Biq18 v Minister for Immigration, Citizenship and Multicultural Affairs

Case [2022] FedCFamC2G 607

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BIQ18 v Minister For Immigration, Citizenship And Multicultural Affairs [2022] FedCFamC2G 607

File number: MLG 742 of 2018
Judgment of: JUDGE RILEY
Date of judgment: 3 August 2022
Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal overlooked important evidence – whether the Tribunal failed to consider the case as put.
Legislation:

Migration Act 1958 s.65.

Cases cited:

AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83; (2018) 361 ALR 227; [2018] FCAFC 133

MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154; (2015) 328 ALR 433; (2015) 67 AAR 159; [2015] FCAFC 133

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; (2003) 75 ALD 630; [2003] FCAFC 184

Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 17.

Division: Division 2 General Federal Law
Number of paragraphs: 60
Date of hearing: 21 July 2022
Place: Melbourne
Counsel for the Applicant: Angel Aleksov
Solicitor for the Applicant: Carina Ford Lawyers
Counsel for the First Respondent: Kylie McInnes
Counsel for the Second Respondent: No appearance
Solicitor for the Respondents: Clayton Utz

ORDERS

MLG 742 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

BIQ18
Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:

JUDGE RILEY

DATE OF ORDER:

3 AUGUST 2022

THE COURT ORDERS THAT:

1.The title of the proceeding be amended so that the name of the first respondent is “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.The application filed on 23 March 2018 and amended on 27 June 2022 be dismissed.

3.The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,853.

Note: The form of the order is subject to the entry in the court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE RILEY:

INTRODUCTION

  1. This is an application for review of a decision made by the Refugee Review Tribunal, which is now the Administrative Appeals Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection (class XA) visa under s.65 of the Migration Act 1958.

  2. The application was filed more than four years out of time. The court granted an extension of time on 21 July 2022 for reasons given on that day.

    MATERIAL RELIED UPON

  3. At the hearing before this court, the applicant relied upon:

    (a)his amended application filed on 27 June 2022;

    (b)his amended written submissions filed…

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Biq18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 607
Case
[2022] FedCFamC2G 607
Decision Date

CaseChat Overview and Summary

In Biq18 v Minister for Immigration, Citizenship and Multicultural Affairs, the Federal Circuit and Family Court was tasked with reviewing a decision made by the Tribunal, which had declined to grant a visa application by the applicant, Biq18, who sought protection on the grounds of alleged past persecution and a fear of future persecution in Iran. The central issues before the court involved assessing the credibility of the applicant's claims and determining whether the Tribunal's findings were legally sound.

The applicant argued that the Tribunal erred in its assessment of his credibility and in dismissing his claims of past persecution and fear of future persecution. The court examined whether the Tribunal appropriately considered the applicant's evidence and whether it was reasonable for the Tribunal to doubt the credibility of the applicant's account. The court also assessed whether the Tribunal correctly interpreted the relevant laws and applied them to the facts of the case.

The court concluded that the Tribunal's decision was based on a reasonable assessment of the applicant's credibility and the evidence presented. The court found that the Tribunal was justified in questioning the consistency and reliability of the applicant's testimony, particularly concerning the alleged incident with [Mr X]. The court highlighted that the Tribunal's concerns about the applicant's credibility were supported by specific inconsistencies in his statements and the manner in which he presented his evidence. Additionally, the court agreed with the Tribunal's conclusion that the applicant's claims of past persecution and fear of future persecution were not substantiated by the evidence.

Ultimately, the court upheld the Tribunal's decision, finding no merit in the applicant's grounds of review. The Federal Circuit and Family Court affirmed the Tribunal's determination that the applicant's claims did not meet the threshold for granting a protection visa. The decision to refuse the visa application was therefore upheld.

