BMS16 v Minister for Immigration

[2017] FCCA 1616

FEDERAL CIRCUIT COURT OF AUSTRALIA

BMS16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1616

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – whether numerous inconsistencies and contradictions in the applicant’s evidence were minor – whether the Tribunal’s finding that the applicant had fabricated his claims was irrational.

Cases cited:
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266 ALR 367; (2010) 84 ALJR 369; [2010] HCA 16
Stoyanov v Immigration And Naturalization Service 172 F.3d 731 (9th Cir. 1999)
SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198

Applicant: BMS16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 1287 of 2016

Judgment of: Judge Riley

Hearing date: 27 April 2017

Date of last submission: 27 April 2017

Delivered at: Melbourne

Delivered on: 12 July 2017

REPRESENTATION

Counsel for the applicant: Gemma Cooper

Solicitors for the applicant: Asylum Seeker Resource Centre

Counsel for the first respondent: Christopher Tran

Solicitors for the first respondent: Sparke Helmore Lawyers

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Sparke Helmore Lawyers

ORDERS

1. The application filed on 20 June 2016 and amended on 6 April 2017 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1287 of 2016

BMS16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”).  In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

The applicant’s claims

1. The applicant’s claims, as set out in his written submissions to this court, are as follows:

   a.His mother is an Iranian national, but his father is not. He was born in Khanequin, Iraq, where he lived until his parents were expelled and fled to Iran as refugees when he was 2 years old. He does not have citizenship of any country and his father and siblings continue to live in Iran without any legal status.

   b.He never had any identification of any kind in Iran and as a consequence he was deprived of everything. Faili Kurds who have been expelled from other countries are treated badly in Iran.

   c.He was not entitled to education, but put himself through night school for a few years. If a Faili Kurd goes to school where there are Iranians, the teacher and other children are racist towards them.

   d.He had to work illegally and did so from age 13 to help his family.  He was paid 1/4 of the market wage and worked to the point of exhaustion.

   e.If he got sick, he had to go to a private doctor to get care.

   f.As an undocumented Faili Kurd, he and his family could not own property.

   g.When his family comes into contact with the authorities, they tend to mistreat them and are violent towards them because they are Faili  Kurds.

   h.When he was around 14, he was stopped in the street by the Revolutionary Guards, known as Sepah. They asked where he was going and asked for his ID. He said that when he told them he was a Faili Kurd, not an Iranian Kurd, he was smacked and forced into their car, driven to a Sepah station and beaten severely with canes. He could not complain.

   i.A few months later, the Niro Entezami (police) stopped him when he was driving and told him to get out of the car. They asked for his licence or other ID. When he didn't have any, they beat him up.

   j.He fears that if he returns to Iran he will be arrested as the Iranian government does not give him any rights. They will punish him for leaving and as a Kurd they will punish him severely for leaving and using a false passport.

The Tribunal’s reasons

1. The Tribunal found that the applicant was deliberately evasive, vague and obfuscating and in some important respects [had] contradicted earlier evidence.  The Tribunal considered that the applicant was not a credible witness.  The Tribunal considered that the applicant had fabricated his claims of past harm and fears of future harm.

2. The Tribunal found that the applicant was an Iranian national and, as such:

   a)would not face the difficulties experienced by undocumented Faili Kurds in Iran; and

   b)had unfettered access to free health care.

3. The Tribunal found that the applicant did not have a well founded fear of persecution by reason of his Shia religion because he was not of any adverse interest to Sunnis.  The Tribunal found that the applicant was an Iranian national who had left Iran on a valid passport and, as such, would not be at risk by reason of being a failed asylum seeker.

Ground 1

1. The first ground of review in the application filed on 20 June 2016 and amended on 6 April 2017 is:

   The Tribunal fell into jurisdictional error in concluding that the Applicant had fabricated his claims of past harm and his fears of future harm, in that such decision was irrational and not supported by reason.

