BXD22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 1019
Federal Circuit and Family Court of Australia
(DIVISION 2)
BXD22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1019
File number(s): MLG 1281 of 2022 Judgment of: JUDGE SYMONS Date of judgment: 7 December 2022 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – refusal to grant the applicant a Protection (Class XZ) visa – allegation of bias - decision not affected by jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 5J, 36, 424AA, 425 Cases cited: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 Division: Division 2 General Federal Law Number of paragraphs: 59 Date of last submission/s: 23 November 2022 Date of hearing: 23 November 2022 Place: Melbourne Applicant: In Person Solicitor for the First Respondent: Australian Government Solicitor ORDERS
MLG 1281 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BXD22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE SYMONS
DATE OF ORDER:
7 DECEMBER 2022
THE COURT ORDERS THAT:
1.The application filed on 31 May 2022 be dismissed.
2.The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,400.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS:
INTRODUCTION AND BACKGROUND
By an application filed on 31 May 2022, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 5 May 2022. The Tribunal affirmed a decision of a delegate of the first respondent (“the Minister”) not to grant the applicant a Protection (Class XA) visa (“the Protection visa”). The Minister opposes the application and contends, generally, that the decision under review is not affected by jurisdictional error. The Tribunal enters a submitting appearance and has not participated in the proceeding.
The applicant is a citizen of Iraq who arrived in Australia in August 2010 as the holder of a Refugee (Class XB) (subclass 200) visa (“the Refugee visa”).
On 5 June 2018 the applicant’s Refugee visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) as a result of the applicant’s convictions for a number of offences committed between 2011 and 2018 (CB 26 [4]). The applicant made an unsuccessful application for revocation of the cancellation of the Refugee visa. On 31 January 2020, the General Division of the Tribunal affirmed the decision on review, with the result that the Refugee visa remained cancelled (CB 23-76).
On 8 May 2020, the applicant applied for the Protection visa (CB 79-106). The applicant claimed that he and his family had suffered persecution as Sunni Muslims and had fled to Turkey where they were registered as refugees, before settling in Adelaide in 2010.
The applicant apprehended that he would be killed if he returned to Iraq given that he had originally left the country to avoid harm at the hands of Shi’a Muslims. The applicant also feared that he would be harmed by his ex-wife’s family as they did not approve of the couple’s marriage. The applicant claimed that the ex-wife’s family had stabbed him in the hand and shot him prior to his fleeing to Turkey and had shot him twice in the leg when he returned to visit Iraq in 2015.
The applicant claimed that the Iraqi authorities would not protect him and would instead seek to harm him because of his bad behaviour in Australia.
On 19 May 2020, the applicant was interviewed in relation to his Protection visa application (CB 116).
On 28 May 2020, the delegate refused to grant the applicant the Protection visa (CB 119- 135). The delegate found that the applicant’s narrative at the Protection visa interview of the threats and harm arising from his marriage was inconsistent with the narrative provided to the Tribunal as part of the review of the cancellation of the Refugee visa, the narrative he had provided when he was interviewed by the UNHCR in Turkey and the narrative he provided when interviewed by Australian authorities in 2008 in Turkey (CB 126).
The delegate did not find it credible that the applicant had been attacked by his ex-wife’s family in 2015, nor that he was of adverse interest to her family. The delegate also found that the applicant had family support in Iraq, especially extended family in Baghdad, but did not want to disclose this information as it undermined his claims not to have family support in Iraq. The delegate accepted that the applicant was a Sunni Muslim but rejected his claim to fear harm for this reason based largely on its application of country information.
On 30 November 2021 the applicant was re-notified of the delegate’s decision in circumstances where the Department accepted that the original notification had been sent to the applicant’s previous residential address instead of the immigration detention centre at Christmas Island where he was by this stage accommodated.
On 7 December 2021, the applicant applied to the Tribunal for review of the delegate’s decision (CB 154).
On 14 February 2022, the Tribunal wrote to the applicant inviting him to attend a hearing on 23 February 2022 via video conference (CB 190).
On 18 February 2022, the applicant appointed a representative and at the request of the representative, the hearing was rescheduled to 2 March 2022 (CB 211-214).
On 1 March 2022, the applicant’s representative sent the Tribunal a draft (unsigned) statutory declaration of the applicant which the applicant intended to adopt at the hearing (CB 229-233). The statutory declaration was responsive to findings made by the delegate but also introduced a new claim that the applicant feared harm from the family of his close friend, Mr H, who blamed the applicant for Mr H’s death. The applicant claimed that Mr H had recently been killed and that his family believed this was an act of revenge carried out by members of the applicant’s ex-wife’s family because of Mr H’s connection to the applicant.