Orders

Orders of the court

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Background

Background to the litigation

At the hearing before this court, the Minister relied upon:(a)his response filed on 19 April 2018; and(b)his written submissions filed on 11 July 2022.BACKGROUND At paragraph 19 of his written submissions opposing the extension of time application, the Minister summarised the applicant’s claims as follows: •He was born and raised in [a particular city in Iran] and is an Arab and belongs to [a particular tribe] and is a Shia Muslim.•In 2007 he was detained, beaten and verbally abused by police for having a bottle of whisky in his possession and for being Arab. He was charged and jailed for 7 days and fined.•In early 2010 he took up a cooking job at the Islamic school [in his city] and was not treated well by the director or overseer of the school, [Mr X], who is the son of the Friday prayer leader in [his city], [Mr Y].•In mid 2011 the applicant’s pay was docked for some oil that went missing from the school kitchen as he was responsible for keeping track of the stock in the kitchen. The applicant pleaded with his superiors that he had no knowledge of the missing oil.•In late February 2012 [Mr X] and some of his men walked into the school kitchen with a list and began taking items from the shelf. The applicant challenged [Mr X] and his men as they did not have written permission from the applicant’s immediate supervisor to take the items and as a result the cost of the items would be docked from the applicant’s pay.•An altercation ensued between him and [Mr X] resulting in [Mr X] falling on the slippery floor onto his hip and yelling out in pain and the applicant fled to a nearby village and stayed with a friend.•While at his friend’s he was informed by his brother that [Mr X] had come to his house on two occasions and were looking for him and verbally insulted his family and pushed his mother which led to her hospitalisation for a heart condition.•He left Iran on 3 March 2012 and fears that he would be persecuted by [Mr X] and/or the Iranian authorities if returned.•[Mr X] is a property owner and powerful in [the applicant’s city] and the applicant is an Arab.THE TRIBUNAL’S REASONS FOR DECISION The Tribunal’s reasons for decision are in an unusual form. The reasons consist of 20 paragraphs, and have two attachments. Attachment 1 sets out the relevant law. Attachment 2 sets out the applicant’s evidence and claims. Much of attachment 2 is in the form of direct quotations from the relevant documents. In his written submissions opposing the extension of time application, Minister summarised the Tribunal’s reasons for decision as follows:20. The Tribunal set out the applicant’s evidence and claims as set out in his original visa application, the applicant’s submissions dated 26 April 2013, during the Tribunal hearing, the applicant’s post-hearing submissions dated 7 June 2013, and the statutory declaration of the interpreter: CB 266 [4]-[5] and CB 273-285 Attachment 2.21.Like the delegate, the Tribunal found the applicant’s account of the alleged incident with [Mr X] to be unconvincing and had concerns about the applicant’s credibility: CB 266 [6].(a) The Tribunal considered the applicant’s evidence that the biodata interview contained a mistranslation and that in respect to the question ‘why are you seeking Australia’s protection?’, rather than answering ‘I want to live comfortably here. I want to have some peace’, that correct translation was ‘I want to live. I want to have peace.’ Regardless of whether there was a translation error, the Tribunal had difficulty accepting that someone who feared being imprisoned and killed by Iranian authorities would answer the question ‘in such a glib way’. The Tribunal considered the applicant’s submission that it was a reasonable summary of his situation; however, the Tribunal remained unconvinced by this submission given the applicant’s subsequent claims: CB 266 [7].