2. The applicant accepted that the Tribunal has a discretion to make weight and credibility determinations.  However, the applicant argued that those determinations must be made rationally and be properly articulated.  The applicant argued that the inconsistencies identified by the Tribunal in the applicant’s evidence were minor or trivial and could not rationally have led to a finding that the applicant’s claims were fabricated.

3. The applicant relied on SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 where Gordon J, sitting as a single judge on appeal in the Federal Court, said:

   25.Notwithstanding the breadth of the Tribunal’s discretion to make weight and credibility determinations, the requirement described in WAIJ to make those determinations “judicially” imposes limits that credibility and weight determinations be made rationally and logically, and be articulated properly.  It is worth noting in this context that such requirements are not unique to Australia.  Indeed, the United States Court of Appeals for the Ninth Circuit has stated that for a migration Tribunal’s adverse credibility finding to survive appellate scrutiny, there must be a “legitimate articulable basis” for the Tribunal’s finding and the Tribunal “must offer a specific, cogent reason for any stated disbelief”: Stoyanov v INS (9th Cir 1999) 172 F3d 731, 736 (internal citations and quotation marks omitted). The Court in Stoyanov went on to state that “minor inconsistencies cannot support an adverse credibility finding” and that “trivial errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible”: Stoyanov at 736 (internal citations and quotation marks omitted).

   26.Here, the inconsistencies (or rather, omissions) in the first appellant’s evidence adverted to by the Tribunal are at most minor or trivial.  Further, the Tribunal’s reasons disclose no legitimate articulable basis for the finding, based on those omissions, that the first appellant fabricated fundamental aspects of his refugee claims.  Instead, the Tribunal, even while acknowledging that it is not to be expected that an applicant will include every detail in the initial application, concludes without reasons that these are details that should have been provided, finds that they are details so weighty or important as to go to fundamental aspects of the claims, makes an adverse credibility finding, and infers that the claims were fabricated.  Once the bases for these findings and inferences of fact are tested in the manner outlined, it is apparent that the Tribunal’s determination is based on illogical or irrational findings or inferences of fact.  It is a decision not supported by reason.  To put the matter another way, “because it is based upon such findings … the determination is an unreasoned decision”.

4. The applicant acknowledged that the US court in Stoyanov v Immigration And Natualization Service (9th Cir 1999) 172 F3d 731 at 736 in fact remitted the matter for redetermination on the basis of a denial of procedural fairness but went on to say:

   ... In any case, we note that if the BIA continues to find Stoyanov not credible, it must provide a “legitimate articulable basis” for its finding, and “must offer a specific, cogent reason for any stated disbelief.” … “Minor inconsistencies” cannot support an adverse credibility finding.  … Indeed, “trivial errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible.” … (internal quotation marks omitted). We note in particular that where a petitioner initially gives one account of persecution but then revises his story so as to “lesson the degree of persecution he experienced, rather than to increase it,” the discrepancy generally does not support an adverse credibility finding. … (citations omitted, emphasis added)

5. The applicant relied particularly on the emphasised passage in Stoyanov.  However, that passage does not seem to me to represent the law in Australia.  As discussed at the hearing, an applicant might lessen the degree of persecution he or she claimed at the Tribunal stage simply because he or she had forgotten the detail of the story he or she provided at an earlier stage.  Ordinarily, it would be a matter for the Tribunal to determine whether a change in an applicant’s evidence affected his or her credibility or not.

6. The first respondent relied particularly on the test of irrationality set out by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] and [133]; (2010) 115 ALD 248; (2010) 266 ALR 367; (2010) 84 ALJR 369; [2010] HCA 16 as follows:

   131.What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

   …

   133.However, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it. …

7. The first respondent also relied on CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 where McKerracher, Griffiths and Rangiah JJ stated:

   57.The appellant has presented his argument on the basis that the Tribunal expressly concluded that none of those concerns would warrant a general conclusion as to false evidence being given, but that is not what the sentence says.  The word “necessarily” is an essential part of the sentence.  On a reasonable reading of the sentence taken in context, the Tribunal is essentially saying “I do not have to determine whether any one of those several inconsistencies or incongruities would be sufficient because I am satisfied, taking into account that there are a significant number of them, that the appellant cannot be believed.”  It may well be possible on complete analysis that the significant inconsistency about whether or not the appellant had been attacked by the Taliban would be determinative.

