BTV15 v Minister for Immigration

[2016] FCCA 150

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTV15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 150

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection visa – whether applicant has a satisfactory explanation for filing application out of time – whether the Tribunal erred in making adverse credit findings against the applicant – whether the findings of the Tribunal were illogical or irrational – whether the Tribunal failed to consider an integer of the applicant’s claim – no jurisdictional error identified – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 477

MZABP v Minister for Immigration and Border Protection & Anor [2015] FCA 1391

Applicant: BTV15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2414 of 2015

Judgment of: Judge Street

Hearing date: 1 February 2016

Date of Last Submission: 1 February 2016

Delivered at: Sydney

Delivered on: 1 February 2016

REPRESENTATION

Counsel for the Applicant: Mr J Williams

Counsel for the First Respondent: Mr J Knackstredt

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application for extension of time under s.477 of the Migration Act 1958 is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2414 of 2015

BTV15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) for a Constitutional writ in respect of a decision of the Tribunal made on 22 January 2015. The application for Constitutional relief was filed on 2 September 2015, and accordingly, an extension of time is required under s.477 of the Migration Act 1958.  The principles relating to an extension of time have been summarised by Mortimer J in MZABP v Minister for Immigration and Border Protection & Anor [2015] FCA 1391 at [56]-[70]. In summary, the Court will generally consider whether there is a satisfactory explanation for the delay and secondly whether there is a sufficiently arguable case of jurisdictional error to warrant an extension of time in the interests of the administration of justice.

2. The applicant’s explanation for the delay in the present case was the decision by the applicant to pursue ministerial intervention rather than to pursue an application to this Court.  I regard that explanation as unsatisfactory but accept the proposition that the Court must also take into account the substance of the grounds advanced to determine whether an extension of time is required in the interests of the administration of justice. 

3. The grounds in the present amended application are as follows:

   Ground 1: No Evidence

   20. The adverse credibility findings by the second respondent were affected by jurisdictional error as there was a sufficient lack of probative evidence or logical connection between the second respondent’s assessment of the applicant’s credit and the material upon which it relied to make that assessment.

   Particulars

   Personal Details

   20. At [30], the applicant was born on 30 June 1979, and is a 35 year old single man from IIam, the Islamic Republic of Iran (Iran) and is an ethnic Fali Kurd of the Shia religion. At [5], the applicant is self-employed maintenance worker (plumber).

   Protection Claims

   21. At [29]-[30], the applicant claims that he is a Faili Kurd from IIam, Iran and his family were expelled from Iraq during the war and he is stateless. The applicant fears returning to Iran because he claims he will be detained and fears he will disappear at the hands of the intelligence services.

   Adverse Credibility Finding

   20. The central issue in this matter is whether there was a logical or evidentiary basis for the adverse credibility finding made by the second respondent at [33], that the ‘applicant's evidence regarding his claims to lack credibility’ and that the second respondent ‘did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated his claims in order to be granted a protection visa.’

   The Applicant’s Identity and Statelessness

   20. At [31], the second respondent observed that the applicant ‘provided no copies of any documentation for either him or any of his family members.’

   21. At [34], the second respondent ‘accept[ed]’ that the applicant is a Kurd, but find that he is an Iranian citizen and is therefore not undocumented.’

   22. Further, ‘[g]iven the importance of citizenship to stateless Faili Kurds,’ the second respondent found ‘it implausible that the applicant was both unaware of and failed to make any inquiries as to the antecedents of his parents and grandparents and/or what steps had been taken to establish their eligibility for citizenship.’

   The Background of the Parents

   20. At [35], the second respondent found that ‘[t]here is an inconsistency between the fact that he claimed to fear serious harm based on his statelessness and yet had made absolutely no effort to inform himself of the background of his parents or grandparents, both of which could have had a bearing on his identity.’

   21. Further, the second respondent did not ‘accept the death of his grandfather relieved him of any ability to find out this information as his parents would have known if only he had asked.’

   Country Information

   22. At [36], the second respondent observed that ‘country information indicates that his parents (and as a consequence the applicant) would have been eligible to apply for Iraqi citizenship following the passage of the citizenship law in 2006.

