BIK17 v Minister for Immigration

[2018] FCCA 2713

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIK17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2713

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether the Authority erred by misunderstanding its task on review – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.473CA of pt.7AA

Cases cited:

MZZJO v Minister for Immigration & Border Protection (2014) 239 FCR 436

Applicant: BIK17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 947 of 2017

Judgment of: Judge Smith

Hearing date: 7 August 2018

Date of Last Submission: 7 August 2018

Delivered at: Sydney

Delivered on: 7 August 2018

REPRESENTATION

Counsel for the Applicant: Mr O Jones

Solicitors for the Applicant: Stamford Law Firm

Counsel for the First Respondent: Mr J Kay Hoyle

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The applicant has leave to file an amended application in the form of the document filed on 5 July 2018.

2. The amended application be filed within 7 days.

3. The application be dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $4,826.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 947 of 2017

BIK17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of the Immigration Assessment Authority made on 21 February 2017.  The Authority affirmed the decision of a delegate of the Minister to refuse to grant the applicant a temporary protection visa on 9 November 2016.

2. By his amended application, the applicant raises one ground in the review, namely that “the Authority made a jurisdictional error by misunderstanding its task on review as it relied upon a failure to mention details at the entry interview of the Applicant”.  The scope of that ground makes it unnecessary to give an extensive summary of the background leading to the Authority’s decision and for that reason, I will deal with that relatively briefly.

3. The applicant arrived in Australia by boat as an unauthorised maritime arrival.  He either arrived on 1 March 2013 or on 14 March 2013.  The evidence does not allow me to make a firm finding about that but it does not really matter.  The applicant is a citizen of Iraq and, as will become clear, he ultimately made an application for a protection visa.  First, however, on 17 March 2013, which was a short time after his arrival in Australia, he engaged in what I will refer to as an arrival interview in respect of which he, amongst other things, gave a reason for which he had left Iraq.  He said (without alteration):

   First thing I came for my health also alot of discrimination between Sunnis Shia.  No electricity, no services water.

4. Subsequently, on 31 March 2013, he took part in what I will call an entry interview with an officer of the Department of Immigration.  In that interview the applicant gave further details about his reasons for leaving Iraq, which included that he feared harm at the hands of the Mahdi Army.

5. On 31 March 2016, the applicant lodged an application for a protection visa.  The delay in doing so is explicable by the fact that, without the exercise of the Minister’s non-compellable power, the applicant was prevented from lodging such an application.  In his protection visa application, the applicant made a number of claims which are summarised at [8] and [9] of the first respondent’s submissions, which I set out:

   8.The first applicant relevantly claimed to fear harm from the Mahdi Army, a Shi’a militia group, as well as from Islamic State and the general security situation in Iraq. As part of those claims, the applicant suggested that he was targeted by the Mahdi Army because he was Sunni (although he did not practice his religion) and because he was perceived as wealthy (by reason of being the owner of a mechanical repair business until he left Iraq).

   9.The applicant’s claims focused on incidents in 2012 and 2013 when members of the Madhi Army came to the applicant’s shop demanding money and subsequently shot the applicant’s brother in the leg and came looking for the applicant at his home (and assaulted two of his sisters at the same time) (at [10] of the Decision).

   (References omitted)

6. The applicant attended an interview with a delegate of the Minister on 21 September 2016 which is referred to as the TPV[1] interview.  Subsequent to the hearing, agents acting for the applicant wrote to the delegate for the Minister by letter dated 4 October 2016, responding to a number of concerns raised during the interview, including the failure by the applicant at the arrival interview to mention his claim to have been persecuted and his fear of future persecution by the Mahdi Army.

   [1] Temporary Protection Visa.

7. On 9 November 2016, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and, given the particular circumstances of the applicant’s arrival and other matters, the matter was referred to the Immigration Assessment Authority for review under s.473CA of pt.7AA of the Migration Act 1958 (Cth).

