant’s aunt’s association with the Karroubis, the applicant’s work or involvement with the Karroubis, the elections or the Green Movement, or the applicant’s actual or perceived support of the Karroubis or the Green Movement, or their real or imputed views or political opinion…”

13. The IAA went on to say that they were prepared to accept that the Basij did come to the Applicant’s office on 18 April 2013.  However, it was in circumstances where the Applicant and his daughter had gone to his office (whether that be because it was a Thursday and the start of the weekend or whether that be because there were not too many people around).  But the IAA found that the Applicant himself started to play music and that the daughter started looking on the computer about information about gynaecology. 

14. The IAA accepted that the Basij came there and questioned the Applicant as to why he had music.  The IAA accepted that the Basij saw that the daughter was conducting a search about women on the computer and that they assaulted her, throwing her so that she hit the knob of the door.  The Applicant, as any father might do, started fighting with the Basij, which resulted to him in receiving some injuries and equipment being damaged during that fight.  However, the IAA found that that was the end of the altercation and that the Basij left. 

15. The IAA came to the conclusion that this one incident that occurred because the Applicant was playing music was not sufficient to satisfy the IAA that the Applicants face a real chance of harm because of the fact that the Applicant liked music or anything of that nature.  The IAA did not accept that the Basij or whoever it was that came into that room followed the Applicant and the Applicant daughter home from that office.  The IAA came to the conclusion that there was no credible evidence to indicate that the Applicants were of interest to the Basij or anyone else following that particular incident. 

16. Part of the reasoning for that is that if the Applicants were of interest and were trying to escape because the Basij knew who they were or had monitored them or followed them, then it would be very odd that the Applicants were able to obtain their passports some 10 days prior to their departure from Iran and to legally leave Iran.  Such a series of events strongly suggests that the Applicants were not of interest to the authorities for any reasons.  That being so, it is difficult to see how it is that they satisfy the criterion in the Act either for refugee protection or for complementary protection. The IAA then affirmed the original decision. 

17. There was an amended amended application filed by leave today. That application has the following grounds of appeal which I will deal with seriatim. 

18. Ground One was that “the second respondent has contradicted itself and a jurisdictional error has occurred”.  The submission was that the IAA had, in its reasons, talked about why it is that Applicants, and persons in the position that the Applicants were in, may not trust persons in authority because of the prior experiences. And yet the IAA went on to reject that such could be a reason why the Applicant did not disclose all of the matters that they ended up disclosing later on. 

19. The IAA were very careful when going through what it was that the Applicant had said.  The IAA said at paragraph 41:

    I accept that the applicant did not have an executive summary of his claims ready for the arrival interview.  However, the claimed incidents occurred over a period of nine months until the applicants left Iran in May 2013, which would have been memorable at the time that the arrival interview took place about a month later in June 2013.  On the applicant’s evidence, he is from a well-educated family.  He had a successful career, having completed a Diploma of Electronic Science.  He worked as a computer technician for some 20 years in both private and public organisations.  He also stated his wife had a miscarriage due to the stress and anxiety stemming from their situation. 

    In these circumstances, I am not satisfied the applicant could not have even briefly referred to these past incidents just because he did not have an executive summary of his claims ready.  In addition, according to the applicant, he decided not to disclose his claims and past incidents because he did not trust anyone.  This further supports that the omission was not because he did not have a summary of his claims or for any of the reasons relating to the duration of the arrival interview.  

20. The IAA went on to go through exactly what it was that was said during the arrival interview and how the interviewer had done everything in their power to have the Applicant trust them, including these words:

    This interview is your opportunity to provide any reasons why you should not be removed from Australia.  If you do not answer questions, a decision may be made on the basis of the information we have.  You are expected to give true and correct answers to the questions I ask.  You should understand that if the information you give in any future interview is different from what you tell me now, this could raise doubts about the reliability of what you have said.  The department is careful to protect the privacy of all information given by you during this interview.  This information will not be made available to authorities in the country of your habitual residence.

21. The Applicant and his wife both confirmed that they understood what was said and that they understood the interpreter and then went on to talk about the incidents, or some incidents, that they had with the Basij and with authorities. But such disclosure was nowhere near as bountiful as what came afterwards. 