   …

   59.One of the difficulties in the appellant’s argument is the conclusion reached by the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, particularly (at [131]), where Crennan and Bell JJ stated that if reasonable minds could differ as to the conclusions to be drawn from the evidence, illogicality or irrationality or unreasonableness could not arise simply because one conclusion had been preferred to another possible conclusion.

   60.In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516,  Wigney J collected the following relevant principles (at [52] and [54]-[56]):

   52.As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

   …

   54.… The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].

   55.Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].

   56.An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.

8. The Tribunal set out a number of reasons for finding that the applicant was not a credible witness and that his claims had been fabricated.  The applicant argued that all of those reasons were minor or trivial.  Consequently, it is necessary to deal with each reason in turn.

9. The first reason was expressed by the Tribunal as follows:

   Date of birth

   68.When first asked by the Tribunal about his date of birth, he recited the date given to him by the Department of Immigration (31/12/1993). When asked to tell the Tribunal his date of birth according to the Iranian calendar, written on the family copy of the Quran, he said without any hesitation that it was 17/7/1370. When the Tribunal advised the applicant that this converted to 9 October 1991 in the Gregorian calendar6, he said he was not sure what his date of birth was.

   69.In relation to his age, The Tribunal accepts that the date 31 December 1993 was given to the applicant by the Department of Immigration following an age determination interview and that date of birth was not based on evidence by the applicant himself. However, the applicant has been inconsistent in his evidence. On the visa application form, the applicant said that he was born on 9 October 1995. As already noted above, at the hearing the applicant said that according to the Iranian calendar he was born on 31 December 1993 as well as 17/7/1370 (which converts to 9 October 1991) as well as that he was not sure of his date of birth.7

   6 >

   The applicant claimed in a statutory declaration made on 19 November 2012 that he was 17 years old.  The Tribunal’s hearing was conducted on 3 February 2016.  If the applicant’s statement about his age in his statutory declaration was correct, the applicant would have been about 20 years old at the time of the Tribunal’s hearing.

10. If he was born on 9 October 1991 in the Gregorian calendar, he would have been about 25 years old at the time of the Tribunal’s hearing.  If he was born on 9 October 1995 in the Gregorian calendar, he would have been about 21 at the time of the Tribunal’s hearing.

11. The Tribunal expressly accepted that the 31 December 1993 date had been assigned to the applicant by the Department of Immigration and Border Protection.  It is clear that the Tribunal did not regard the applicant’s reference to that birth date as being relevant to his credibility.

12. The inconsistency which the Tribunal relied upon was that the applicant said in his visa application form that he was born on 9 October 1995, but told the Tribunal he was born on 17/7/1370 according to the Iranian calendar, which converts to 9 October 1991 in the Gregorian calendar.  The Tribunal also relied on the fact that the applicant said that he was not sure of his date of birth, when he had stated a specific date in his visa application form and had given a different specific date (even allowing for conversion to the Gregorian calendar) in oral evidence to the Tribunal.

13. The applicant asked rhetorically how his confusion about his date of birth is relevant to a finding of fabrication.  However, that question assumes that the applicant was confused rather than deliberately lying about his age.  Obviously, if the applicant had deliberately lied about his age, it might not be too great a leap to conclude that he had fabricated other aspects of his claims.

1. While it is not unusual for people to be mistaken about the dates of various events, they generally know their own date of birth.  The applicant in the present case indicated in his visa application form and in his initial oral evidence to the Tribunal that he did know his date of birth.  In the circumstances, the discrepancy in the applicant’s evidence about his date of birth, and the fact that, when confronted with that discrepancy, he claimed to be unsure of his date of birth, could rationally be relied upon by the Tribunal to conclude that the applicant had given inconsistent evidence. 

