CQO23 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 591

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CQO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 591

File number(s):	SYG 1792 of 2023
Judgment of:	JUDGE VASTA
Date of judgment:	24 June 2024
Catchwords:	MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed
Legislation:	Migration Act 1958 (Cth): s 473DD
Division:	Division 2 General Federal Law
Number of paragraphs:	66
Date of last submission/s:	24 June 2024
Date of hearing:	24 June 2024
Place:	Brisbane
Counsel for the Applicant:	The Applicant appearing on his own behalf with the assistance of an interpreter
Counsel for the First Respondent:	Mr Young, Solicitor
Solicitor for the First Respondent:	Mills Oakley Lawyers
Solicitor for the Second Respondent:	submitting appearance, save as to costs’

ORDERS

SYG 1792 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CQO23

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	24 JUNE 2024

THE COURT ORDERS THAT:

1.The time for which the Applicant to file the application be extended to 10 November 2023.

2.The application filed on 10 November 2023 is otherwise dismissed.

3.The Applicant pay the First Respondent’s costs of and incidental to the Application fixed in the sum of $4,189.38.

IT IS NOTED THAT:

A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

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
(Ex tempore)

JUDGE VASTA

1. On 3 October 2023, the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant the Applicant, CQO23, a protection visa.  On 10 November 2023, the Applicant asked this Court to review the application.  When one looks at those two dates, it can be seen that it was more than 35 days after the IAA decision that the Applicant asked this Court to review that decision.  Because of that, this matter is technically an application for the extension of time to make a review application.

2. I will speak of this circumstance later, but I have decided to allow the extension of time. This means that today's application has proceeded as an application on the merits of whether there has been a jurisdictional error made by the IAA.

3. In essence, the Applicant’s claims are these:

4. The Applicant is an Iranian citizen from Tehran. On 16 September 2011, he and his family were celebrating his son's first birthday when their residence was raided by 10 Sepah persons. He said that one of these Sepah persons hit his elderly father, and he (the applicant) pushed that person in response. This resulted in him being immediately arrested, and he spent the next 45 days in detention.

5. During that time, the Applicant claimed that he was continually questioned, he was physically assaulted, and he still has a permanent injury to one of his fingers which was inflicted by one of the Sepah personnel.  He said he was required to attend Court, but he was able to pay a bribe to someone who allowed him to escape whilst he was being transported to the hearing.

6. After his escape from custody, the Applicant said that he travelled to different regions within Iran to avoid detection by the authorities. He said that his residence was raided by the police a number of times. He said that his identification documents were confiscated, and arrest warrants were issued against him. He said that his wife divorced him.

7. He said that he was able to leave Iran using a friend's passport.  He eventually arrived in Australia and discovered that authorities in Iran had been questioning his friends and family since he left. 

8. He said that he has been sentenced for crimes by the Court in Iran, in his absence. He said that he fears that he will be imprisoned or killed at the hands of the Iranian authorities if he returns. He also fears that his family, who hold Australian citizenship and are Christians, would not be able to come to Iran and live with him if he were sent back there.

9. The IAA had the Applicant’s original interview when he first arrived in Australia before them. The IAA also had the Applicant’s affidavit when he made his application for a visa, and the IAA also had the interview that occurred between the delegate and the Applicant before them. The IAA also had a lot of other documents that had been given to them by the Applicant, and they also had a great deal of country information.

10. The IAA had seen that the Applicant had spoken about being one of 11 children and that he was married in 2004 and his first child was born on 16 September 2010. He had said that, although he was married, he was living at his father’s house.

11. He said his family was having a party on his son’s birthday on 16 September 2011. He had spoken about being raided by the Sepah and that he had been incarcerated for 45 days. He said there was a shift soldier there called MZ. MZ had offered to help the Applicant escape if the Applicant paid him 2 million toman. His brother arranged the payment and MZ took off the Applicant’s handcuffs on the way to the Court, enabling the applicant to escape. The Applicant said that he hid for quite some time. The Applicant said that his friend, MRB, had similar facial features to himself. The Applicant used MRB’s passport to leave Iran.

