BKG15 v Minister for Immigration

[2015] FCCA 2890

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKG15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2890

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa –procedural fairness – whether the Tribunal put adverse findings of credit to the applicant – whether the Tribunal had regard to current country information – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.430, 476

Applicant: BKG15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1977 of 2015

Judgment of: Judge Street

Hearing date: 27 October 2015

Date of Last Submission: 27 October 2015

Delivered at: Sydney

Delivered on: 5 November 2015

REPRESENTATION

Solicitors for the Applicant: Mr S. Hodges
Stephen Hodges Solicitor

Counsel for the Respondents: Mr Kay-Hoyle

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6646. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1977 of 2015

BKG15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of Migration Act 1958 in respect of a decision of the Tribunal made on 25 June 2015 affirming the decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Iran and his claims were assessed as against that country.

3. The applicant is a single man in his early thirties from Ahwaz who claims to fear harm because he has a profile as an activist and dissenter after he argued with a member of the Basij and allegedly, the applicant said he did not believe in Islam and criticised the Supreme Leader and Imam Khomeini.  The delegate accepted the applicant did argue with a Basij and that his house was searched and a laptop containing political material was seized as a result, but found these matters were not sufficient to attract attention of the authorities if he returned.  The delegate found there was neither a real chance that the applicant would be seriously harmed nor a real risk that he would be significantly harmed if he returned to Iran, and that the applicant did not have a well-founded fear of persecution.

4. The grounds of the amended application are relevantly as follows:

   Ground 2

   The AAT committed a jurisdictional error because its credibility/factual findings generally in the decision depart from the Delegate's reasons without warning for the purposes of Section 425 of the Migration Act and contrary to the requirements described by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA63.

   PARTICULARS

   (i) The delegate's decision against which the applicant appealed accepted several of the facts alleged by the applicant that were rejected as illogical and implausible [see 3 of the AAT decision].

   (ii) During the hearing the AAT did not inform the applicant that the particular findings of the delegate were suspect to challenge;

   (iii) In part, the findings of the AA T were inconsistent with the findings of the Delegate, without the applicant and his representative being aware of the particular facts to be challenged.

   (iv) The findings on point were fundamental to the decision of the AAT;

   (v) The applicant did not have any or sufficient notice that the findings of the Delegate were to be departed from.

   Ground 4

   The decision of the AAT is affected by error because the AAT failed to give adequate reasons as required by section 430, Migration Act 1958 which provides as follows:

   Tribunal's decision and written statement

   Written statement o[decision

   (1) Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:

   (a) sets out the decision of the Tribunal on the review: and

   (b) sets out the reasons for the decision: and

   (c) sets out the findings on any material questions of fact,· and

   (d) refers to the evidence or any other material on which the findings of fact were based;· and

   (e) in the case o[a decision under paragraph 426A(1C)(b) or subsection 426A(1E)to confirm the dismissal of an application--indicates that under subsection 426A (1F). the decision under review is taken to be affirmed,· and

   (f) records the day and time the statement is made.

   PARTICULARS

   (a) The delegate referred to extensive Country Information concerning the Basij. This included:

   • There is reportedly a Basij presence in every city and town in Iran;

   • Arbitrary arrest and detention is legislated against but still commonly occurs;

   • Arbitrary arrest and detention is often carried out by the Basij;

   • Forced confessions have also been widely reported and are often used in court;

   • Often plain clothes officers arrived at homes or offices and conducted raids without warrants or other assurances or due process, confiscating private documents, passports, computers, electronic media, and other personal items and arresting individuals" [CB 103-104];

   • (From a 2012 source) arbitrary arrest and detention ......... are increasingly employed:' [CB104].

   (b) The findings of the AAT as described above under Ground 1 (iii)(g) were inconsistent with the available country information. Given the drastic departure from the Country cited by the delegate, the AAT was required by s 430 to give reasons for those findings, including reasons as to why the country information was not accepted.

