BQQ16 v Minister for Immigration

[2019] FCCA 1829

FEDERAL CIRCUIT COURT OF AUSTRALIA

BQQ16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1829

Catchwords:
MIGRATION – Application for judicial review – Tribunal giving applicant’s representative’s assertions no weight as not given in sworn evidence – applicant radically changing vital evidence only part way through Tribunal hearing – Tribunal’s adverse credit findings open to it in the circumstances – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Minister for Immigration and Multicultural Affairs v Eshetu (1997) 197 CLR 611

Applicant: BQQ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1399 of 2016

Judgment of: Judge Burchardt

Hearing date: 28 June 2019

Date of Last Submission: 28 June 2019

Delivered at: Melbourne

Delivered on: 1 August 2019

REPRESENTATION

Counsel for the Applicant: Ms G. Costello

Solicitors for the Applicant: Victoria Immigration Lawyers

Counsel for the First Respondent: Ms Lucas

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay the Respondent’s costs fixed at $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1399 of 2016

BQQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an application filed 1 July 2016, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal dated 6 June 2016.  The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa. 

2. Although the application turns on a relatively short point involving consideration of the approach the Tribunal took to submissions made by the applicant’s representative, the way the matter unfolded can only be understood properly if the materials advanced by the applicant from time to time are considered in some detail.  The applicant was an unauthorised arrival and his entry interview is at court book (“CB”) 10-28.  I note inter alia that he gave his brother as an emergency contact, including his phone number, at CB 14. 

3. At CB 17, under the heading Reason to Leave, the applicant said he had left Iran because he had a problem and the problem was that “My parents are not Baseej and Sepah”.  He went on to say that his previous job was with glass and “it damaged my health, and somehow I was damaged or injured by glass, so my parents were forcing me to join Sepah.”  He then went on, when asked if his life was in danger in Tehran, to respond:

   It wasn’t in danger, but, actually they were forcing me to leave my previous job and join Sepah.  First of all I would have been in a different occupation and second I would have been one of themselves and Baseej wouldn’t bother me anymore or annoy me. 

4. When asked what would happen if he returned to Iran, he said he would be killed by Baseej and Sepah.  I note that at CB24 the applicant indicated overseas travel in 2012 to Thailand for fun, in Hat Yai, and prior travel at CB23 to Turkey, likewise for fun, to Istanbul. 

5. The applicant’s statement of claim is at CB31-33.  He deposed to being injured at work in June 2012.  He deposed:

   Based on the occupational health and safety risks, my parents began expressing discontent with me continuing my work as a glazier.  They recommended me to become an employee of Sepah instead.  I refused because I had no interest working with Sepah, whilst I really liked my job as a glazier. 

6. He went on to depose to a second injury, and at paragraphs 5-8 deposed:

   This time my parents mounted the pressure on me.  My eldest brother Abbas had a friend in Sepah.  My parents asked my brother to use his contact and facilitate my recruitment in Sepah.  I resisted again. 

   In or about the same time, I had confrontations with the local Baseej members over possessions of satellite dish in our house.  They had confiscated our satellite receivers previously and were harassing me over petty matters ever since.

   I never liked working for Sepah.  It is a religious organisation that would limit my personal rights and freedom.  The culture of that organisation disgusts me and I had no intention to step on my morals and work for Sepah to make money.  My parents were, however, determined that they would not allow me to work as a glazier any more, and the safest job (from a security perspective) would be to be employed by Sepah. 

   I had serious discussions with my parents to change their views but they would not budge.  They had forced my brother to enrol me as Baseej member ( which was a preliminary to be employed by Sepah) in the mosque located in Ghiasi square.  My brother also brought me the relevant employment forms. 

7. At paragraphs 9-11, the deposition continued: 

   After two months, my parents started forcing me to apply to Sepah.  I refused again but they went ahead and filled out the application forms for me.  I could not think of working for Sepah.  I had no option to escape from the country to spare myself from becoming of a criminal organisation.  I fled Iran in January 2013 without telling my parents where I was going. 

   A couple of weeks after I arrived in Indonesia, my parents found out.  My brother told me not to return to Iran because my application was lodged with Sepah and they were looking at the reasons why I had left Iran.  My brother’s friend had complained to my brother that my failure to go ahead with employment application had upset Sepahis because they thought I had played around. 