(b)The Tribunal noted that the written record of the entry interview recorded that the applicant stated that [Mr X] and three other men (escorts) came to the kitchen and wanted to take cooking oil and other kitchen supplies and, when the applicant refused to let them, they pushed him around and started kicking and hitting him. [Mr X] then picked up a kitchen object and hit the applicant on the wrist. The applicant defended himself and pushed [Mr X]. The Tribunal found this account not to be consistent with the applicant’s description of the incident provided at hearing. The inconsistency was whether the bodyguard hit him or whether he just thought that he was going to be attacked by the bodyguard: CB 266-267 [8].(c)The Tribunal also found that there was inconsistency in the applicant’s evidence about how many escorts there were. The Tribunal noted the statutory declaration of [Ms Z] (a migration agent from the same firm as the applicant’s adviser who is NAATI 2 accredited in the Persian language), which gave a cursory translation of the entry interview. The statutory declaration said that the recording was extremely poor and it was unclear whether the speaker said ‘3 others’ or ‘3 of them’. The Tribunal had difficulty relying on the cursory translation given its brevity and format. The Tribunal was not prepared to conclude that the applicant did not say that [Mr X] was accompanied by three people because the recording was unclear and [Ms Z] did not know what the applicant said. For that reason, the Tribunal preferred the written record of interview: CB 267 [9].(d)The Tribunal observed that the manner in which the applicant gave evidence led the Tribunal to form the impression that the applicant was not recalling an event which had in fact occurred but was making up evidence as he went along: CB 267 [10].(e)The Tribunal had difficulty understanding why the applicant would confront his manager’s manager (who could presumably sack him) about stealing goods. The Tribunal was also unconvinced that the claimed manner of escape was possible: CB 267 [10].22.Given these matters going to credibility, the Tribunal was not satisfied that the claimed incident with [Mr X] occurred: CB 268 [11].23.The Tribunal was not satisfied that the applicant would be imputed to have an anti-Iranian political opinion or that he was at risk of being persecuted simply because of his ethnicity: CB 268 [12].24.The Tribunal considered the applicant’s claims that he had been arrested for drinking alcohol. The Tribunal found that the restrictions on consuming alcohol were laws of general application, that the applicant had been arrested quite some time ago and did not accept that anything adverse subsequently happened to the applicant. The Tribunal was not satisfied that there was a real chance that the applicant would be harmed in Iran in the reasonably foreseeable future because of that event: CB 268 [13].25.Based on country information, the Tribunal did not accept that there was a real chance that the applicant would face serious harm as a returned asylum seeker or would be imputed with the political or anti-regime opinions having sought asylum: CB 268 [14].26.The Tribunal did not accept that the applicant’s claim that people ‘look down on Arabs’ would constitute harm serious enough to amount to persecution: CB 269 [15].27.The Tribunal considered the applicant’s claims individually and cumulatively and found that it was not satisfied that the applicant was owed protection: CB 269 [16]-[17].28.For the same reasons, the Tribunal did not accept that there are substantial grounds for believing that as a necessary or foreseeable consequence of the applicant being removed from Australia there is a real risk that he would suffer significant harm: CB 269 [18].29.The Tribunal affirmed the delegate’s decision to not grant the visa: CB 270 [20].GROUND 1