5. Mr Hodges, the solicitor for the applicant, abandoned grounds 1 and ground 3.  The reference in ground 4 to ground 1(3)(g) is as follows:

   (g) The AA T placed undue weight [39-42] on the inability of the applicant to describe documents that "would normally" [39 for example] be given in relation to official actions. The reasoning involving the lack of documents is made without evidence of the processes in Iran. The assumptions are based on legal processes in Australia. In particular, the reasoning pays no regard, even in Iran, to the discrete operations of the state police and religious police (basij).

6. In relation to ground 2, the Court was taken to the finding of the delegate at CB106, as follows:

   I accept the applicant had an argument with a Basij officer in his shop and stated that he did not believe in Islam or the supreme leader. I also accept it is possible the Iranian authorities confiscated his laptop which contained some political caricatures and satirical material

7. Relevantly, the delegate continued:

   I consider that the argument he had with the Basij officer and the possibility the Basij found some politically satirical material on his laptop is not sufficient to attract the attention of the Iranian authorities if he were to return.

8. Reference was also made to the country information referred to by the delegate at CB103 under the heading “the Basij”:

   Country information indicates that the Basij is a widespread paramilitary group which is organised under and extremely loyal to the Islamic Revolutionary Guards Corps (IRGC).4 The Basij are used by the Islamic regime for intelligence gathering purposes and to implement security measures, there is reportedly a Basij presence in every city and town in Iran’s Country information also indicates that while arbitrary arrest and detention in Iran is legislated against it still commonly occurs and is often carried out by members of the Basij and that forced confessions have also been widely reported and are used as evidence in court.⁶  Specifically, the USSD Report 2011 states:

   "Although the constitution prohibits arbitrary arrest and detention, these practices continued during the year [2011]. Moreover, arbitrary arrest was a common practice and was used by authorities to spread fear and deter activities deemed against the regime. Often plainclothes officers arrived unannounced at homes or offices and conducted raids without warrants or other assurances of due process, confiscating private documents, passports, computers, electronic media, and other personal items and arresting individuals.  ⁷

   In addition, the Freedom House Report 'Freedom in the World 2012 - Iran stated the following:

   "arbitrary arrest and detention _ ... are increasingly employed, and family members of detainees are often not notified for days or weeks. Suspected dissidents are frequently held in unofficial, illegal detention centers. Prison conditions in general are notoriously poor, and there are regular allegations of abuse, rape, torture, and death in custody.

9. Mr Hodges, the solicitor for the applicant, then referred to the finding of the Tribunal at paras.35 and 36, relevantly, as follows:

   35. …The Tribunal finds it implausible that if the authorities were sufficiently concerned about his actions to search his house, seize his laptop and arrest his brother they would not have issued some documentation in relation to that or to authorise his arrest or require him to attend court.

   36. On the evidence before it the Tribunal does not accept the applicant argued publicly with a member of the Basij or any other person in his barber shop or say Islam was dead, that he did not believe in Islam or that Khomeini and Khamenei were not good people.

10. The Court was also taken to the finding in the last two sentences of para.43:

    43. …On the evidence before it the Tribunal does not accept there is a warrant for the applicant’s arrest, any documentation requiring him to attend court or that there is any ongoing investigation in relation to him. For all the reasons set out above the Tribunal finds the applicant’s claims about the search of his house, the seizure of his laptop and his brother’s arrest illogical and implausible and does not accept that these events took place.

11. In relation to the applicant’s credibility, the Tribunal said:

    22. The Tribunal finds the applicant has been a credible witness with respect to his personal circumstances: his evidence on these matters has been consistent, direct and logical. In contrast his evidence regarding the claimed argument with the Basiji and subsequent events has been less direct, relying almost entirely on claims that he did not know what had happened after he had left and his family had not found out or not told him. In the Tribunal’s view his evidence about this has been illogical and casts significant doubt on the credibility of these claims.