On 2 March 2022, the applicant’s representative submitted to the Tribunal a letter from the applicant’s psychologist dated 15 January 2020 (CB 237).
On 2 March 2022, the applicant attended the Tribunal hearing via video with the assistance of his representative and an interpreter in the English and Arabic languages (CB 256-257).
On 18 March 2022, the applicant’s representative provided to the Tribunal post-hearing submissions (CB 274-284) and a statement by the applicant attaching photographs said to depict injuries sustained during the attacks by his ex-wife’s family (CB 285-289).
On 5 May 2022, the Tribunal affirmed the decision not to grant the applicant a Protection visa (CB 297-325).
the decision of the tribunal
After identifying the criteria for a protection visa, the Tribunal recorded the applicant’s claims and evidence by reproducing in full the applicant’s responses contained in the Protection visa application form, the draft statutory declaration and the applicant’s post-hearing statement (CB 299 – 304). The Tribunal also set out under the heading “AAT Hearing” what appeared to be a combination of part of the transcript of the hearing and the Tribunal’s summary of the evidence given by the applicant during the hearing and in particular, the responses given by the applicant to matters put to him under s 424AA of the Act (CB 304-315).
The Tribunal commenced its consideration of the applicant’s claims by discussing the evidence directed at the applicant’s mental health. The Tribunal took the psychologist’s letter into account but gave it little weight as it contained a diagnosis based on the applicant’s self-report of traumatic events in Iraq which the Tribunal had found to be fabricated. The Tribunal was also concerned that the psychologist had not seen the applicant in a clinical capacity since 2018. The Tribunal also noted that there was no medical evidence to support the applicant’s claim to suffer from a poor memory. However, the Tribunal acknowledged that the events described by the applicant had occurred years ago and noted that it had endeavoured to take this consideration into account (CB 316 [180]-[185]).
The Tribunal did not find the applicant to be a reliable, credible or truthful witness and found that he had fabricated many of his claims in order to be granted a protection visa (CB 316 [187]).
The Tribunal did not accept that the applicant was a Sunni Muslim or that he would be persecuted by the Shi’a majority government. This finding reflected the result of the Tribunal’s exploration of the issue during the hearing which yielded information including that: (i) the applicant’s mother’s grave was in Najaf which the Tribunal considered to be perhaps the holiest site in Shi’a Islam, and the applicant admitted his mother was in fact Shi’a; (ii) the applicant’s sister was married to her Shi’a cousin and both she and the applicant’s brother lived in Najaf, which supported a finding that the applicant’s siblings were also Shi’a; and (iii) when the applicant had travelled to Iraq in 2015, he had stayed in Najaf for three days, visited religious sites, and likely caught up with his siblings; and although the applicant claimed that his Iraqi ID card proved that he was Sunni, the Tribunal had no copy of the ID card and nor was one provided to it by the applicant (CB 317 [188]-[192]).
Given the above finding concerning the applicant’s religion, the Tribunal found that the marriage between himself and his ex-wife was not a mixed marriage as claimed and that the basis for any religious objection did not exist. The Tribunal found for this reason that the applicant would never have been of interest to, let alone assaulted by, his ex-wife’s family or the tribe to which they belonged. The Tribunal also found that the applicant’s account of the time he was visited by the ex-wife’s family and the actions they took prior to him leaving Iraq was inconsistent and supplied a further reason to doubt the veracity of his claims (CB 318 [196]-[199]).
The Tribunal found that the applicant’s voluntary return trip to Iraq in 2015 was inconsistent with someone who claimed to be in fear of his life from his ex-wife’s family and tribe. The Tribunal rejected the applicant’s explanation that it had been a long time since he had been attacked and he thought that his ex-wife’s family knew that the couple had divorced, as implausible. The Tribunal did not accept that the applicant had been attacked and shot by the ex-wife’s family members as claimed, including because the applicant had provided no media report of an incident that had allegedly occurred in a shopping district in Baghdad and gave no weight to the photos produced by the applicant that were said to depict a bullet wound to his leg as they were too indistinct to verify and were not supported by any medical evidence (CB 318-319 [200]-[203]).
As a result of the Tribunal’s finding concerning his interest to the ex-wife’s family, it found that his friend, Mr H, was never killed by the ex-family-in-law and that the family of Mr H did not blame the applicant for his death (CB 319 [205]).
