BNX19 v Minister for Immigration and Anor (No.2)

[2020] FCCA 1683

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNX19 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2020] FCCA 1683

Catchwords:
MIGRATION – Application for judicial review of a decision made by the Immigration Assessment Authority to refuse a Safe Haven Enterprise Visa – where applicant claims the Authority failed to take account of his medical condition, failed to consider the exercise of a discretion to get new information and erred in its adverse credibility assessment – satisfied the Authority referred repeatedly to the medical claims made by the applicant – satisfied the Authority had no obligation to make new inquiries – satisfied there were many independent factual matters that led to the Authority’s adverse credibility assessment.

Legislation:

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

Cases cited:

BVD17 v Minister for Immigration & Border Protection [2019] HCA 34,

(2019) 373 ALR 196

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223
Minister for Immigration and Citizenship v SZIA [2009] HCA 39, 83 ALJR 1123
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40, (1986) 162 CLR 24

Applicant: BNX19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 140 of 2019

Judgment of: Judge Young

Hearing date: 5 June 2020

Date of Last Submission: 5 June 2020

Delivered at: Darwin

Delivered on: 5 June 2020

REPRESENTATION

Counsel for the Applicant: Mr H. Smart

Solicitors for the Applicant: Mabo Chambers

Counsel for the 1^st Respondent: Mr D. O’Leary

Solicitors for the 1^st Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs as agreed or assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 140 of 2019

BNX19

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review of a decision made by the Immigration Assessment Authority (“the Authority” or “the IAA”) on 19 March 2019 affirming a decision of the delegate made on 12 February 2019 to refuse the applicant a Safe Haven Enterprise Visa (a protection visa).

3. The applicant claimed he was a stateless Faili Kurd.  He claimed that he was born in Iraq in 1945 or thereabouts and expelled from Iraq to Iran in 1971.  He said that in Iran he was without citizenship and he was initially given something called a green card by the Iranian authorities, a card which entitled the applicant to be treated as a refugee and, perhaps, gave him the right to reside in Iran and access various services; in any event, an identity card for a refugee.  He said that he lived in Ermarat village in Ilam Province in Iran.  He claimed that he had no identity documents and his green card, the refugee card, was seized by the Iranian authorities in about 2002 and was not returned to him, and thereafter he had no civil rights.  He was unable to access services and the like. 

4. He said, further, in his written claims that the government authorities would set crops on fire and kill the animals in his community, which I understood was a community of similarly stateless persons, Faili Kurds.  He said that on one occasion, the Basij, who were an Iranian police or militia force, raided his home, and he was imprisoned and tortured because he was a Faili Kurd and a non-citizen of Iran.  He said that in consequence of those events, he suffers physical and mental health problems.  He left Iran with his two sons and their families in 2013, he claimed, on false passports.

5. The evidence before the delegate and, indeed, before the Authority was that the applicant suffers from some very serious physical medical conditions, and they are outlined in some detail over a number of pages in the court book.  There was also a claim contained in a letter signed by two people who were counsellors at a counselling service, in one case, signed by a person who appeared to be a registered nurse, I take that from the letters “RN” under her signature, and another person who was a social worker.  That letter claimed that the applicant suffered some post-traumatic stress symptoms.

6. The Authority generally did not accept the applicant as credible.  In relation to a number of events claimed by the applicant, the Authority was not satisfied that those events were true. I will give a number of examples. 

7. In relation to the applicant’s claim that he had been issued with a green card in Iran, that that was later seized by the authorities and he was left essentially without any identification and was thereby deprived of access to government services and educational services, the Authority, relying on country information, accepted that in 2002 in Iran, green cards given to refugees had been replaced with a white card.  It appeared that the new card was a process of the digital recording of such people as the applicant claimed to be.  The country information indicated that persons who had held such green cards had been issued with a new identity card.  The Authority did not accept as plausible the applicant’s claim that he had been refused a new card because he was a non-Iranian, in part because the point of such cards was that they were held only by non-Iranians.  They were an alternative to citizenship.

8. The Authority also pointed to various inconsistencies in the applicant’s own narrative.  It said that it appeared from the applicant’s claim that his father had died when he was a young child in Iraq that the applicant’s father must have died sometime in the late 1940s and there was some material in the applicant’s own material to suggest that that was the case.  But the applicant’s material also referred to, at one point, the birth of the applicant’s brother in Iran in 1964, which was inconsistent with the applicant’s father, assuming the brother was a full brother, dying in the late forties and also inconsistent with the applicant’s claim that he came to Iran in 1971.

9. Another aspect of the adverse credibility assessment of the applicant arose from information in the possession of the Authority that the applicant and his wife, or the applicant at least, had bank accounts in their name in Tehran and that the applicant’s children, one of whom at least had arrived in Australia in 2010, was sending money to those accounts.  That was inconsistent with the applicant’s claim that he had resided throughout the period of his life in Iran in the village of Ermarat and had only left that village preparatory to coming to Australia. 