Evidence

Evidence Before The Court

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Decision

Reasons for decision

At paragraph 19 of his written submissions opposing the extension of time application, the Minister summarised the applicant’s claims as follows: •He was born and raised in [a particular city in Iran] and is an Arab and belongs to [a particular tribe] and is a Shia Muslim.•In 2007 he was detained, beaten and verbally abused by police for having a bottle of whisky in his possession and for being Arab. He was charged and jailed for 7 days and fined.•In early 2010 he took up a cooking job at the Islamic school [in his city] and was not treated well by the director or overseer of the school, [Mr X], who is the son of the Friday prayer leader in [his city], [Mr Y].•In mid 2011 the applicant’s pay was docked for some oil that went missing from the school kitchen as he was responsible for keeping track of the stock in the kitchen. The applicant pleaded with his superiors that he had no knowledge of the missing oil.•In late February 2012 [Mr X] and some of his men walked into the school kitchen with a list and began taking items from the shelf. The applicant challenged [Mr X] and his men as they did not have written permission from the applicant’s immediate supervisor to take the items and as a result the cost of the items would be docked from the applicant’s pay.•An altercation ensued between him and [Mr X] resulting in [Mr X] falling on the slippery floor onto his hip and yelling out in pain and the applicant fled to a nearby village and stayed with a friend.•While at his friend’s he was informed by his brother that [Mr X] had come to his house on two occasions and were looking for him and verbally insulted his family and pushed his mother which led to her hospitalisation for a heart condition.•He left Iran on 3 March 2012 and fears that he would be persecuted by [Mr X] and/or the Iranian authorities if returned.•[Mr X] is a property owner and powerful in [the applicant’s city] and the applicant is an Arab.THE TRIBUNAL’S REASONS FOR DECISION The Tribunal’s reasons for decision are in an unusual form. The reasons consist of 20 paragraphs, and have two attachments. Attachment 1 sets out the relevant law. Attachment 2 sets out the applicant’s evidence and claims. Much of attachment 2 is in the form of direct quotations from the relevant documents. In his written submissions opposing the extension of time application, Minister summarised the Tribunal’s reasons for decision as follows:20. The Tribunal set out the applicant’s evidence and claims as set out in his original visa application, the applicant’s submissions dated 26 April 2013, during the Tribunal hearing, the applicant’s post-hearing submissions dated 7 June 2013, and the statutory declaration of the interpreter: CB 266 [4]-[5] and CB 273-285 Attachment 2.21.Like the delegate, the Tribunal found the applicant’s account of the alleged incident with [Mr X] to be unconvincing and had concerns about the applicant’s credibility: CB 266 [6].(a) The Tribunal considered the applicant’s evidence that the biodata interview contained a mistranslation and that in respect to the question ‘why are you seeking Australia’s protection?’, rather than answering ‘I want to live comfortably here. I want to have some peace’, that correct translation was ‘I want to live. I want to have peace.’ Regardless of whether there was a translation error, the Tribunal had difficulty accepting that someone who feared being imprisoned and killed by Iranian authorities would answer the question ‘in such a glib way’. The Tribunal considered the applicant’s submission that it was a reasonable summary of his situation; however, the Tribunal remained unconvinced by this submission given the applicant’s subsequent claims: CB 266 [7].(b)The Tribunal noted that the written record of the entry interview recorded that the applicant stated that [Mr X] and three other men (escorts) came to the kitchen and wanted to take cooking oil and other kitchen supplies and, when the applicant refused to let them, they pushed him around and started kicking and hitting him. [Mr X] then picked up a kitchen object and hit the applicant on the wrist. The applicant defended himself and pushed [Mr X]. The Tribunal found this account not to be consistent with the applicant’s description of the incident provided at hearing. The inconsistency was whether the bodyguard hit him or whether he just thought that he was going to be attacked by the bodyguard: CB 266-267 [8].(c)The Tribunal also found that there was inconsistency in the applicant’s evidence about how many escorts there were. The Tribunal noted the statutory declaration of [Ms Z] (a migration agent from the same firm as the applicant’s adviser who is NAATI 2 accredited in the Persian language), which gave a cursory translation of the entry interview. The statutory declaration said that the recording was extremely poor and it was unclear whether the speaker said ‘3 others’ or ‘3 of them’. The Tribunal had difficulty relying on the cursory translation given its brevity and format. The Tribunal was not prepared to conclude that the applicant did not say that [Mr X] was accompanied by three people because the recording was unclear and [Ms Z] did not know what the applicant said. For that reason, the Tribunal preferred the written record of interview: CB 267 [9].(d)The Tribunal observed that the manner in which the applicant gave evidence led the Tribunal to form the impression that the applicant was not recalling an event which had in fact occurred but was making up evidence as he went along: CB 267 [10].(e)The Tribunal had difficulty understanding why the applicant would confront his manager’s manager (who could presumably sack him) about stealing goods. The Tribunal was also unconvinced that the claimed manner of escape was possible: CB 267 [10].22.Given these matters going to credibility, the Tribunal was not satisfied that the claimed incident with [Mr X] occurred: CB 268 [11].23.The Tribunal was not satisfied that the applicant would be imputed to have an anti-Iranian political opinion or that he was at risk of being persecuted simply because of his ethnicity: CB 268 [12].24.The Tribunal considered the applicant’s claims that he had been arrested for drinking alcohol. The Tribunal found that the restrictions on consuming alcohol were laws of general application, that the applicant had been arrested quite some time ago and did not accept that anything adverse subsequently happened to the applicant. The Tribunal was not satisfied that there was a real chance that the applicant would be harmed in Iran in the reasonably foreseeable future because of that event: CB 268 [13].25.Based on country information, the Tribunal did not accept that there was a real chance that the applicant would face serious harm as a returned asylum seeker or would be imputed with the political or anti-regime opinions having sought asylum: CB 268 [14].26.The Tribunal did not accept that the applicant’s claim that people ‘look down on Arabs’ would constitute harm serious enough to amount to persecution: CB 269 [15].27.The Tribunal considered the applicant’s claims individually and cumulatively and found that it was not satisfied that the applicant was owed protection: CB 269 [16]-[17].28.For the same reasons, the Tribunal did not accept that there are substantial grounds for believing that as a necessary or foreseeable consequence of the applicant being removed from Australia there is a real risk that he would suffer significant harm: CB 269 [18].29.The Tribunal affirmed the delegate’s decision to not grant the visa: CB 270 [20].GROUND 1

Ratio Decidendi

Legal Principle Established

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