   I believe that if I return to Iran, I will be investigated by Sepah with respect to the reasons I left the country.  They will harm me when they find out that I have applied for protection in a Western country to avoid joining Sepah.  I am very concerned that my parents’ pressures will continue to finalise my recruitment in Sepah. 

8. The decision of the delegate is at CB 98-117.  The delegate accepted the applicant was who he said he was – something then in issue – and noted the applicant’s travels to Turkey and Thailand and, indeed, Iraq (CB103).  The delegate accepted that the applicant was a citizen of Iran and traversed the applicant’s claims at CB105-106.  The delegate’s summary of the applicant’s claims paraphrases, entirely fairly in my view, the matters in the applicant’s statement of claims.  The delegate was satisfied that the applicant was a generally credible witness and was prepared to accept his claims.  At CB 107, the delegate noted:

   The applicant fears returning to Iran as he willbe imputed with a political opinion of being against the Iranian regime, as he applied for the Sepah and then fled to a western country. 

   The applicant also fears that his parents will force him to join the Sepah if he returns to Iran.  The applicant claims he is morally opposed to joining the Sepah as they are a religious organisation that would limit his personal rights and freedom, and because he enjoyed working as a glazier.  Whilst I acknowledge that the applicant’s fear is not entirely Refugee Convention related I am satisfied that there is a political and religious element to his fear.  I have deduced that the applicant fears being treated in a persecutory manner for his opposing religious and political view if he was forced to join the Sepah and thus have considered his claims below. 

   The applicant also suggested that he had been involved in previous incidents with the Baseej due to ownership of an illegal satellite receiver.  I find that this claim is also related to the Refugee Convention ground of imputed political opinion and have thus considered it below. 

9. The delegate continued:

   The applicant fears that on return to Iran, he will be investigated and harmed by the Sepah as a result of fleeing to a western country after completing an application to join their ranks.

   The applicant’s agent also submitted that the applicant would be labelled after the incident and that as a result of this he would be unable to seek government employment, would have his civil liberties taken and potentially be imprisoned.  I am satisfied that cumulatively these fears amount to serious harm.

   The applicant also fears that his parents will continue to pressure him to join the Sepah.  Whilst I am not satisfied that being made to join the Sepah amounts to persecutory behaviour I am satisfied that the applicant may be subject to persecution within the Sepah as a result of his opposing religious and political standpoint.  I am satisfied that, depending on their treatment, this has the potential to be considered serious harm.

   The applicant also claims that he has been harassed in the past by the Baseej for refusing to take down an illegal satellite receiver.  He claims that if he joined the Sepah these issues would disappear and thus I have considered the applicant’s fear of returning to Iran with this history of the trouble with the Baseej.  I am satisfied that the Baseej would harass the applicant, making it difficult to find future employment and potentially causing him mental and physical harm.  I am satisfied that this amounts to serious harm.

10. The delegate went on to consider country information about Sepah membership in some detail.  At CB 111, the delegate said:

    I am satisfied that there is significant information to confirm the applicant’s parents’ motivation for wanting the applicant to join the Sepah.  I am satisfied that the above country information confirms the applicant’s statements, which suggests that the forms from the Sepah were likely given to his family through someone already in the forces and that he was enrolled with the Baseej through his local mosque.  There is no information before me which suggests that the applicant was finally determined to be a member of the Baseej, nor is there information before me which suggests that members of the Baseej would be impeded from leaving the country or questioned on return, particularly due to their very high number of members.  I am therefore satisfied that there is no real chance that the applicant would be subject to persecution on return for having registered with the Baseej before fleeing Iran. 

    The balance of country information above indicates that the Sepah does a significant amount of research on the political history of any potential new members.  This information suggests that those who are found ideologically unsuitable would not be allowed to join the force.  As stated in the country information, there is no evidence that the Sepah forcibly recruits and would not take on anyone that would cause dissonance within the ranks.  I am satisfied that the applicant’s actions in leaving the country would indicate to the Sepah, if they had in fact investigated the applicant, that he was not serious about joining and that he would therefore be considered inappropriate from a recruitment perspective.  There is no evidence to suggest the Sepah would continue to monitor the applicant particularly as he claims not to have not been involved in politics in the past, either in Iran or abroad in Australia.  I am therefore not satisfied that there is sufficient evidence to suggest the applicant has a real chance of being subject to persecution by the Sepah if he were to return to Iran.

11. The delegate went on to dismiss any claims of likely persecution, on the basis that the applicant had owned a satellite receiver. 