10. The applicant claimed that the people smugglers that he came with had arranged for that account to be opened in his name in Tehran, and the money sent by the applicant’s child or children to Tehran was simply being sent to the people smugglers.  The Authority found that implausible because, again based on country information, it was satisfied that to open a bank account in Iran required reasonably stringent evidence of identity.  

11. It concluded on the basis of the accounts in Tehran, that of the applicant and his wife, that the applicant and his wife had lived in Tehran and not a remote and impoverished village, as he said, before coming to Australia.  It rejected the applicant’s claims that he had no control over the bank accounts and they were simply opened by smugglers.  The Authority was of the view that the money transfers from the applicant’s child in Australia indicated that the applicant had resided in Tehran before he departed for Australia.

12. There were some other issues that in the assessment of the Authority raised significant doubts about the applicant’s credibility.  It said that his claims that the Iranian authorities had burned crops and killed animals in the applicant’s village and the claim later raised in the protection interview that his daughters had been raped by the same authorities were fanciful and inconsistent with country information about that area and the treatment of the Faili Kurds in that region.

13. Another factor that the Authority was concerned about was the fact that on arrival in Australia or soon after arrival in Australia in 2014, the applicant had a surgical plate or surgical screw removed from his hip.  This was described as a platinum plate or screw in the materials in the court book and the Authority was of the view that the insertion of such a surgical plate or surgical screw was indicative of access to a reasonably high level of medical treatment in Iran.  This was also inconsistent with the applicant’s claims that he was a persecuted and stateless Faili Kurd without citizenship.

14. The Authority was satisfied that the applicant was, in fact, an Iranian citizen.  It did not accept that he had resided in Ermarat village prior to his departure and it did not accept that he suffered persecution at such a level that he was unable to access services in Iran such as, for example, significant medical treatment.

15. The grounds of review are as follows:

    (1)    The IAA committed jurisdictional error in failing to take account of the medical capacity of the applicant at the interview stage, as evidenced by his having post-traumatic stress disorder (“PTSD”);

    (2)    The IAA committed a jurisdictional error by not making further inquiries as to how the applicant came to suffer PTSD;

    (3)    The IAA committed a jurisdictional error in making a finding of lack of credit against the applicant by reference to his claim that his daughter lived in a village only some minutes’ walk away.

Grounds 1 & 2

1. I will deal with Grounds 1 and 2 together.  It is apparent from the references in the IAA’s decision at paragraphs 8, 13, 20, 25 and 26 that the Authority was well aware of the applicant’s claims in relation to his medical and psychological state.  At paragraph 8 the Authority referred specifically to a report from a counsellor at a torture trauma counselling services that the applicant had:

   ...revealed post-traumatic symptoms, which include memory and concentration issues.  It [the report] also stated that his trauma symptoms may impinge on his capacity to provide a coherent, consistent and complete narrative required for completing his application for protection and he would benefit from having an agent to assist him in his application and interview process.  Another note from his doctor in June 2017 indicates that he had complained of difficulty with his memory for the past 12 months.

2. The Authority noted that the applicant did, in fact, have the assistance of a lawyer/migration agent who assisted him in preparing his application for protection and in attending his protection visa interview.  It appears that he also had assistance from an agent in preparation of the submission to the Authority.  It is clear that the Authority was well aware of the claims made by the applicant of post-traumatic symptoms or difficulties with memory and the like.

3. It is noteworthy that there is no frank medical or psychological diagnosis of PTSD in the materials.  The letters from the counsellors do not, in my view, amount to a diagnosis of PTSD and nor do the extensive medical notes contain such a diagnosis.  When the applicant in his Grounds 1 and 2 of review refers to PTSD there is an element of tendentiousness in that description and I am not satisfied that there is, in fact, such a diagnosis.  Nevertheless, in broad terms, the Authority was well aware of the claims.

4. At paragraph 26, the Authority discounted the claims that the indications of trauma or so on were the result of trauma or abuse in Iran.  The Authority noted, as is clearly the case, that the materials suggested that the applicant had some very serious physical ailments, apparently unrelated to those events.  He had had financial concerns and was experiencing social isolation, as his wife and at least one or more of his children remained in Iran. 

5. The Authority noted that the report from the counsellors did not elaborate on how they determined, if they did, that his problems related to experiences in Iran.  The Authority went on to say that given its concerns about the report, concerns which I’ve alluded to, it concluded that the report did little to outweigh the other concerns about the applicant’s credibility which the Authority had identified and which I have summarised.

6. In relation to Ground 1 I simply do not accept the factual premise in the ground, that is, that the IAA failed to take account of what is described in the ground as medical incapacity or PTSD.  In fact the Authority referred repeatedly to the claims made by the applicant of physical and mental health problems, or at least problems with memory, and thereby by definition took them into account but discounted them for the reasons I have referred to in reaching the adverse credibility assessment.  In my view, the process of reasoning of the Authority was unexceptional.

7. In relation to Ground 2, the related ground, it was said that the Authority committed error by failing to inquire how the applicant came to suffer PTSD.  I have already indicated that the description PTSD is tendentious in the context of this case as there is no medical or psychological evidence that the applicant suffers from PTSD.  The Authority had no obligation to make inquiries in general. 