The Tribunal did not accept that the applicant had no support in Iraq. This was because the applicant had visited his siblings in Iraq in 2015 and had extended family in Baghdad with whom he had stayed in the past. The Tribunal was satisfied that the applicant would be provided with accommodation on return and that he would be able to compete for work in Iraq commensurate with his qualifications. The Tribunal found that the applicant would be able to leverage his network to smooth his re-introduction into Iraqi society and that any problems with his readjustment would not meet the threshold of serious harm for the purpose of s 5J(6) of the Act (CB 319 [210]).
The Tribunal did not accept the applicant’s claim that he would be harmed because he had committed family violence against his ex-wife. The Tribunal found that given the offence had occurred in 2011, it lacked credibility that had the applicant genuinely believed that he would be harmed because of his crime, that he would have returned to Iraq voluntarily in 2015 (CB 320 [212]-[213]).
The Tribunal found that the applicant did not have a well-founded fear of persecution for any s 5J(1)(a) reason or any other reason, now or in the reasonably foreseeable future and having regard to its anterior factual findings, found that the applicant did not satisfy the complementary protection criterion in s 36(2)(aa) of the Act also (CB 321 [214]-[216]).
proceedings in this court
The application for judicial review filed on 25 October 2018 identifies the following (unparticularised) grounds:
1.The decision of the Tribunal:
a) is affected by an error of law; and
b) denied the applicant procedural fairness.
2.I have made an application for assistance through Victoria Legal Aid and am waiting for a decision.
On 23 June 2022, a Registrar of this Court made orders to progress the matter to final hearing. These orders included that the applicant, at least 28 days before the hearing, file and serve any amended application with proper particulars of the grounds of the application, any additional evidence on which the applicant sought to rely, and written submissions. The applicant did not file any material responsive to these orders or indeed, any material beyond the application and original affidavit that had attached a copy of the decision of the Tribunal.
On 7 July 2022 and 5 August 2022, the Minister filed a court book and a supplementary court book respectively. The supplementary court book contained an extract of notes taken during an interview between the Department of Home Affairs and the applicant in Turkey, a detention client interview – Part C, and the applicant’s AUSTRAC report.
The Minister filed written submissions dealing with the pleaded grounds of review on 2 November 2022
The matter came before me for final hearing on 22 November 2022.
On that day the applicant appeared unrepresented and was assisted by an interpreter in the Arabic (Standard) language. The Minister was represented by solicitor advocate Ms Stone. The hearing was conducted by Microsoft Teams given that the applicant was accommodated at the time of the hearing at the Christmas Island Immigration Detention Centre.
At the outset I confirmed with the applicant that he had received and had a copy with him of the court book and of the Minister’s written submissions. I then, in the context of inviting the applicant to address the Court on his grounds of review, explained to him the limits of jurisdictional review and jurisdictional error and identified the following categories of mistake that might engage the Court’s review jurisdiction:
(a)where the decision-maker identifies the wrong issue or asks the wrong question;
(b)where the decision-maker ignores relevant material;
(c)where the decision-maker relies on irrelevant material;
(d)where the decision-maker fails to follow mandatory procedures;
(e)where the decision-maker shows actual or apprehended bias; and
(f)where the decision is illogical, irrational or unreasonable.
Applicant’s argument
The applicant was invited to tell the Court what (in his view) was wrong with the decision of the Tribunal.
The applicant identified the following five concerns.
The first was that the Tribunal had not respected his Sunni Muslim religion. The applicant explained that he had submitted evidence of his citizenship (and religion) but that this had not been accepted by the Tribunal as “solid evidence”.
The applicant also raised as a concern that the Tribunal had inferred from the fact that the applicant was wearing a particular ring that this was evidence that the applicant was a Shi’a Muslim. The applicant told the Court that this type of ring could be worn by a Sunni Muslim also.
The second matter raised by the applicant involved a challenge to the Tribunal’s finding that the applicant would not have returned voluntarily to Iraq in 2015 had he genuinely feared for his safety. The applicant was critical of the Tribunal’s rejection of his claim to have sustained a bullet wound to his leg and its failure to accept his evidence of the scar on his leg.
The third matter raised by the applicant involved the submission that the Tribunal member had not taken the applicant or his case seriously and had dehumanised him and rejected his claim that his life was in danger. Allied to this concern, the applicant was critical of the conduct of the hearing insofar as the Tribunal had insisted that the applicant keep going even when he raised the fact that he (the applicant) was bleeding from his finger. The applicant also told the Court that the Tribunal member had laughed at him during the hearing.