12. The delegate also considered the applicant’s claims against the complementary protection criteria in section 36(2)(aa) of the Migration Act and came to a conclusion adverse to the applicant.

13. The applicant provided a written submission through his agent, Mr Ghanbari, which is at CB 124-132.  I note that at CB 125 the submissions asserts:

    The idea of a child joining the Sepah is therefore seen by some parents as a way for the child to ensure a good and secure future with a very wealthy organisation.  For (the applicant), however, the idea did not hold any appeal and he returned to his glazier role.  In 2012, however, he again suffered a work injury - to his left forearm this time - which required that he take some three weeks away from work.  During this time the question of joining the Sepah again arose, this time more forcefully.

14. At CB 126 the submission notes:

    On the other hand, (the applicant) had personal reasons for refusing to contemplate the idea.  He had at about that time experienced two run‑ins with the Baseej who had confiscated his satellite dish and receivers as part of their efforts to ensure local compliance with government policies.  More significantly, the Applicant has strong personal and moral objections to the work conducted by the Sepah on the grounds that such work was based on its religious roots.  We note that our client completed his military service as required but, by way of contrast, was not willing to engage with the quasi‑military Sepah, even at risk to himself by refusing to comply with their expectations.

15. Having dealt with the applicant’s parents’ endeavours to enrol him in the Baseej and the Sepah, the submission continued at CB 127:

    Having this degree of pressure brought onto him resulted in (the applicant) deciding to flee Iran … Two things ensued – firstly, the friend of Abbas reported that the Sepah were very angry with the Applicant because they viewed his actions with suspicion and were also angry because it seemed to them that he had just fooled around by applying and then refusing to actually join…   Secondly, given the strong reaction by the Sepah, Abbas rang (the applicant) and told him that he should not return to Iran.  Abbas’ information was that the Sepah were looking for the applicant with a view to some form of harm to him.

16. At CB 128 the submission asserts:

    His fear is that the Sepah will not just extract revenge because he did not follow through on his application.  He is very afraid that the Sepah will assume that fleeing to the west was, in addition to refusing to join up, a political action that says a great deal about his true feelings and beliefs.  He fears that the Sepah will assume that he provided information to a foreign nation, which is an action which the Iranian regime is itself fearful of.

17. I have regard to the rest of the submission and I note at CB 131 the submission asserted:

    We submit that the real issue is, and should have been seen as, the fear our client has on the basis he is seen as having deserted the Sepah, especially after his family completed his application and then pushed its processing through the friend of their son, Abbas.  The fact that our client was not a willing participant in the application process does not mitigate the fact that the application was processed.

18. It should be noted in parenthesis, therefore, that up until the start of the proceeding the very clear tenor of the applicant’s materials was that, while he had been joined up in Sepah and, indeed, in the Baseej, this was essentially against his inclination and will and that he left Iran as a result.  He posited a positive abhorrence for the Sepah as part of his views. 

19. At the Tribunal hearing, the transcript shows a number of initial inquiries by the Tribunal as to the applicant’s family and at T5 the following exchange took place:

    Can you tell me, why do you fear returning to Iran?‑‑‑Ah, because my father is – is with Sepah and, um, to be honest, he forced me into – into joining Sepah and working in the – in the family profession.  Um, because I’m – I was – understand – because my father was with Sepah before I – I got out of the country.  I had to fill a form and – and  because I did and then I get out of the country, now they are putting pressure on my dad, um, in regards to the sort of information he has given me and sort of information I have that I had – um, I can present to – to foreign countries and – and I believe if I go back to Iran, um, before the Sepah can arrest me, my dad will and he will interrogate me and ask what sort of information I have and what sort of information I gave to – to foreign authorities, and then he will – he will, um, have Sepah harass me and do that all over again, because I believe he can do that.

20. The Tribunal then taxed the applicant with the fact that in his application he had his brother was the one with contacts in Sepah, not his father, and that this was a new claim, “and I might think that you’re trying to embellish and strengthen your claims by making this up.”  The applicant asserted that if he had disclosed this information to the Tribunal, the information would be available to his father should he return to Iran and his situation would get worse.  He stated that his brother was still working with Sepah at T6, but his father was retired.  His brother had worked with Sepah for around 10 years.  I note that when asked at T6 why he had not enrolled at the Baseej at an earlier age, the applicant said he did not want to:

    we had fights over that and I have been having these fights with my father since I was 18.