12. It is clear from what was said in para.3 of the Tribunal’s reason that the Tribunal was alive to the finding made by the delegate, accepting that the applicant had argued with the Basij.  It is also clear from the reference by the Tribunal to the delegate’s finding in relation to credibility that it was the argument in relation to the Basij that had been explored by the Tribunal and that this was a claim in which there was doubt as to the credibility of the applicant. 

13. I accept the first respondent’s submission that it is clear from reference to paras.33, 34, 36, 38 and 42 that the applicant’s credibility in relation to the argument with the Basij was a live issue before the Tribunal.  Indeed, the solicitor for the applicant conceded that the questioning referred to in those paragraphs did support the issue of that argument with the Basij member and related events were a live issue before the Tribunal.  I am satisfied that the argument with the Basij and the alleged events of search of the applicant’s family home, seizure of his laptop and arrest of his brother were clearly flagged by the Tribunal as live issues to the applicant and that there is no substance in the alleged jurisdictional error raised by ground 2.  Ground 2 fails to make out any jurisdictional error.

14. In relation to ground 4, the solicitor for the applicant developed the argument on the basis of the illogicality of the assumption by the Tribunal that there must have been some documentation in the reasoning of the Tribunal which reflected the rejection of the applicant’s credit and the finding that there had been no argument with the Basij and no search of his house, seizure of his laptop or arrest of his brother.  The solicitor for the applicant also put that the country information referred to by the Tribunal in para.41 was not the more recent country information as referred to at CB104 by the delegate as quoted above.

15. It is clear from para.73 of the Tribunal’s reasons that the Tribunal did take into account the country information relating to arbitrary arrest and detention.  Paragraph 73 is as follows:

    73. Country information cited by the delegate in her decision, a copy of which was provided by the applicant to the Tribunal indicates that arbitrary arrest and detention continues to occur in Iran as a means of deterring anti-Islamic activities.¹³ She has also referred to country information which indicates that the profile of individuals targeted by the Iranian government includes politicians, human rights and student activists, writers, academics, lawyers, journalists, bloggers and family members of high profile or reformist politicians and those who have participated in public protests since 2009.¹⁴ The Tribunal finds the applicant’s profile does not place him in any of the categories noted.

16. The footnotes in para.73 relevantly include reference to the footnote material in the quote by the delegate at CB104 referred to above.  Accordingly, there is no substance in the contention that the Tribunal failed to have regard to the most recent country information. 

17. It was a matter for the Tribunal to determine the applicant’s credit.  The proposition that the Tribunal’s reasoning as to the absence of documentation being illogical is, in my opinion, flawed.  It is apparent that the applicant’s claimed incident was one in which it was open to the Tribunal to raise with the applicant the absence of documentation relating to the search of the family home, the seizure of his laptop and the arrest of his brother. 

18. It cannot be said that no reasonable person could have reasoned that the documentation was relevant to an assessment of the applicant’s credit given the surrounding circumstances which included the applicant being unable to tell the Tribunal which organisation was responsible for the claimed search of his family home, seizure of his laptop or his brother’s arrest. 

19. The solicitor for the applicant sought to argue that there were reasons why the family may have been apprehensive in not providing information to the applicant about those responsible for those activities.  This was, however, a matter for the Tribunal to determine in evaluating the applicants credit.

20. To the extent that it suggested that the Tribunal had to make express reference to the most recent country information in the context of its reasoning about documentation, I reject that contention. The Tribunal’s reasons are to be read as a whole. There was no failure by the Tribunal to give adequate reasons within the meaning of s.430 of the Migration Act 1958.

21. In relation to the finding that the events involving the argument with the Basij, the search of the applicant’s house, seizure of his laptop and arrest of his brother did not occur, I do not accept that the Tribunal proceeded on an assumption based on legal processes in Australia in the reasoning identified by the Tribunal.  No jurisdictional error of the kind alleged in ground 4 is made out.  The amended application is dismissed. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 5 November 2015