8. The Authority made its decision on 21 February 2017 to affirm the decision of the delegate.  A brief summary of the Authority’s findings is set out at the respondent’s submissions at [12] which I adopt for the purposes of this judgment:

   In general terms, the IAA relevantly found as follows:

   a.Based on aspects of the applicant’s evidence given at the TPV interview and the arrival interview, including that he had employed one or two people and that his brother was not always paid, it found that the applicant would not be perceived as wealthy (at [15]-[17] of the Decision);

   b.It accepted that the applicant had worked on vehicles owned by employees of a foreign-owned company. However, based principally on country information related to risks of people working directly for or with the international community including US forces, it did not accept that the applicant was at risk from the Madhi Army (at [18]-[20] of the Decision);

   c.It did not accept that the applicant was visited by armed members of the Madhi Army or that his workshop and home were damaged and his brother shot. It did not accept that the applicant was of particular adverse interest to the Madhi Army. It did not accept these matters for a number of reasons, including failing to mention the Madhi Army at the arrival interview and the inconsistencies in the applicant’s evidence at the TPV interview concerning the events of 25 January 2013 (at [21]-[44] of the Decision);

   d.It considered a range of country information about Shi’a militias (including the Madhi Army) in the Basra region and their impact on the Sunni population. It concluded it was possible that someone of the Sunni faith who did not practice his faith and was a small business owner would be harmed on the basis of his faith but that chance was less than a real chance of persecution (at [47]-[57] of the Decision);

   e.It was not satisfied that there was a real chance, based on country information, that the applicant would be harmed by armed Sunni groups, including on the basis that he was a small business owner or that he was perceived as someone of no faith (at [58]-[63] of the Decision);

   f.It accepted that the applicant may experience some discriminatory treatment in Basra but did not accept that such treatment amounted to serious harm (at [64]-[74] of the Decision);

   g.Based on country information, and evidence given by the applicant in his TPV interview, it was not satisfied that there was a real risk that the applicant would suffer significant harm for the purposes of complementary protection pursuant to s.36(2)(aa) of the Act (at [81]-[91] of the Decision).

   I will return to part of the Authority’s reasons in further detail later in these reasons.

9. The ground in the amended application relies upon a number of statements by the Full Court in the decision of MZZJO v Minister for Immigration & Border Protection (2014) 239 FCR 436. There, the Full Court said at [56] and [57]:

   [56]On the latter issue, some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.

   [57]Had the Tribunal relied only on a failure to mention details at the entry interview, we may have been inclined to see this as involving a misunderstanding of its task on review. However, the Tribunal relied on inconsistencies arising from information presented by the appellant after the entry interview as well, including inconsistencies between the delegate interview and what he said to the Tribunal, and the somewhat inexplicable reluctance of the appellant to have his childhood friend, who arrived on the same boat, give evidence to corroborate aspects of his account. We consider its approach was open to it as a merits decision-maker, and the Federal Circuit Court was correct to so find.

10. Ultimately, the applicant did not submit that this Court was bound by those statements, accepting that the statements had been made tentatively and that the error averted to in those statements did not arise on the facts of the case before the Court.  However, the applicant invited me to apply the principle which was referred to, somewhat obliquely, in [56] and [57].

11. Essentially, the applicant’s argument came down to these two propositions: first, in order to properly fulfil its obligation to review the delegate’s decision, the Authority must intellectually engage with the question of whether an admission made at an arrival interview ought to be forgiven in the circumstances of that arrival interview (“forgiven” in the sense that it is not to be taken as an indication of lack of credibility).  Secondly, the Authority ought to consider whether the matters raised at the arrival interview should be construed so as to cover later claims that were made later in the process of an application for a protection visa.  He argued, in other words, that what was said at the arrival interview by an applicant in response to questions put to him or her ought to receive a beneficial construction.

12. It is relevant to first consider the circumstances in which the interview was given in light of the concerns raised at [56] of the Full Court’s decision in MZZJO. I accept the applicant’s submission that what is said at [56] is not meant to be some prescriptive statement of the circumstances in which error will be found, but rather that it is indicative of matters that might arise, and that the Court ought to consider each of the circumstances as they appear on the evidence.

13. Circumstances here include that the applicant had arrived in Australia by boat, having spent 30 hours travelling.  It is not clear, on the evidence, whether the boat was cramped or that there was any other difficulty that was faced by the applicant that might have affected his ability to give evidence at the arrival interview.  I accept the submission that it is likely that the arrival interview was the first time in which the applicant had fully come face to face with the bureaucracy in Australia and that, also, the likelihood is that the majority of the interview was concerned with matters other than claims for protection.

14. Nevertheless, it is important in my view that the issue of the omission at the entry interview was raised with the applicant at the TPV interview by the delegate and was responded to with the benefit of legal advice, or at least advice of the migration agents. It is notable that in the agent’s response to those concerns, the matters referred to by the Full Court at [56] are not mentioned.  Rather, a number of matters were raised including the fact that the interview was brief and that the applicant had intended to refer to the Mahdi Army in his reference to the discrimination between Shias and Sunnis.