12. The IAA noted that there were discrepancies in what the Applicant had said in the two interviews and the visa application. There were discrepancies in the level of education he claimed he had received. The IAA also noted that when the Applicant first arrived in Australia, he said that he was a Muslim and a Shia. In his affidavit for the visa, he noted that he was of no religion, but then when he was interviewed by the delegate, he said that he was a Muslim.

13. In one of his versions, he said that the party took place, and that the music was not loud, and it would not have been an annoyance to anyone. He was asked if there was alcohol there and he said that there was not. He was asked how long the party had been underway before it was raided by the Sepah. He said that it was approximately an hour to an hour and a half. He said that after his father was struck and he reacted, he could not remember much more of what transpired because of the speed of events and that he was in a state of shock. He said that he suspected that the house was raided because hosting a party in Iran is considered a crime. He said that the authorities had not realised that this was simply a family gathering.

14. The Applicant said, in that version, that once he escaped, he had no phone contact with his wife and child. He said, though, that his mother had informed him that the house had been raided several times.

15. The Applicant had been asked by the delegate whether he had been charged with any offence. He said that he had been charged relating to an altercation with a person in authority.

16. The Applicant told the delegate that his wife had initiated divorce proceedings in his absence while he was outside of Tehran. He admitted that he did not have any corroborating documents regarding the divorce.

17. He reiterated that he had no problems passing through the Iranian departure airport, even though he was not using his own genuine passport.  Even though he used that passport to cross into Turkey and then Malaysia and then Indonesia, he said that he threw the passport in the ocean before he arrived in Australia. 

18. The Applicant was able to provide three warrants and two summonses that he said were issued against him in Iran. 

19. He was also able to provide a final court order issued, in 2018, by the Revolutionary Court of Tehran.  According to that court order, it related to both the Applicant and MZ, who was the person the Applicant said helped him to escape.  The first charge related to contention with law-and-order officers, insulting the position of His Highness the leader, distributing communiqués, deceiving young people against the government, organising mixed parties, setting fire to vehicles of law-and-order officers, and drinking alcohol.

20. According to that order, following his arrest, the applicant denied any wrongdoing, asserting that the night was a family gathering to celebrate his son's birthday.  The applicant claimed to have become upset when a hand was raised against his father and ask that the officers leave the house.  He denied the existence of communiqués in the house.  He denied that he organised parties.  He said that those claims were fabricated and false. The person, MZ, received a million cash bribe, and during the transfer to the court, aided the applicant in escaping. 

21. The order detailed these results. Both the applicant and MZ are considered "Corrupt on Earth" by the Court due to their involvement in these activities. The court decided that the applicant and MZ are sentenced to death, and, for the crimes of drinking alcohol and mixed parties, 10 years of imprisonment.

22. The IAA had quite a few concerns about this document. The most obvious one was the date in the document. The Applicant was adamant that this arrest occurred on 16 September 2011 because it was his son’s first birthday.  However, the applicant described his son being born 10 days earlier.  According to the court order, the arrest occurred on 17 October 2010 when the son would have been approximately six weeks old. The Applicant said that they had the son’s birthday a month later because he was born nearly a month earlier and spent that time in hospital. 

23. The court order also talks of incidents far beyond what the applicant said was simply an altercation with a person in authority.  The Applicant had not mentioned, in any of his three pieces of evidence, that there was any allegation relating to alcohol or anti-government communiques or arson. 

24. The IAA also had doubts that the Applicant, and MZ, could be sentenced for the same crimes. 

25. The IAA noted that the translator of the court order noted that the original text has multiple spelling errors.  The IAA said that this was not insignificant. 

26. The IAA noted that the place of residence as recorded on the warrants and summonses was not the same as the address the Applicant provided on arrival in Australia.  The Applicant had said that he had escaped custody and fled in November 2011.  That date does not align with what is in that court order. 

27. The IAA said that while those documents may broadly support the Applicant's claim, the IAA did not give those documents any weight for the reasons that I have already enumerated.  The IAA said that they had doubts that the Applicant had provided a truthful account about the circumstances that prompted his departure from Iran in 2013.