   Iraqi Citizenship

   23. At [37], the second respondent observed that ‘[b]ased on this, the family should have been eligible for, and able to prove Iraqi citizenship if the applicant's parents had been born in Iraq.’ The second respondent did ‘not accept that they have made no attempts to gain Iraqi citizenship because Iraq isn't stable or because the children have been born in Iran.’

   24. Further, ‘[w]hile parts of Iraq are unstable, the law was passed in 2006 and there have been periods of stability when such moves could have been made. Even now the Shi'a south remains stable. The children would also be eligible for citizenship based on their father's nationality and would be able to relocate to Iraq with the parents’

   25. The second respondent found that ‘they have not made any attempt to secure Iraqi nationality because they are Iranian citizens.’

   Post Hearing Submission

   26. At [38], the second respondent observed that ‘[i]t was only in a post-hearing submission (folio 39) that the applicant claimed that he finally asked his parents about the background of his grandparents.’ The second respondent ‘len[t] little weight to his claim that his paternal grandfather was of Iranian background however there was absolutely no documentation available for any grandparent and it was impossible to claim Iranian or Iraqi citizenship as a result.’ By making such a finding, the second respondent conceded the statelessness of the applicant.

   27. At [39], the second respondent was ‘not satisfied that the applicant could have an Iranian paternal grandfather and yet not be aware of this fact given the importance of familial lineage to Faili Kurds in establishing their own identity.’

   28. The second respondent was also ‘not satisfied that the absence of documents for grandparents precludes the family from seeking Iraqi citizenship given the fact that the applicant's parents were born there, country information cited above indicates that this would be reflected in documentation held in Iraq, and there is a process in place for seeking Iraqi citizenship if they were stateless.’

   White and Green Cards

   29. At [40], the second respondent observed that the ‘fact that the applicant has not provided any copies of his family's old green cards or any more recent white cards that could have established the fact that they were registered as refugees raises concerns that this is because they have never had them because they have always been Iranian citizens, or that they had them but were subsequently able to establish their Iranian citizenship and no longer have them or only have them up to a certain date.’

   The Passport

   30. At [41], the second respondent observed that ‘the ease with which the applicant was able to leave Iran through the main airport in Tehran also supports the finding that he had access to a genuine Iranian travel document, rather than a fake passport he claimed he was given. Although it can never be out of the question that people can exit Imam Khomeini airport with a fake document, country information indicates that passport control checks are sophisticated in Iran.’

   Convention Criterion

   31. As a consequence, the second respondent erred at [49] by finding that ‘[h]aving had regard to all the evidence, and the applicant's claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.’

   Complementary Protection

   32. Moreover, the second respondent erred at [50], by finding that [b]ecause I do not accept that the applicant is a stateless or undocumented individual, that he has been denied privileges, that he lives in an unsafe town or would be prosecuted as a voluntary returnee or for seeking asylum I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm

   Ground 2: Denial of Natural Justice and Procedural Fairness

   21. The second respondent failed to make a finding on a substantial, clearly articulated argument relying upon established facts and that failure amounted to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction.

   22. The applicant relies on the reasons particularised at ground one.

   Ground 3: Jurisdictional Error – Misapplication of law or failure to ask the correct question

   23. The second respondent committed jurisdictional error by failing to complete the statutory task required of it to examine and deal with the applicant’s claims, or an integer of his claims.

   24. The applicant relies on the reasons particularised at ground one.

   Ground 4

   Ground 5: Failure to Consider Relevant Considerations

   20. For the reasons identified at ground one, the Tribunal failed to give proper, genuine or realistic consideration to the claims of the applicant or the integers of those claims.

4. The applicant was found to be a Kurd from Iran and to be a citizen of Iran.  The applicant claimed to fear persecution in Iran on the basis that he was a stateless Faili Kurd and that he could not have the basic rights afforded to Iranian citizens.  The applicant also claimed to fear persecution based on the fact that if he were returned, he would be a failed asylum seeker, and he would be persecuted at a result. 