15. It is unnecessary, on the facts of this case, to examine or to resolve any of the issues of principle that are raised in [56] and [57] of MZZJO and in the submissions of the applicant, and those of the first respondent in reply.  That is because, even accepting the questions of principle set out in [56] and [57], in my view, the Authority showed that it did properly engage in the process of review having regard to the circumstances in evidence before it surrounding the answers given by the applicant at the arrival interview.  That is particularly apparent from [22] to [29] of the Authority’s decision, which I set out below:

    22.In terms of inconsistency, there is a significant variation in the applicant’s evidence relating to these events as provided in the arrival interview conducted on 17 March 2013 and his subsequent evidence. When asked why he left Iraq in the arrival interview the applicant mentioned three matters: his health, discrimination ‘between Sunnis and Shia’, and access to electricity, water and other services. The applicant did not mention the shooting of his brother, the assault of his sisters or that he was afraid the Mahdi Army would kill him.

    23.The delegate put her concerns regarding this inconsistency to the applicant in the TPV interview. The applicant indicated that in the limited time available to him in the arrival interview, he did not feel he could adequately explain his claims. He therefore referred only to discrimination. He suggested that the reference to his health in the record of the arrival interview might reflect a misinterpretation by the interpreter. He explained that the Arabic word for ‘health’ is also used as part of a salutation and this may have confused the interpreter. I do not find this suggestion plausible, particularly as the applicant referred to his health problems at two other points during the arrival interview, suggesting his health was a matter of concern to him.

    24.The applicant’s representative for the purposes of his TPV application addressed these inconsistencies further in a submission to the delegate following the TPV interview. The applicant’s representative suggested that the limited time afforded to the applicant during the arrival interview in which he could express his reasons for leaving Iraq provided an adequate explanation for the applicant’s omission of any reference to his claimed persecution by the Mahdi Army. The representative suggested that the applicant characterised his claims as discrimination because of the direction that he was to explain his case briefly.

    25.While I agree that there is limited time available in arrival interviews for applicants to explain the events leading to their departure from their home country, it is not apparent why this time constraint would have prevented the applicant from mentioning his fears for his life, the shooting of his brother, the assault of his sisters, or the Mahdi Army, but did not prevent the applicant from referring to his health (referred to as the ‘first thing I came for’), and the lack of electricity, water and other services. I do not accept that the applicant’s reference to ‘discrimination between Sunnis and Shia’ was intended to summarise the applicant’s claims relating to the Mahdi Army.

    26.The applicant’s representative further submitted that the applicant’s behaviour in omitting any reference to the harm caused by and feared from the Mahdi Army was consistent with his experience of significant trauma. The representative referred to UNHCR guidance suggesting that people who fear harm from authorities in their own countries may feel apprehensive when dealing with authorities, and may be afraid to speak freely and give a full and accurate account of their case in interviews with authorities of other countries. While I accept this is true, the applicant claims to fear the Mahdi Army, a Shia militia group, and has not claimed to fear harm from the Iraqi authorities. I do not accept that any such fear led to a fear of Australian authorities that prevented the applicant from accurately summarising his reasons for leaving Iraq in the arrival interview.

    27.I accept that traumatic experiences may affect an applicant’s recollection of events and that some events may be difficult to discuss. I have considered whether the sensitive nature of the claimed assault of the applicant’s sisters and the traumatic nature of the claimed events of 25 January 2013 may have caused the applicant to avoid referring to these events in the arrival interview. I do not consider that the sensitive nature of the claimed assaults of his sisters, or the traumatic nature of these and other claimed events, provides an adequate explanation for the omission of any reference to the claimed assaults of his sisters, the claimed shooting of his brother, or his claimed fear of the Mahdi Army.

    28.I recognise that arrival interviews are not intended to explore an applicant’s claims for protection and that the applicant had limited time within which to summarise his reasons for leaving Iraq. Nevertheless, I consider it implausible that the applicant would choose to say that he left Iraq because of concerns related to his health, discrimination and access to basic services in Iraq if in fact he left Iraq because he was afraid that the Mahdi Army would kill him and because his brother was shot and his sisters assaulted by the Mahdi Army as claimed. I note that when asked if there any other issues the applicant wished to discuss at the end of his arrival interview of 17 March 2013, the applicant indicated there were not and said he wanted to live a happy and good life, and to find a wife.