28. The IAA said that, when considered cumulatively, all of that evidence led the IAA to have doubts about the credibility of the Applicant's central claim.  

29. The IAA said they had some concerns about his claim that his wife divorced him in his absence.  The country information reports that women must obtain permission from their husband to obtain a divorce, and the divorce cannot take place without it going through the Family Court. 

30. The IAA also had concerns about the Applicant’s evidence about leaving Iran.  The country information is that the controls at the main airport in Iran would make it implausible that someone could pass through there using a false passport.  

31. The IAA found other discrepancies from what the Applicant had said in previous statements as to what was now in front of the IAA.  The IAA said that they were not satisfied the Applicant used someone else's passport to leave the country, and that he left the country using his own passport. Having used his own passport, the IAA was satisfied that this meant that he did not have an adverse profile with any of the Iranian authorities.  

32. The IAA was not satisfied that if the applicant returned to Iran, he would face a real chance of harm from the state, or any other person or group in connection with anything that happened prior to his departure.

33. The IAA looked at whether his religion, or the fact that his Australian family were Christians, would be a matter that would cause him serious harm.  The IAA did not find that any of those circumstances would cause the Applicant serious harm. The IAA looked at the fact that the Applicant would return as a failed asylum seeker.  The IAA looked at his social media activity and looked at his military service.  

34. The IAA found that none of those matters would give the Applicant a well-founded fear of persecution within the meaning of the Migration Act 1958 (Cth). Having come to those conclusions, the IAA found that the Applicant did not satisfy the refugee criteria.

35. The IAA then looked at the complimentary protection criteria.  The IAA did not find that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being return to Iran from Australia, there was a real risk that he would suffer significant harm. 

36. For those reasons, the IAA affirmed the decision of the delegate not to grant the Applicant a protection visa. 

37. As I said at the beginning of these reasons, the Applicant filed his application on 10 November 2023.  This was about three days after the deadline had finished for filing such an application.  

38. However, that application was filled out by a barrister. That barrister was a person by the name of Nicholas Charles Poynder. Mr Poynder wrote, in the application, that it was he who miscalculated the date for filing, and that the failure to file within time was not the fault of the Applicant.  It seems to me, notwithstanding that Mr Poynder is not representing the Applicant anymore, the Court should still accept what he said. 

39. Without needing to go into the usual aspects as to why a Court would grant an application for leave, it is sufficient for the Court to simply say that in this case, the Court will extend time.  

40. This matter was supposed to come before me on 22 May 2024.  Because there was some doubt as to whether Mr Poynder was still appearing, I mentioned the matter on 17 May 2024. On that date, it was ascertained that Mr Poynder would not be appearing any further in the matter.  I adjourned the matter for five weeks to today, 24 June, to give the Applicant an opportunity to get himself ready for the hearing, considering that he is in Immigration detention.  

41. The Applicant has appeared before me today unrepresented but aided by an interpreter in the Farsi language. The Applicant still maintained reliance upon the two grounds of application that were formulated by Mr Poynder.  The first ground was that:

    1.The decision of the second respondent (Authority) was, in part, based on adverse credibility findings on critical issues that were arbitrary, capricious, irrational, and lacking in evidentiary foundation.

42. In other words, the ground is claiming that the credibility findings on critical issues were simply not open on the evidence before the IAA.  The particulars of this ground were that there was a central narrative for the claim for protection.  That central narrative was that the Applicant was at his father's house for his son's first birthday on 16 September 2011.  The house was then raided by Iranian authorities and that the Applicant pushed an officer.  The Applicant was then arrested, detained for 45 days and tortured.  He escaped because he paid a bribe to a police officer. 

43. The Applicant has submitted that there were four matters that the IAA took into account in rejecting the central narrative.  The first was that the Applicant had said that the gathering took place on 16 September 2011, exactly on his son's birthday.  The IAA had said, because the son was born on 6 September 2010, it meant that the party could not have been exactly on the son's birthday.  The Applicant says that there was no basis for the claim that the Applicant had said that the gathering took place exactly on his son's birthday.