The fourth matter raised by the applicant, which he described as the “most important point”, was that the level of knowledge possessed by the Tribunal member about Iraq made him suspect that the Tribunal member had once been in the Iraq military and that he now had something against the country, which view infected the approach taken to the applicant’s claims. The applicant told the Court that the Tribunal member had “hated me before seeing me”.
The fifth matter raised by the applicant was that the Tribunal had not believed the explanations offered by him as to why he had chosen to land in Najaf and not in Baghdad when he returned to Iraq in 2015.
Minister’s submissions
Ms Stone, on behalf of the Minister, addressed each of the matters raised by the applicant. Starting with the complaint about the Tribunal’s rejection of his claim to be a Sunni Muslim, the Minister submitted that the Tribunal’s decision record exposed a cogent basis for the Tribunal’s findings that the applicant was not a Sunni Muslim as claimed. As far as the Tribunal member had raised the issue of the ring worn by the applicant as suggesting the applicant was in fact a Shi’a Muslim, the Minister noted that the Tribunal’s observations about the ring had not made their way into the Tribunal’s dispositive reasoning. The Minister submitted that to the extent it had been suggested that the Tribunal had not respected the applicant’s religion, the fact that the Tribunal had questioned the applicant about this aspect of his claim reflected only that the Tribunal member was complying with the obligation to afford the applicant procedural fairness. The Minister otherwise noted that as far as evidence of citizenship was concerned, the Tribunal had noted (as was the case) that the applicant had not produced his ID card so that this was not a matter that the Tribunal could place weight on as supporting the applicant’s claim based on religion.
The Minister submitted that the Tribunal’s rejection of the applicant’s claim to have been wounded in Iraq reflected findings that that were reasonably open to it to make. The Minister noted that the Tribunal had considered, but gave no weight to, the photos produced by the applicant due to both the quality of the images and the lack of medical evidence corroborating the injury.
The Minister’s response to the suggestion by the applicant that the Tribunal member had not taken his case seriously was to point to the Tribunal hearing record which indicated that the hearing had commenced at 1.08 pm and concluded at 5.00 pm. The Minister submitted that this was evidence of a lengthy hearing which in turn suggested that the Tribunal was interested in properly exploring and understanding the applicant’s claims. The Minister submitted that the comprehensive written statement produced by the Tribunal also indicated that the Tribunal had taken the applicant and his case seriously.
Insofar as the applicant’s concerns should be understood as involving an allegation of actual or apprehended bias the Minister submitted that the applicant had produced no evidence to support such a claim. The Minister accepted that it was apparent from the Tribunal’s questioning and reasons that the Tribunal member had knowledge of Islam and of the Middle East. However, there was no evidence that the Tribunal member had ever worked in Iraq or had a particular, fixed, disposition towards the country. There was no evidence before the Court that the Tribunal member had laughed at the applicant’s claims.
By way of response to the applicant’s complaint that the Tribunal member had dismissed his request for a break when his finger was bleeding the Minister referred to paragraph [186] of the Tribunal’s written statement which recorded the following:
[186]The applicant asked for a break shortly after the hearing commenced because he claimed he was bleeding from where he bit his finger(nail) and at one point the adviser requested a break because he felt the applicant was agitated and his answers were out of context to the questions asked. Neither was granted at the time they were requested because the bite was minor and the member disagreed with the adviser’s assessment, there was no indication the applicant was unable to continue and it was in the middle of a line of questioning. A break was granted shorty after it was requested at a less disruptive spot in the proceedings
As far as the applicant had given explanations as to why he had chosen to land in Najaf and not in Baghdad, the Minister submitted that the Tribunal had recorded the explanation offered by the applicant (refer CB 312 [158]) but that the acceptance or rejection of this explanation was not ultimately dispositive of any issue arising in the applicant’s review. Instead, the Tribunal had placed emphasis on the decision by the applicant to “delay” his travel to Baghdad, with the Tribunal noting that he had spent his time in Najaf visiting Shi’a religious sites (refer CB 317 [191]).
RESOLUTION
Dealing sequentially with the matters raised by the applicant I consider first that there is no merit in the applicant’s argument that the Tribunal did not respect his Sunni religion and had erred by finding that he was a Shi’a and not a Sunni as he had claimed.