21. When asked, “Were you ever a member of the Baseej?” he replied “no”.  He then went on to say that his family had got him the Basij card and signed him up in the Sepah.  The Tribunal noted that he might have to go through indoctrination to be a member of the Baseej and the applicant gave his answer at T7.  The Tribunal pressed at T7 what training the applicant had and asked at line 27, “What sort of a member were you?” to which the applicant replied:

    A normal member.  I was a normal member, but if – if you wanted to be an active member you had to go to the shooting classes and then, um, some religial [sic]/political training as well.

22. The Tribunal put doubts about whether the applicant was a Baseej member to him at T8 and it is fair to say that the tenor of the applicant’s answers were clearly seeking to diminish any involvement with the Baseej.  At T8 the applicant said:

    first of all, we need to establish that there’s – that I’m not talking about Baseej, it’s - it’s all about Sepah the way things were going on I had to join the Sepah and I didn’t want to do that. 

23. When asked why he might be harmed for taking that stand, he repeated that he did not want to join the Sepah but his father wanted to and was forcing him into doing it, and he did not really agree with him.  The Tribunal put to him that Sepah was an organisation that carefully vets and investigates people who wish to join it and would not want him if he did not want to join the Sepah.  The applicant said that it was his father who doing the recruitment process (T9).  He described being under pressure for a long time from his father and brother, and at T9 the Tribunal asked why he did not leave Iran earlier, to which the applicant responded:

    the pressure was always there, but about six or seven months before I left Iran it got severe, so they put a lot more pressure on me.

24. And after that he had this injury to his hand: 

    They then doubled their efforts, and I really felt the pressure, and I could not stand it any more. 

25. The Tribunal then asked why the applicant had given his father and brother’s contact details and traversed with the applicant some inconsistencies in his assertions that they were part of his difficulties in Iran.  The Tribunal also asked (at T11) why the applicant had returned from Thailand if he had been under sustained pressure as he said.  At T11, the applicant detailed the recruitment process he had undergone, and he said that the forms had been filled out with his brother and the interview appointment time was even arranged.  But he left Iran before that. 

26. When asked at T12 whether there were any other reasons he did not wish to return to Iran, he said:

    No.  I guess that was all. 

27. There was then a break.  Following the break at T12, the applicant’s representative asked to mention something.  At T13, he said the following:

    Now this is not to provide any evidence to my client – on behalf of my client I don’t want to provide any evidence, nor I want to change anything.  Naturally when my client came to me many months ago he gave me the picture he had through his life.  I indicated most of it through my submission.  Last week I had an interview with my client.  Last week when he attended my office, he clearly indicated that at the age of 15 he actually joined the Baseej and was actually an active member of Baseej even during the 2009 election uprise. 

1. The member responded: 

   Mr Ghanbari, it sounds to me like you’re giving evidence… If this was a new claim, I’m wondering why no further submissions were put in before the Court today. 

2. The representative responded, and the member said, “You can stop there”, to which the representative responded:

   You were right.  That wasn’t my intention.  My intention is that if you could please my ask my client again whether, I mean, he was outside or during the natural justice break I indicated why you – you know, why are you hiding?  And he got his own reason why he’s hiding all of those information.  So perhaps if you could ask him those questions? And then if further submission needed, then I’m willing to provide you a written submission. 

3. The Tribunal member then went on to ask more questions of the applicant.  He said he was a member of the Baseej from around 15 or 16 years old.  When asked at T13 why he had not raised this before, he replied:

   To be honest I was afraid and even now I’m mentioning it I am, - um I thought there might be problems with me even mentioning those even here. 

4. At T14, he was asked what his involvement with the Baseej was, and he said he was an active member.  He said it was not time bound.  At T14, he said:

   When you’re an active member, you are an active member.  There are no time restrictions. 

5. He then went on to say he was a normal member at first, but they had some training and they he was promoted to be an active member when he was 18.  When asked at line 20, “What is your real reason for leaving Iran?”, he responded:

   The real, um, reason is that I really didn’t want to join Sepah and my father’s immense pressure on me to join them, which is not what I wanted to do. 

6. Further questioning followed as to his training for the Baseej and activities with that body, which he professed to find offensive.  He confirmed at T16 that he was never a member of Sepah.  At T16, the Tribunal said:

   I’m having some concerns about the credibility of your evidence. Because what you’re saying now is different from the evidence you gave earlier in the hearing and is also different from what you told the Department of Immigration. 