44. The second thing is that it was claimed by the Authority that the Applicant had said, in his interview with the delegate, that he could not remember the address of his father's home.  Yet, elsewhere in the written documents, he had provided his father's address.  

45. The third claim was that the Authority said that the Applicant had asserted that the music at the gathering was not loud, but during his arrival interview, he said that the music was loud.  

46. Fourthly, that the IAA had said that, in the statutory declaration, the Applicant said the authorities raided the home at 11 pm, but in his interview, he said that the gathering had been going for one to one and a half hours, which meant that it would have started at 9.30 to 10 pm, which was rather unusual for a child’s birthday party.

47. With regards to these four aspects, the Applicant says that each of those aspects is illogical, as well as not being material, in deciding whether the central narrative had taken place.

48. The four aspects are like four strands of rope; that one strand in and of itself may not be able to carry a weight, but the four strands working together can do so. 

49. The fact that the Applicant had said that it was a birthday party that occurred in September 2011 was significant.  The material that the Applicant put before the IAA suggested a date 11 months prior to September 2011.  That put the issue of when the central narrative occurred in doubt.  

50. The Applicant had said that he had lived at his father's house most of his life, yet he could not recall that address.  The fact that those written documents had the address, which was different to that in the arrest warrants and court order, was significant.

51. Regarding the description of the level of music being loud, the Applicant had given two different descriptions of the level of music.  In his arrival interview and the delegate interview, he said that the music was not loud. In his visa application statement, he said that the music was loud. The Tribunal said, at paragraph 48, that:

    …While what may be considered ‘loud’ is subjective, I place weight on the fact that it is the applicant who used this term in both the arrival and TPV interviews…

52. The fact that if a party to celebrate the birthday of a child begins at either 9.30 pm or 10 pm would be something that is objectively rather unusual. 

53. It may be said that each of these four matters may, by themselves, not be able to discredit the central narrative, but if all four are looked at together, they give each other a strength that they do not have if looked at singularly. The adverse credibility findings did not lack an evidentiary foundation and were open on the evidence.  

54. For these reasons, it seems to me that ground 1 of the application fails.  

55. Ground 2 was that:

    2.The finding by the Authority, at [48], that “When considered cumulatively, the above evidence leads me to have doubts about the credibility of the applicant’s central claim in this application” was irrational.

56. The Applicant submits that this finding simply could not have been made.  Having gone through the reasoning of the IAA in quite some detail, I am of the view that the finding of the authority was open on the evidence. 

1. Ground number 2, therefore also fails. 

2. The Applicant said to me today that there were many mentions made by the IAA that he, the Applicant, had given an incorrect time or an incorrect date.  

3. He said to me that he was a human being, and that he could not recall precise dates. He said the events he described did happen. He asked, rhetorically, how can someone who is not a computer be precise after 10 or more years?  He said to me that he is not able to defend himself or to know what he should really say in a Court. 

4. He said to me that he had a younger brother who was executed by the government last year, and that if he returns, he too could be executed. I note that that information about the brother was put before the IAA. The IAA noted that there was very little corroborating material, and they did not consider that this was credible personal information. The IAA declined to consider that matter because it did not meet the threshold under s 473DD. No challenge was made to that ruling.

5. The Applicant made submissions to me about the power of the Sepah, and he said that if he didn't have a problem in Iran, he wouldn't have left there in the first place and left a child behind. 

6. While all those things are matters that do lead the Court to some sympathy, none of it illustrates any jurisdictional error made by the IAA. The Applicant said to me that he worries about what will happen in the future to his children.  He said to me that he had said to the department that he was a Muslim, but he has since heard the call of Christianity.  

7. He spoke at quite some length about how Christianity had changed his life. All of that was wonderful to hear as when any person embraces a religion, it can only be for the betterment of themselves and everyone around them. 

8. However, it does nothing to illustrate to me that there has been a jurisdictional error made by the IAA. 

9. Having looked at the decision of the IAA and all the surrounding evidence, I have not been able to ascertain that there has been any jurisdictional error committed by the IAA. 

10. Therefore, I dismiss the application with costs in the sum of, $4,189.38.

I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Vasta.

Associate:

Dated:       4 July 2024