    29.The applicant’s representative argued that the inconsistency in the applicant’s evidence discussed was not sufficiently serious to bring into question the full body of evidence supporting the applicant’s claims, or his credibility as a whole. However, I agree with the delegate that this inconsistency cannot be regarded as insignificant given that it relates to the central claims made by the applicant regarding the Mahdi Army. I have nevertheless considered other aspects of the applicant’s evidence relating to the Mahdi Army.

    (Without alteration)

16. The first thing to note is that, overall in those paragraphs, the omission of any mention by the applicant at the arrival interview of the Mahdi Army was not the only reason which the Authority gave for finding credit issues with the applicant.  There were a number of other inconsistencies relied upon and, as revealed later in the Authority’s reasons, there were other aspects of the applicant’s own evidence, as well as country information that led to its ultimate decision.

1. The second matter is that the Authority was not incautious to adopt the wording of MZZJO in relying upon the omission at the arrival interview. It recognised, at [25] for example, that there was limited time available in the arrival interview. The Authority noted that traumatic experiences may affect the applicant’s recollection of events, that an arrival interview was not intended to explore the applicant’s claims for protection and reiterated that there was limited time available within which to summarise the applicant’s reasons for leaving Iraq: [27], [28]. This was not a matter, in other words, where the Authority made a false comparison between what was said at the arrival interview, and what might have been said when the applicant was given a greater opportunity with the advantage of legal or specialised migration advice, to develop and explain his claims.

2. Thirdly, and related to the second point, the Authority dealt with each of the explanations given by the applicant’s agents in response to the concern raised by the delegate.  In doing so, it showed that it was not only sensitive to the nature of the arrival interview in general, but also that it was properly reviewing the decision of the delegate by having regard to all of the material that was before him or her, which included all of the submissions made on behalf of the applicant.

3. That point cannot be underestimated as the focus of the Full Court in MZZJO at [56] and [57] was upon the proper fulfilment and understanding of the task of reviewing the delegate’s decision, even though in that case the context was different (it being under pt.7 rather than pt.7AA of the Act).

4. Further, it is clear that the Authority did engage intellectually with the question whether the omission at the arrival interview ought to be forgiven in all of the circumstances.  That is clear not only from the entirety of the passage [22] to [29] of the Authority’s reasons, but in particular, at [28], where it states expressly that it recognised the limitations of the entry interview, but nevertheless came to a view that it was implausible that the applicant would say that he chose to leave Iraq for one thing when, in fact, he left Iraq because he was afraid the Mahdi Army was going to kill him, as later claimed. 

5. That intellectual engagement was highlighted in the last sentence of [28], where the Authority noted that at the end of the interview the applicant was asked whether he wished to discuss anything further and he said that there was not and that he just “wanted to live a happy and good life, and to find a wife”.

6. In respect of the argument that it is incumbent upon the Authority in the circumstances of the case to consider whether the matters raised at the interview should be construed as covering a later claim, and to give a beneficial construction, I find that the Authority did, in fact, do that leaving to one side just what beneficial construction means.  At [25] the Authority stated that it had considered that very submission but noted that it did not accept that the reference to “discrimination between Sunnis and Shia’ was intended to summarise the applicant’s claims relating to the Mahdi Army”.  It would take an extremely broad approach to a claim about discrimination to find that it included the elements of the claim which later arose at the entry interview and then before the delegate of the TPV interview.

7. In my view, although it is not necessary to come to a determined view about this, it is not as a question of a priori obligation necessary for the Authority to give a so-called beneficial construction to any claim made.  What the Authority did here, was to take into account the circumstances in which statements were and were not made, to compare them with claims that were later made and to having considered the difference between both, as well as the circumstances in which the later claims were admitted, come to a view that it did not accept that it was intended at the earlier interview to refer to the later claim.  It cannot be questioned that it was open, in the sense of being legally available to the Authority, having considered those matters and having turned its mind to the issues raised by the applicant in support of his contentions, to conclude that the earlier failure by the applicant to raise a significant claim was partly, at least, sufficient to undermine the applicant’s credibility.

8. For all of those reasons, I consider that the Authority did not fall into any jurisdictional error when it took into account, to some extent, the applicant’s omission to raise a claim concerning the Mahdi Army at the arrival interview that took place on 17 March 2013. 

Conclusion

1. That being the subject of the only ground of review in the application, I am not satisfied there is any jurisdictional error affecting the Authority’s decision and the application must be dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       12 October 2018