7. The applicant asked what the contradiction was.  The Tribunal member responded:

   Well, earlier in the hearing I asked you, “Are you a member of the Baseej?”And you said no.  And then later you said, “I was actually involved in Baseej for two or three months before I left Iran.”  Until today, you haven’t mentioned that your father and brothers are in Sepah, and it seems as though your claim is just growing and getting bigger as we go on. 

8. The applicant’s response is on T17.  The gravamen of what he had to say was that he was scared that his father would access any information he disclosed and this would cause him a lot of problems, and he was afraid that to disclose information to the Basij would lead to problems either with the Tribunal or in Australia.  He said that during the break he talked with Mr Ghanbari, who advised him to talk about these matters and that there would not be any problems in Australia.  The Tribunal at T18 asked why, if his father was in the Sepah and his brother, and he was in the Basij, why the Basij would bother him about a satellite dish.  The applicant said that they did not know about his family situation because people do not know about their neighbours generally.  Following the direct evidence of the applicant, the Tribunal asked the representative: 

   Do you have any oral submissions you want to make today, or do you want to put in a written submission?

9. The representative responded:

   No, I think I’ll put them an oral submission if that’s all right with you. 

10. The applicant’s representative then made an oral submission which plainly traversed the contradiction between his client’s claim at the entry interview and then the interview at the Department of Immigration and at the Tribunal.  The representative said:

    there is a strong reason behind it which I will elaborate on now.  His family, including his father and two brothers, are very active members of the Sepah at the Iranian National Broadcasting Corporation.  Naturally they wanted him to follow the cause and become one of them.  As you’ve rightly indicated during the hearing, the Sepah recruitment goes via message and you indicated that during the hearing.

    My client at an age very young, 15, maybe 16, due to his parent – well, his father’s pressure, he joined the Baseej, unwilling, but he had to join them.  Although at that age, no Baseej had been given an assignment or something we would consider as a war crime against humanity being conducted by young Baseejs.  My client was involved in Baseej during the 2000 election, uprise against the Islamic regime and demanded the vote to be recounted. 

    Naturally because he was against the Islamic regime, he didn’t want to be part of the Baseej at the time, but he had no choice. And he clearly indicated that he has no involvement in committing any crime against anyone.  All he could – so that the atrocities committed by Sepah in front of his eyes and that was the reason a strong reason for him to leave Baseej and become a glazier after his military service. 

    Under extreme pressure from his father to join Sepah after his military service, he denied that request and he wanted to be independent.  Of course the pressure was on and my client leaves Iran and leaves behind his father, his siblings and his mother.

11. At T21-22 the representative, having traversed the applicant’s difficulties, said:

    Now, my client is fearful of his life to return to Iran, not only by the Iran authorities, but by his own family.  His father and two brothers in the name of honours may harm him themselves or, at the very best possibility hand him over to the authorities.  So this is the basis of his claim, that impudent political opinion against the Iranian regime and fearful of his own family…

    Finally, the question of you may – well, it’s not may.  I’m 100 per cent sure that you would ask why he didn’t want to tell all those from the beginning.  Simply because he’s young, he didn’t know where those information goes, even today you could see the contradiction.  On Friday afternoon in my office, he said something and then in here he changed it. And when I asked him during the break he said he’s too scared to tell the truth.  That is all I have to say to your Honour.

12. The Tribunal’s decision is at CB172 to 185.  Having set out the law in terms which have not attracted criticism, the Tribunal traversed the matters put by the applicant from time to time.  At paragraph 22 (CB 175) the Tribunal noted that:

    When asked why he left Iran he is conceded as saying his parents were trying to force him to join the Islamic Revolutionary Guard Corps (IRGC) also known as Sepah, and he did not want to.  He said he feared harm from either the Baseej or the Sepah if he returned.

13. The Tribunal traversed the applicant’s statement of claims, in my view fairly, and noted the decision of the delegate.  The Tribunal also noted that the written submissions provided by the applicant’s representative were largely consistent with the information given to the department.  Paragraph 26, CB176, the Tribunal stated:

    It was again stated that the applicant’s parents were forcing him to join Sepah but the applicant had strong moral and personal objections to the work conducted by Sepah.  It was submitted the applicant’s brother Abbas had told him when he was in Indonesia that the Sepah were looking for the applicant.  They intended to harm him because he had ‘fooled around by applying and then refusing to actually join’.  The representative submits the Sepah will want to harm the applicant not only for insulting them but also because they will assume the applicant has provided information to a foreign nation.