2. The inconsistency in the applicant’s evidence about his date of birth may not be sufficient, in isolation, to conclude that his key claims were fabricated.  However, the Tribunal did not purport to rely on the inconsistency in the applicant’s evidence about his date of birth in isolation.

3. In fact, the Tribunal said at paragraph 88 of its reasons for decision, after setting out eight reasons:

   Based on the numerous inconsistencies and contradictions enumerated above, the Tribunal finds that the applicant has fabricated his claims of past harm and his fears of future harm.

4. That is, clearly, the Tribunal’s finding of fabrication was based on the combined effect of the eight instances that the Tribunal discussed in detail.  Therefore, the applicant could only succeed if the Tribunal’s eight reasons, taken cumulatively, for finding that the applicant had fabricated his claims, did not rationally support that conclusion. 

5. Moreover, as will be seen, except perhaps in relation to the applicant’s birth date, the inconsistencies identified by the Tribunal did not concern peripheral details, but concerned the applicant’s key claims.

6. The second reason was expressed by the Tribunal at paragraph 70 of its reasons for decision as follows:

   In his 2012 statutory declaration the applicant claimed that his mother was an Iranian national. At the hearing he said that she was not. The Tribunal is not persuaded by the explanation that the applicant or the interpreter could have made a mistake in his 2012 statutory declaration about this issue, because he explains at paragraph 5 of the same statutory declaration that despite the fact that his mother was a national of Iran, the applicant and other members of the family were not. The Tribunal considers it implausible that the applicant would have inadvertently (or the interpreter incorrectly) added this clarification. The Tribunal finds that the applicant’s mother is an Iranian national.

7. The Tribunal described the applicant’s evidence at the Tribunal hearing, at paragraph 41 of its reasons for decision, as follows:

   He said that his mother was born in Ilam province in Iran and his father was an Iraqi Kurd. When asked if his mother was a citizen of Iran by birth, he nodded and said “yes” in English, but then when asked to confirm that was the case he said that she was not an Iranian by birth. If she were, the family’s situation would have been different. When asked whether in the past he had claimed that his mother was an Iranian national, he said he did not remember.

8. The applicant said in a statutory declaration made on 19 November 2012 that:

   5.My mother is a Kurdish Iranian citizen, though we, her children were never given any rights in Iran. By law, we have remained like my father – stateless and undocumented in Iran. I know that around five or six years ago my father applied for Iranian citizenship though there has been no outcome of that application. The Iranian government does not seem to have taken the application seriously. We continued to have no place in Iran and are deprived of all rights. We had no hope of being treated seriously or with respect as Faili Kurds.

9. Whether the applicant’s mother was an Iranian national by birth was a critical issue, because, as the applicant himself said, if she were, the family’s situation would have been different. 

10. The applicant’s counsel submitted to the court that the applicant’s evidence before the Tribunal on this point was the result of confusion, and that his consistent evidence previously had been that she was an Iranian national.  Obviously, discrepancies of the type presently under consideration can be explained by confusion or by lying or perhaps by other things. 

11. However, the Tribunal clearly thought that the applicant had not told the truth when he said that his mother was not a citizen of Iran by birth.  The Tribunal heard the applicant’s evidence on this point and observed him as he gave it.

12. When counsel’s attention was drawn to the Tribunal’s statement that:

    When asked whether in the past he had claimed that his mother was an Iranian national, he said he did not remember

    counsel said it was somewhat odd and an unusual circumstance. 

13. However, in the circumstances of this case, it seems to me that it was open to the Tribunal to form the view that the applicant could not remember what he had previously told the Tribunal because he had not described his actual experiences but had described a story that had been constructed by him or on his behalf. 

14. It was not irrational for the Tribunal to reach the conclusion that the applicant’s mother was an Iranian citizen by birth, when the applicant had previously said that she was.  It was not irrational for the Tribunal to rely on the discrepancy in the evidence on this point to support its conclusion that the applicant had fabricated his claims.

15. The third reason was expressed by the Tribunal as follows:

    Green Card

    71.In the statutory declaration, the applicant said that his father has “never had a green card” in Iran. The applicant himself was also undocumented.