The Tribunal’s finding that the applicant was not a Sunni Muslim reflected a combination of matters that were logically probative of this conclusion. The matters, such as that the applicant’s mother was a Shi’a and that he had spent time visiting Shi’a religious sites, were exposed during the Tribunal’s robust questioning of the applicant. While the applicant might feel a sense of indignation that his claims were subject to a level of scrutiny by the Tribunal, including in circumstances where the delegate had accepted that the applicant was a Sunni, I do not consider that in the questioning process the Tribunal demonstrated a lack for respect for the applicant’s religion. Instead, the Tribunal was undertaking its inquisitorial function and in a manner that would have left the applicant in no doubt that his claim to be a Sunni was a matter about which the Tribunal had serious reservations. The Tribunal was obliged to put the applicant on notice of the dispositive issues so as to comply with its obligation under s 425 of the Act to identify for the applicant the issues arising in the review.
As to the applicant’s challenge to the Tribunal’s finding that his voluntary return to Iraq in 2015 undermined his protection claims, I consider that it was open to the Tribunal to take this matter into account as a matter that bore rationally on the legitimacy of the applicant’s subjective fear of harm. It was also open to the Tribunal to reject the applicant’s claims to have sustained an injury to his leg during this visit. The Tribunal rejected this claim for a number of reasons including the lack of any media article documenting the event and the inadequacy of the photos produced by the applicant that were uncorroborated by any medical evidence. These findings were open to the Tribunal.
As to the applicant’s submission that the Tribunal member had not taken the applicant or his case seriously and had dehumanised him and rejected his claim that his life was in danger, I cannot agree. I can see no evidence in the transcript produced in the decision record and the detailed record of the questions asked and answers provided by the applicant, that the Tribunal was doing anything other than comprehensively seeking to understand and then investigate the claims articulated by the applicant. While it is certainly the case that the Tribunal identified a range of concerns with the applicant’s claims and identified these for the applicant, this does not indicate a lack of interest.
The Tribunal hearing was lengthy and although the applicant’s request to take a break because his finger was bleeding was initially denied, it would appear from the Tribunal’s written statement that at a later stage of the hearing, the applicant was given a short break to clean his finger (CB 311 [151]). There is no suggestion from the decision record that the applicant was inhibited in his ability to provide responsive answers to questions asked by the Tribunal as a result of the rejection of his first request for a break to attend to his finger, or through the conduct more generally of the hearing.
As to the implicit suggestion made by the applicant that the Tribunal had prejudged his application or given the appearance that he might do so, I have approached this issue on the basis that it involves an allegation of bias. There is no evidence that the Tribunal was actually biased in its disposition of the applicant’s review. As far as apprehended bias is concerned the test is whether a properly informed fair-minded lay observer might conclude that the Tribunal might not bring an impartial mind to the resolution of the issues to be decided: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [29]-[31].
The authorities recognise that there is a two-step process where there must be:
(a)an identification of what it has been said might lead to a decision-maker to decide a case other than on its legal and factual merits; and
(b)an articulation of the logical connection between the matter and the feared deviation.
Here, the applicant contends that the Tribunal’s former military connection to Iraq was the matter that might lead the Tribunal to decide his case other than on its legal and factual merits. However, there is no evidence before the Court that the Tribunal member did in fact have any connection to Iraq or maintain any views about the country that might have predisposed him against the applicant’s case. It is true that the Tribunal did inform the applicant that he had lived in Middle Eastern countries and was “quite familiar” with cultures (CB 308 [105]), but the communication and application of this knowledge was not indicative of a closed mind and was applied by the Tribunal to test the applicant’s claims and to enhance the fairness of the administrative process. There is no indication from the (limited) transcript or the Tribunal’s record of what transpired at the hearing that the Tribunal was fixed in its attitude to the applicant’s claims such as to indicate a lack of preparedness to alter them.
Turning then to the final matter raised by the applicant being that the Tribunal had not believed the explanations offered by him as to why he had chosen to land in Najaf and not in Baghdad when he returned to Iraq in 2015, I am not persuaded that the Tribunal’s approach discloses jurisdictional error. The Tribunal recorded the explanation provided by the applicant (that there were dangers associated with entry to Baghdad by plane). However, the Tribunal’s concerns were ultimately directed not at the place of entry to Iraq per se, but the fact that the applicant had delayed his travel to Baghdad by a number of days and had spent time with family members and visiting Shi’a religious sites in Najaf.
CONCLUSION
For the reasons set out above I will make orders that the applicant’s application be dismissed and that the applicant pay the Minister’s costs in a fixed amount.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons . Associate:
Dated: 7 December 2022
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