14. I note that the decision observes at paragraph 27:

    The applicant said his father is now retired but worked for the Iranian Broadcasting Authority in the political and religious section of that organisation.  His brothers work in the same authority, as electricians.  He said his father’s work was essentially with Sepah and he is forcing him to join.

15. At paragraph 28, the decision records that the Tribunal asked the applicant if he had been a member of the Baseej and he had said no but accepted that he might not have meant to say this.  The applicant’s evidence was that his family organised for him to join the Baseej and he went to the local mosque for meetings.  He was also involved in work on the streets, checking cards for some two to three months before he left Iran.  He was only a normal member.  The Tribunal noted at paragraph 31 CB177:

    After the break the representative submitted his client had given a different account of his level of experience in the Baseej to him a week earlier.

16. The Tribunal noted that no statutory declaration or statement or written submissions concerning new information had been provided prior to the hearing.  The applicant changed his evidence from that given earlier in the hearing and to the department.  The Tribunal went on to refer in more detail to the applicant’s changes in this regard.  At paragraph 33:

    The Tribunal raised its concerns about the applicant’s credibility, given the changes in his evidence and his failure to raise this before.  The applicant said when he was first interviewed they just asked him questions and he gave short answers.  He was afraid to disclose information in case he was sent back to Iran.  He told his representative a week ago.  He feared if he told the Tribunal the truth it would raise more questions and cause more problems for him in this country. 

    Having referred in some detail to country information about the Sepah, the Tribunal considered the refugee criterion at CB180 and following.  At paragraphs 47-49 CB81 the Tribunal observed:

    The Tribunal has considered the new claims raised at the hearing, but finds that they are not credible.  The applicant claims to have been a longterm member of the Baseej but also claimed never to have been paid for such work, to have received limited training and never to have undertaken activities that might be regarded under Australian law as criminal activities.  The Tribunal finds his limited training and no pay are inconsistent with the country information referred to above (see in particular the reference to Golkar’s book) which indicate active members are paid and undergo ongoing training including introductory general training, complementary general training, refresher training and consistency training.  The Tribunal also finds it inconsistent that someone who was a longterm member of the Baseej would be so opposed to joining Sepah, as he would have gone through years of indoctrination, but also years of observation such that it would have been known if he was suitable for Sepah or not.  This would have been apparent not only to the applicant but also to the organisation, which is known for its intelligence work.  The applicant claimed he began to feel differently about Sepah after witnessing atrocities in the 2009 post‑election violence, and that this was when he started fighting with his father about not wanting to join Sepah.  The Tribunal does not accept this. 

    The Tribunal notes the applicant left and re‑entered Iran three times between 2008 and 2012, before leaving in 2013.  If he had fears about his father forcing him to join Sepah or strong views about what the Baseej and Sepah did, he had prior opportunities which he did not take.  The Tribunal notes the applicant contacted his brother from Indonesia and it was then he claims he was told Sepah were looking for him and wanting to know why he had left.  Had the applicant been fleeing Sepah and his family’s pressure to join Sepah, the Tribunal does not accept he would have contacted his brother, Abbas, who he now claims is a long‑term Sepah member.

    The Tribunal has considered the oral submission from Mr Ghanbari, the representative, who claimed the applicant had told him the previous week that he had been a Baseej member since age 16.  The Tribunal gives this submission no weight, as it was not given as evidence and no evidence has been provided post hearing to support the submission (e.g. case notes or a statutory declaration from the representative).

    The Tribunal warned the representative that he was not in a position to give evidence through oral submissions and he did not seek to regularise this by asking to be sworn in as a witness or seeking an opportunity to provide written evidence.  The Tribunal has doubts about the representatives submission, as had the applicant told his representative such important new claims a week prior to the hearing, the representative should have provided pre‑hearing submissions and a statutory declaration from the applicant.

17. The Tribunal went on to find that the applicant had exaggerated and fabricated new claims at the hearing and, in the ultimate, dismissed the application. 