    72.As noted above, at the protection visa interview with the delegate, he said that his father held a Green Card until about four and a half years earlier (see representative’s submissions of 2 December 2013) [when it was taken by the authorities].

    73.At the Tribunal hearing he was rather vague about this issue. When the Tribunal suggested that a Green Card would have given him the right to study as a child, he said he had no recollection of the time when the family had Green Cards because he was too young at the time. Contrary to the evidence at the interview that the Green Card was “taken by the authorities” (as claimed in the representative’s submissions of 2 December 2013) at the [Tribunal] hearing the applicant said he had no idea whether his father had lost the Card or it had been taken away by the authorities.

16. The Tribunal explained at paragraph 44 of its reasons for decision that green cards were refugee registration cards.  The applicant noted that the Tribunal had said during the hearing that green cards were being replaced by white cards from around 2002, when the applicant would have been between about seven and 11 years old.  The applicant argued that, in circumstances where green cards were replaced by white cards, it is unclear how any confusion about whether the applicant’s father held a green card and the circumstances in which it was lost supported a finding that the applicant was lying about his fears of persecution.  The applicant argued that the inconsistency in the applicant’s evidence relating to the green card was minor.

17. I do not accept that submission.  It seems to me that, in circumstances where the applicant:

    a)said in his statutory declaration that his father had never had a green card, being a refugee registration card; but

    b)said in his interview with the delegate that his father had held a green card until four and a half years earlier when it was taken from him by the authorities; and

    c)then said at the Tribunal hearing that he could not recall his family having a green card and had no idea whether his father had lost the green card or it had been taken away by the authorities,

    it was open to the Tribunal to consider that the applicant was not merely confused but had fabricated his claims.  The issue about the green card does not appear to me to be a minor discrepancy but one that went to a key issue, being whether the applicant’s father had refugee status in Iran.

18. The fourth reason was expressed by the Tribunal as follows:

    Education

    74.In relation to his education, the Tribunal accepts that the applicant could not have started studying in “1991-1993” which is what an officer of the Department of Immigration typed as the applicant’s answer at entry interview.

    75.However, the applicant has provided at least three other versions: according to the audio recording of his entry interview he studied from the age of about 10 until 6 months before he left Iran and he completed 12 years of schooling. According to his 2012 statutory declaration, he studied from the age of 12 until the age of 15 (even if the applicant was born in 1995, which is one of three possible dates of birth, he would have been 15 by the end of 2010) and according to the application form8 he studied from 2007-2010. According to his answer at the hearing in response to the s.424AA adverse information, he studied for about 3-4 years up until 6 months before he left Iran for Australia in 2012.

    76.In his statutory declaration the applicant said that he was not entitled to any education. At the protection interview with the delegate the applicant said that his parents sent him to private school, rather than government school, “because the public schools in Iran consist of all sorts of people, good and bad.” When this information was put to the applicant pursuant to s.424AA of the Act, the applicant conceded that he could have gone to government school, but he (his parents) would have had to pay for it.

    77.The Tribunal has considered the applicant’s explanation that while he could go to a government school, he still would have to pay for it. The Tribunal does not consider this to be a reasonable explanation. The Tribunal considers that if the applicant could access a government school as a child, but his parents would have had to pay for the education, he would have written in the statutory declaration that he was not entitled to free education rather than “I was not entitled to any education”. In addition, if the applicant were entitled to go to a government school as a child, the Tribunal does not accept that his parents would not have tried to send him to school at that time, despite being concerned about racism or religious sectarianism among the pupils. The Tribunal is not persuaded by the applicant’s evidence that his parents pre-emptively decided that he might have problems in the government school and that was why he spent most of his childhood not going to school at all, then he ended up going to private school which cost more than his monthly income (see immediately below) and only for 3-4 years.

    8 Folio 39 of DIBP file.

19. The applicant did not make any specific submissions about this issue.  It does not seem to me that the issues in relation to the applicant’s education were minor.  They went to his entitlements as an Iranian citizen as opposed to an undocumented Faili Kurd.  It seems to me that it was open to the Tribunal to find that the applicant’s evidence about his education was inconsistent and contradictory and supported a finding that the applicant had fabricated his claims.