8. The applicant asserted, or the applicant’s counsel at least, asserted that there was some kind of general obligation on the Authority to make inquiries. The limit of that obligation was not identified. As a general proposition the submission is untenable because the provisions of Part 7AA of the Migration Act provide a code as to when the Authority may get new information. It must be relevant, under section 473DC it must not have been before the delegate and there must be exceptional circumstances to justify considering the new information. It is at best a discretion and as the High Court said in BVD17 v Minister for Immigration & Border Protection [2019] HCA 34, the Authority is not required to give reasons for exercising its discretion one way or another.

9. It may be that in the circumstances it is arguable that the Authority was required to consider the exercise of a discretion to get new information but in the absence of any obligation to provide reasons and the absence of actual reasons, there is no evidence that the discretion was not considered.

10. The other way of approaching that is that regardless of evidence of whether or not the exercise of the discretion was considered, the outcome was in itself irrational or unreasonable, so-called Wednesbury unreasonableness or outcome-focused unreasonableness.  In my view there was nothing unreasonable about the way the Authority approached the matter.  It had information before it including evidence of wide-ranging physical, mental and some very significant social problems that the applicant was facing.  It had an assertion from persons who were not medically or psychologically qualified, in all probability, to make a diagnosis of PTSD and it is very difficult to see what inquiry could reasonably have been made that would shed any more light on the origin of the applicant’s symptoms, if they existed.

11. It therefore cannot have come into the limited category of cases where the Authority may have some kind of obligation to make an inquiry.  Counsel for the Minister referred to a line of cases, one of which was the judgment of the plurality in Minister for Immigration and Citizenship v SZIA [2009] HCA 39 at paragraph 25, where it was said, referring to the Administrative Appeals Tribunal (“the Tribunal”) rather than the IAA, as follows:

    The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.

12. In my view, the circumstances claimed here come nowhere near to being a critical fact, the existence of which could be easily ascertained, that is, why the applicant was apparently exhibiting symptoms of post-traumatic stress.  There was no such obligation.

Ground 3

1. In relation to Ground 3 it was said that the Authority made a jurisdictional error by making an adverse credit finding against the applicant in relation to his claims about his daughter living 10 or 15 minutes’ walk away in a village called Larini, which the applicant claimed was 10 to 15 minutes’ walk from his own village of Ermarat. 

2. It appears that the Authority has made its own inquiries about Larini or the whereabouts of Larini, and the Minister tendered two Google Maps showing the whereabouts of a place called Larini-e-Ajoudan, which was said to be in excess of four hours’ drive away from Ermarat.  Though the evidence is not clear to me, I infer the Authority undertook some similar process of consulting Google Maps to see where the Larini referred to by the applicant might be.  It found Larini-e-Ajoudan, which as I said was in excess of four hours drive away from Ermarat, so it considered that the applicant’s claim that he had always lived in Ermarat and his daughter lived nearby was inconsistent with that other information.

3. The applicant frames that not as a factual error but as an irrelevant consideration.  Just why that was irrelevant is unclear to me from the submissions.  Where the truthfulness of the applicant’s claims about his residence was central to his claims, that is his claim that he lived in an impoverished village in western Iran and where the Authority concluded that he was in fact living in Tehran, it seems to me that some inquiry about consistency in geography or lack of consistency was relevant.

4. The submission was that the Larini referred to, and there was no evidence about this before me, was in fact, a village that doesn’t appear on Google Maps and was in fact near to Ermarat.  It seems to me that is, however, nothing more than a disagreement with a factual conclusion of the Authority.  There is nothing before me which indicates that the Authority was right or wrong about that factual conclusion.  I simply don’t know.  On the face of it, it appears like it was an aspect of a relevant inquiry, that is, an inquiry into the truth or otherwise of the applicant’s refugee claims.

5. Mr O’Leary for the Minister referred to his memory of Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 without taking me to a paragraph and asserted that according to Mason J irrelevant considerations were considerations that were prohibited by the statutory scheme. I do not think its necessary to go that far and I am reluctant to accept submissions based on binding authority where the binding authority is not expressly before me, unless I know the passage myself, and it is some time since I read that case. In any event, I don’t think it’s necessary to accept Mr O’Leary’s submission about that. I am satisfied that on the face of it, the inquiry was relevant to the statutory task that the Authority was given.

6. I might say that I consider the value of that finding to be of limited significance and, indeed, if the adverse credibility assessment rested on that finding alone, there would hardly be an evident and intelligible basis for the adverse credibility assessment.  However, this is not a chain of reasoning case and that finding was not a necessary link in a chain of reasoning.  This is a case where there were multiple strands in a rope, so to speak, of reasoning in arriving at an adverse credibility assessment, including matters that I’ve already referred to, which are all independent. I consider that that fact, even if erroneous, is not jurisdictional error and I do not consider it was likely to lead to a cascade of misapprehension by the Authority.  There were many other quite independent factual matters that led, really inescapably, to the conclusion that the Authority reached.  That ground is not made out and the application is dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate:

Date: 24 June 2020