18. Ground 1 of the application is the only ground pressed before the Court. It is:

    The Second Respondent committed jurisdictional error in its treatment of the representative’s information as to the applicant’s new claims:

    a)The Second Respondent did not accept the representative’s explanation to the effect that the applicant had raised new claims with him during the week prior to the hearing on the purported basis that the representative did not give that information to the Second Respondent having been sworn as a witness;

    b)By insisting that that information be given on oath or affirmation, the Second Respondent treated itself as bound by technicalities, legal forms or rules of evidence, contrary to s 420 of the Migration Act 1958;

    c)      Further or alternatively, it was unreasonable for the second respondent not to accept the representative’s explanation on the basis that it was an explanation given otherwise than on oath or affirmation. 

    It should be noted that, pursuant to section 423A(2) of the Act:

    In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.

19. The parties’ oral submissions were essentially an encapsulation of the written submissions.  The complaint made by the applicant goes to the way the evidence was treated.  It was submitted that it was not apparent that the Tribunal would not accept the representative’s assertions unless they were in writing or as sworn evidence.

20. It was put that this failure meant that the ultimate outcome was that the imperative obligation in s 425 of the Act was not fulfilled.  It was submitted that there was no dichotomy between evidence and everything else.  It was submitted that it was simply not apparent why the Tribunal had made the finding that it did at paragraph 49, in rejecting the applicant’s representative’s assertions.

21. Counsel for the first respondent submitted that, in substance, the applicant was merely quibbling with the weight the Tribunal gave to the evidence.  The evidence had changed and this brought into play section 423A(2).  It was for the Tribunal to form a view as to the weight of the evidence.  Counsel referred to Minister for Immigration and Multicultural Affairs v Eshetu (1997) 197 CLR 611 at [628], to the effect, per Gleeson CJ and McHugh J, that provisions such as s 420 “are intended to be facultative, not restrictive.”  Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals.

22. It was submitted that the core issue to be determined was why the claims were raised so late. 

23. For my part, I would find that the Tribunal’s decision to give the submission no weight, as it was not given in evidence and no further evidence had been provided post-hearing, was wrong.  Nonetheless it is easy to see why this error came into existence.  The representative stated in terms at T13 that he did not want to provide evidence on behalf of his client, but then went on in the next breath to say that he had had an interview with the client in the previous week which supported the matters now sought to be advanced.

24. The Tribunal then raised with the representative why no further submissions were put in before that day, and the representative was told to stop.  I accept counsel for the applicant’s submission that what can be made of that is open to question, but it is important to note that the representative said:

    That wasn’t my intention.  My intention is that could you please ask my client again (about the matters he had now raised).

25. That is what the Tribunal actually did at T13-18.  The Tribunal expressly made it clear to the applicant at T16 that the Tribunal member had concerns about the applicant’s credibility because what he was now saying was different from what he had earlier said to the department and, indeed, in the hearing itself. 

26. When it came to final submissions, the bulk of what the representative had to say was plainly submissions per se.  But at T22, he sought to explain the distinction between what the applicant’s earlier claims had been and what they now were as being because he was young and did not know where the information goes.  He went on to repeat that on the Friday afternoon his office, he had said something which he subsequently changed but had eventually told the truth. 

27. It is easy to see how the Tribunal, having informed the representative that he could not give evidence, with the representative confirming that he did not wish to do so, may have fallen into the mistake of overlooking what the applicant’s representative said.  The difficulty, however, that the applicant faces is that he radically changed his claims at the last moment.

28. During his entry interview, his statement of claims, his interview with the delegate and his written submissions he had repeatedly, in effect, sought to minimise any contact with the Baseej and/or the Sepah.  This remained his position at the Tribunal before the break.  After the break in the Tribunal, he came in and said he was an active Baseej member.  This was a fundamental change of position.  In those circumstances it is entirely unsurprising that the Tribunal formed an adverse credit finding against the applicant.  The Tribunal did not go so far as to accuse the representative of lying.  The Tribunal said:

    The Tribunal has doubts about the representatives’ submission, as had the applicant told his representative such important new claims a week prior the hearing, the representative should have provided pre-hearing submissions and a statutory declaration from the applicant. 

29. The Tribunal’s conclusion that this was part of exaggerated and, indeed, fabricated claims at the hearing was plainly in those circumstances one that was open to it.  As a result, and notwithstanding the infelicity of the way in which the Tribunal expressed itself, in my opinion such inadequacies as there are in the reasons do not indicate that the Tribunal failed to fulfil the function allotted to it of giving the applicant an opportunity to be heard and make submissions, and the Tribunal’s decision does not represent jurisdictional error.

30. The application will be dismissed.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  1 August 2019