20. The fifth reason was expressed by the Tribunal as follows:

    Medical and education expenses

    78.The applicant also gave inconsistent evidence in relation to the cost of medical treatment he was receiving in Iran and how much of his income was spent on consultation fees and medication. According to his then representatives’ submissions to the Department of Immigration in December 2013,9 the applicant was spending 150,000-300,000 Toman every 2-3 months. It was submitted that this constituted about 75% of his earnings.

    79.At the Tribunal hearing the applicant disputed this submission. He said he would see a renal specialist once every 2-3 months and spend the equivalent of 75% of his monthly salary.

    80.At the hearing the applicant said that he was paying about 150,000-200,000 Toman a month for education.

    81.According to the application form, in the period 2008-2010 the applicant was earning about 120,000 Toman a month. The Tribunal notes that if the applicant was studying during this period, his medical and education expenses would have exceeded his income (he claimed in the application form that in 2010-2011 he was earning more, but only for about a year). (emphasis added)

    9 At paragraph 17 of the submissions dated 2 December 2013.

21. The applicant did not make any specific submissions about these issues.  It does not seem to me that the issues in relation to the payments for the applicant’s education and medical treatment were minor.  They went to his entitlements as an Iranian citizen as opposed to an undocumented Faili Kurd.  It seems to me that it was open to the Tribunal to find that the applicant’s evidence about the payment for his education and medical expenses was contradictory and implausible and supported a finding that the applicant had fabricated his claims.

22. The sixth reason was expressed by the Tribunal as follows:

    History of past harm

    82.The applicant has also given inconsistent evidence about his claims of past harm. In the statutory declaration, the applicant claimed that on one occasion he was driving without a licence and he was stopped by the authorities. He claimed that when he could not produce ID, he was beaten up. In addition, the applicant claimed that this incident occurred “a few months” after an earlier incident involving members of the Sepah. The earlier incident occurred when the applicant was 14. It follows that when the applicant was caught driving a car, he would have been 14 or 15, under the age at which one can obtain a driver’s licence.

    83.At the hearing, the applicant said that he had indeed been stopped when he was driving a car unlicenced, but he was not harmed. All the paperwork relating to the car was in order and he was not assaulted, despite the fact that he had no driver’s licence. Thus, on the applicant’s own evidence, he was let go and was not even fined by the police, despite breaking the law.

    84.If the applicant was an undocumented Kurd and if – as the applicant claims in the statutory declaration – the authorities would use any pretext to use violence against Faili Kurds whenever they get a chance10 – catching the applicant in control of a vehicle at the age of 14-15 would have been an easy excuse for the police to harass him or worse.

    10 At paragraph 17 of the statutory declaration.

23. The applicant did not make any specific submissions about these findings. It does not seem to me that the issues in relation to the applicant allegedly being caught driving a car at the age of 14 or 15 were minor.   They went to the risks he faced as an undocumented Faili Kurd. It seems to me that it was open to the Tribunal to find that the applicant’s evidence about his treatment, as an undocumented Faili Kurd, when caught driving a car at the age of 14 or 15 was implausible,  was inconsistent with his claim to be an undocumented Faili Kurd and supported a finding that the applicant had fabricated his claims.

24. The seventh reason was expressed by the Tribunal at paragraph 85 of its reasons for decision as follows:

    The only other incident mentioned in the applicant’s statutory declaration as an instance of physical harm was said to have involved driving the applicant to a Sepah “station” where he was assaulted. At the hearing, the applicant repeated the claim that he had been assaulted, but he said this happened at a checkpoint and he managed to escape, without being taken to a “station”.