5. The applicant arrived at Christmas Island on 18 July 2012 and applied for protection on 23 November 2012 after the lifting of the bar by the Minister.  In support of that application, the applicant provided a statutory declaration in which he identified his fears if he were forced to return to Iran and identified that he was born in Iran.  The applicant alleged he had a green card but never used it.  The applicant alleged he faced problems because he was undocumented, and that is why he decided to come to Australia.  The applicant also said that he left Iran on an illegal passport. 

6. By letter dated 6 November 2013, the applicant was invited to attend a hearing on 2 December 2014 to give evidence and present arguments.  The applicant attended on that date to give evidence and present arguments.  Prior to the hearing, the applicant’s representative provided submissions dated 20 November 2014 which the applicant advanced alleged errors in relation to his date of birth as determined by the delegate and made reference to the applicant maintaining he did not have any documents to assist in that regard. 

7. Following the hearing on 9 December 2014, further submissions were advanced which were taken into account by the Tribunal as identified in para.38 of the Tribunal’s reasons.  Those post-hearing submissions addressed the issue of the applicant’s alleged undocumented status and advanced the contention that the applicant had provided critical evidence about his life as an undocumented, stateless person in Iran, including his departure from Iran on a false passport. 

8. This is a case where the Tribunal made adverse credibility findings in relation to the applicant.  The Tribunal found the applicant not to be a reliable, credible or truthful witness, and found that the applicant had fabricated his claims in order to be granted a protection visa.  The substance of ground 1 of the amended application was to the effect that there was no logical basis for those adverse credibility findings.  It was a matter for the Tribunal to determine the credit of the applicant, and the Tribunal gave reasons in support of the adverse findings of credit that cannot be said to lack in evidence and intelligible justification.  This is not a case where the applicant had no documentation upon leaving Iran, and the applicant’s own statutory declaration identified his possession of what he alleged was an illegal passport.  The adverse findings made by the Tribunal were open on the material before the Tribunal. 

9. The criticism advanced by the Tribunal in relation to the applicant’s limited knowledge of his parents and grandparents in relation to his identity has a logical foundation in the Tribunal’s reasoning, and it was open to the Tribunal to give little weight to the belated explanation advanced only in post-hearing submissions about the parents’ and grandparents’ background. 

10. Counsel for the applicant contended that there were inconsistent findings in relation to the reasoning of the Tribunal.  I reject that submission.  The adverse findings in relation to the applicant’s credibility and the inconsistencies and fabrication of his claims were based upon the evidence before the Tribunal, and there is nothing illogical or irrational in the reasoning of the Tribunal.  Claim 1 fails to make out any arguable jurisdictional error.

11. In relation to ground 2, this was substantially advanced as a derivative error from the errors alleged in relation to ground 1.  There is no substance in the contention that the Tribunal failed to deal with any articulated argument and no substance in the contention that there was any constructive failure to exercise jurisdiction by the Tribunal, and no substance in the contention of any failure to accord procedural fairness by the Tribunal.  Ground 2 fails to identify any arguable jurisdictional error.

12. In relation to ground 3, this again was advanced as a derivative ground in relation to the first ground.  The Tribunal did not misapply the law or fail to ask the correct questions, nor did the Tribunal fail to complete its statutory task.  It was a matter for the Tribunal to determine whether or not it accepted the applicant’s credit, and the adverse findings by the Tribunal were open.  Ground 3 fails to make out any arguable jurisdictional error.

13. Ground 4 was abandoned by counsel.

14. In relation to ground 5, there was no relevant consideration identified that the Tribunal failed to take into account, and ground 5 was advanced in substance as a derivative alleged error based on ground 1.  There is no substance in the contention that the Tribunal failed to give proper, genuine or realistic consideration to the applicant’s claims or any integer of the applicant’s claims.  Ground 5 fails to identify any arguable jurisdictional error.

15. In these circumstances, I am not satisfied that there is any arguable ground to warrant an extension of time in the interests of the administration of justice. Accordingly, the application for an extension of time under s.477 is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 4 February 2016