22. In my view, there was no contradiction in what the IAA has done.  There was a further aspect of this ground in that it was claimed that the IAA had contradicted itself by the findings that it made at paragraph 97 where the IAA said:

    I accept the applicant had a physical altercation with the Basij during this 2013 incident when he tried to protect his daughter, who would have been 13 years old at the time and they left the office after they stopped fighting.

23. And then in paragraph 99:

    There is no credible evidence before me to indicate the applicants were of interest to the Basij or anyone following this incident and that, in my view, the Basij would have been able to locate, harm or arrest the applicants who claimed to be at the applicant’s mother’s place in Tehran following this incident if they were of interest to the authorities.

24. Again, I can find no contradiction in that finding at all, and that is hardly surprising, given that the Applicants were able to apply and receive passports and leave Iran legally in May 2013.  Therefore, I do not find that there is any merit in ground 1. 

25. Ground 2 is “the second respondent has not asked the correct question in relation to the physical altercation that the first applicant had with the Basij in 2013 when he tried to protect his daughter”.  This ground was expanded upon by Counsel for the Applicant, who spoke of the Basij’s role as a civilian paramilitary organisation akin to the Hitler Youth, the Gestapo, and, at my suggestion, the Stalinist forces that were in operation during the Soviet Union’s purge. 

26. Whilst that may be a correct and apt analogy to describe the Basij, the Applicant says that the IAA should have been asking “why was it that the Basij were having the altercation with the Applicant?”.  It seems to me that the Tribunal did ask itself that question and came to the conclusion that the altercation occurred because the Applicant was playing music and they saw what the daughter was looking at on the computer.  This meant that there was an altercation and then the altercation finished, and that was the end of it. 

27. The Applicant submits that the correct question or the correct answer, more particularly, should have been that the Basij were after the Applicant because he had this imputed political opinion and this is why they hounded him and, as it were, forced him to leave the country; and that that is why he cannot come back. 

28. Whilst this may be the answer the Applicant desires to have been given, it was not the answer that the IAA came to when assessing the evidence.  This ground, really, is nothing more than a merits review and so, as such, it has no merit to it. 

29. The third ground is this: “the second respondent, by finding that the Basij did not pursue the applicants after the altercation, has made a decision that is so illogical and irrational that no other decision maker would have made it”.  The IAA in making its decision has simply looked at what the facts are.  It has come to the conclusion that after the altercation finished, in the workplace, the Basij simply left. 

30. This is consistent with what the Applicant told the authorities at the initial interview in June 2018 after he had arrived in Australia.  The Applicant later went on to add a second aspect to this tale.  It was that the altercation was somewhat more serious and that the Applicant and the daughter were able to escape from the Basij and the Basij were able to follow them home. 

31. The tale continued that once they were at the house, they wanted to escape with the wife and the son but found that the Basij had followed them and were at the front of the residence. So they skipped through a number of neighbouring houses, over roofs, etcetera, almost in a Von Trapp type escape from these authorities. They then made good their flight from the Basij. 

32. The IAA found that the second aspect to this incident did not actually occur as, if it had occurred, it would have been one of the first things that the Applicant told straightaway to the Australian authorities.  It is also inconsistent with them being able to get their passports and leave legally in May of 2013.  The submission was made that the Basij, being the barbaric group that they are, would not have simply allowed the Applicant and the daughter to have escaped; that the Basij necessarily would have followed the Applicant. 

33. This, again, is supposition on the part of the Applicant.  Far from leading to only one conclusion that the Basij must have followed them, and followed them because of the imputed political opinion, one wonders how it is that, if the Basij were so hell-bent on their capture, the Applicant escaped in the first place. One wonders why it was that the Basij did not try to kill them during this first encounter at the workplace and, more importantly, how it was that the Applicant was actually able to leave Iran. 

34. The conclusion reached by the IAA was clearly open.  Therefore there is no jurisdictional error revealed by that ground of the application. 

35. The further submissions were made that the IAA had continually asked itself the wrong questions.  The fact is that, in paragraph 82, the IAA came up with a number of answers.  It is very difficult to see how those answers could have been arrived at if the right questions were not asked.

36. Counsel for the Applicant was not able to enlighten me as to how such answers were arrived at if the wrong questions were asked.  It really meant that the Applicant’s submission was not so much that the wrong questions had been asked but that he simply did not like the answers to which the IAA arrived.

37. That does not amount to a jurisdictional error.  That is simply an impermissible merits review. 

38. Having looked at this matter thoroughly I cannot find that there is any jurisdictional error. 

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  16 March 2018