25. The applicant did not make any specific submissions about this finding. It does not seem to me that the issue in relation to whether the applicant was assaulted at a police station or at a checkpoint were minor.  If a person had been assaulted by the police on one occasion, the person would be likely to remember whether the assault occurred at a police station or at a checkpoint.  The fact that the applicant gave inconsistent evidence on the location of the alleged assault tends to suggest that he was not recounting an incident that he had actually experienced, but was trying to remember the details of a story that had been constructed by him or on his behalf.  It seems to me that it was open to the Tribunal to find that the applicant’s evidence about the location of the alleged assault was contradictory and supported a finding that the applicant had fabricated his claims.

26. The eighth reason was expressed by the Tribunal as follows:

    Bank passbooks

    86.At the protection interview with the delegate in 2013, the applicant said that his parents had a bank passbook. At the hearing he said that they did not. Then he added that they might have had bank accounts when they were the holders of refugee Green Cards, but he was not sure.

    87.The Tribunal notes that while the question whether the applicant’s parents could open bank accounts (and had pass books) is a minor issue, it is indicative of the “evolution” in the applicant’s evidence over time. The Tribunal considers it implausible that if – to the best of the applicant’s knowledge – his parents did not have a bank account, he would not have mentioned it at interview with the delegate. (emphasis added)

27. The applicant did not make any specific submissions about this finding.  As the Tribunal acknowledged, the issue in relation to whether his parents had a bank passbook was minor.  However, as the Tribunal also noted, it was one further instance of the applicant’s story changing over time.  The Tribunal considered that it was implausible that the applicant would not have said to the delegate that his parents did not have a bank account if that was the case.  It seems to me that it was open to the Tribunal to take that view and consider that it supported a finding that the applicant had fabricated his claims.

28. Based on the eight areas of inconsistency and contradiction discussed above, the Tribunal concluded that the applicant had fabricated his claims of past harm and his fears of future harm.

29. After making that finding, the Tribunal, at paragraph 89 of its reasons for decision, said:

    The Tribunal finds that the applicant’s insistence that he has absolutely no documents whatsoever in his name – not even a document from the school he attended – is implausible. The Tribunal finds that the absence of identity documents is due to the fact that he is not telling the truth about his citizenship status. The Tribunal finds that the applicant is an Iranian national.

30. The applicant did not make any specific submissions about this finding.  It does not seem to me that the issue of whether the applicant had any documents in his name was minor.  It went to his claim to be an undocumented Faili Kurd as opposed to an Iranian citizen.  It seems to me that it was open to the Tribunal to find that the applicant’s claim that he had no documents whatsoever in his name was implausible and supported a finding that he had fabricated his claims.

31. It seems to me that the Tribunal’s findings in the present case are quite different from the discrepancies that were found to be minor in SZLGP.  In that case, the applicant had failed to mention in his initial statement the name of a village or that a particular person came from that village but had identified the village by name and had said that the particular person came from that village in his oral evidence to the Tribunal.  Because of the applicant’s failure to mention those details in his initial statement, the Tribunal in SZLGP, wrongly, concluded that the applicant had fabricated his claims.  In SZLGP, the applicant did not give inconsistent evidence about the name of the village or that a particular person came from it, but simply did not provide those details in his initial written statement.  The present case is quite different, because the applicant did give significantly inconsistent evidence on a number of significant matters. 

1. I do not accept that it was not open to the Tribunal in the present case to rely on the matters it identified to conclude that the applicant had fabricated his claims of past harm and his fears of future harm.  I do not accept that the Tribunal’s treatment of the various inconsistencies and contradictions in the applicant’s evidence was irrational in the sense required to find jurisdictional error.  There is no substance to the applicant’s first ground.

Ground 2

1. The second ground of review in the application filed on 20 June 2016 and amended on 6 April 2017 is:

   The Tribunal fell into jurisdictional error in concluding that the Applicant was an Iranian national, in that there was no evidence to justify the making of such finding.

2. At the hearing before this court, the applicant’s counsel orally applied to withdraw the second ground of the amended application and was given leave to do so. There is no need to consider the second ground further.

Conclusion

1. As the applicant’s sole remaining ground of review has not been made out, the application must be dismissed with costs.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate:

Date:       12 July 2017