CVO16 v Minister for Immigration

[2018] FCCA 855

FEDERAL CIRCUIT COURT OF AUSTRALIA

CVO16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 855

Catchwords:
MIGRATION – Refugee application – citizen of Iran – credibility findings – whether open to the Tribunal.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Minister for Immigration v SZMDS (2010) 240 CLR 611

Applicant: CVO16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 320 of 2016

Judgment of: Judge Young

Hearing date: 2 March 2018

Date of Last Submission: 2 March 2018

Delivered at: Adelaide

Delivered on: 2 March 2018

REPRESENTATION

Counsel for the Applicant: Ms Stanley

Solicitors for the Applicant: MSM Legal

Counsel for the Respondent: Mr O’Leary

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application filed 26 September 2016 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 320 of 2016

CVO16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

(As corrected)

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

2. This is an application for judicial review of a decision of the AAT made on 29 August 2016 affirming a decision of the Minister’s delegate made on 21 April 2015 to refuse the applicant a protection visa.  The applicant is a citizen of Iran.  He left Iran legally in March 2013 and arrived in Australia on 4 May 2013.  The applicant was an employee in Iran from March 2011 to March 2013 of a large public company with the acronym PAYAM.  That company was beset with problems of corruption and financial impropriety over a long period.

3. The company was the subject of a public scandal, reports in the media, demonstrations by workers demonstrating over non-payment of wages and, it would appear, also to legal process.  The applicant was employed as a financial officer.  He is a qualified accountant.  He said that he became aware of financial impropriety by the Chief Executive Officer of the company, a man named Ezzati, and the applicant’s supervisor, I will call him, a man named Bazzaz, and illegalities involving oil deals.

4. The applicant said that he had given evidence in a trial, or a judicial process, concerning Ezzati, and as far as I interpret the Tribunal’s reasons, the evidence from the applicant was that the charges, or the complaint against Ezzati, involved corruption.  The applicant said in evidence that the judge in that trial had found him to be an unhelpful witness and he was not required further for the purpose of that trial.  The applicant said that from that time there was hostility towards him from Ezzati.  The applicant said that Ezzati was connected to a powerful political figure in Iran called Rezaee who was a presidential candidate in the elections held in Iran in June 2013.

5. The Tribunal discounted these claims by the applicant and found that they were embellished and inconsistent.  For example, noting that despite Ezzati’s claimed hostility following the trial, the applicant continued to be employed at PAYAM until his departure for Australia in March 2013.  The applicant said in evidence that he had not been paid by his employer, PAYAM, from September 2012 to March 2013.  He said that, at the end of that period, he had a “massive” argument with Bazzaz and Bazzaz threatened him. 

6. The applicant later said he heard that Bazzaz had reported him to Ezzati and he, the applicant, did not return to work.  He said that he was later told by a person who worked in Ezzati’s office, a Delqan, that Ezzati was angry with the applicant and that he, the applicant, should leave.  The applicant said that he was later told by his mother that three men in suits had come to the family home looking for the applicant and that they returned four days later.  He said that his father had threatened to report them to the police and they said to the applicant’s father that the applicant should “turn himself in”.

7. The Tribunal noted that there was no claim that the visit of the three men in suits had been reported to the police.  The applicant said in evidence that he believed the three men worked for Ezzati.  He said that he, the applicant, called Delqan again by telephone who told him that his life was in danger because of what he, the applicant, knew and that Ezzati and Rezaee were afraid that his knowledge would jeopardise Rezaee’s prospects of election in the coming June 2013 election.

8. The applicant said he then decided to flee Iran. 

9. Coming to the grounds of review, an order was made in 2016 for the filing of an amended application for review on 1 March, that is, the day before yesterday.  An amended application was filed.  There were consent orders on 16 February 2018 for the late filing of submissions.  The applicant’s submissions were filed on 21 February 2018 and the respondent’s submissions filed on 27 February 2018.  The applicant’s submissions addressed the grounds of review, in substance, as set out in the original application.

10. The respondent did not object to amendment of the original grounds in conformity with the proposed amended application filed on 1 March.  However, as was made clear in discussion between the Court and counsel, the real grounds are as set out in the applicant’s outline of submissions and it was proposed, I think, by counsel for the Minister in substance, that he would be content to treat the applicant’s outline of submissions as the substantive grounds of review.  Counsel for the applicant was content to proceed in that way and I proceeded on that basis.

11. It is acknowledged that that is a potentially confusing course but I think it was the best one in the circumstances.  I will mark the outline of submissions of the applicant as exhibit 1 in case they become important later on.  Turning to the particular grounds, ground 1 was in two parts.  The first part was an assertion by the applicant that the Tribunal failed to take into relevant considerations by ignoring a number of factors.  These were said to be the applicant’s employment in Iran, his relatively high level of education, the fact that he had family in Iran and, thirdly, that Delqan had advised him to flee for his life.

12. It was submitted that in these circumstances, the applicant had no reason to leave Iran other than to flee because of a fear of persecution or a fear of harm.  I should note that the factual basis of that submission might be doubted, at least in one aspect, because it was clear from the applicant’s evidence that his contract of employment was due to expire in March 2013 with PAYAM, and indeed, that he had been unpaid for six months before his departure for Australia.  The respondent in reply to that submission said that there were no mandatory considerations other than those that might be required by the legislative or statutory framework for the decision-maker.

13. That is, in broad terms, undoubtedly true, but counsel for the Minister seemed to concede that there may well be relevant considerations arising, given the claims made by an applicant in a particular case. It might be necessary to consider the integers of the claim raised by the applicant.  As far as I understood the submissions from counsel for the Minister that was accepted.  The Tribunal approached this issue by assessing the applicant’s claims and, of particular relevance to this ground, the claim of imputed political opinion adverse to the regime in Iran.

14. The Tribunal found that the applicant did not, in fact, have confidential information likely to threaten Ezzati or his political patron, Rezaee, and in making that finding the Tribunal took into account the fact that Ezzati had apparently been subjected to a trial in relation to corruption,  that there was a public scandal in Iran involving PAYAM and associated allegations of corruption and financial impropriety and also that there was no evidence that Ezzati, in particular, remained in position of power or influence, and that Rezaee had been defeated in the June 2013 presidential election in Iran.

15. The Tribunal did not accept, in those circumstances, that Ezzati or Rezaee had a motive to harm the applicant and, consequently, found that the applicant’s professed fear was not well-founded.  I am not satisfied that there were any other relevant considerations in relation to this issue. 

16. It is to be noted that the submission advanced on this application for review, that is, that applicant’s circumstances, as described, were consistent only with a well-founded fear of persecution, was not a claim advanced by the applicant. I am not satisfied, in those circumstances, that the Tribunal was required to consider those matters.  That ground is not made out. 

17. The second part of ground 1 concerned an allegation by the applicant that the Tribunal had asked itself the wrong question. As with the previous alleged ground of failing to take into a relevant consideration, it was said that asking a wrong question constituted jurisdictional error. 

18. In relation to the second part of ground 1, the asserted wrong question, the Tribunal said that it did not accept that the applicant had the profile of an ex-employee who was willing to denounce corruption and denounce senior political and powerful figures in Iran.  It was said that this was the wrong question and the right question was whether or not the applicant was at risk of harm from political figures in Iran.  It was said that the Tribunal asked whether the applicant posed a risk to these figures, in particular Ezzati and Rezaee, rather than the other way around, that is, whether they posed a risk to him. 

19. There is an element of truth in that assertion.  However, the applicant’s claims were based on the claim that he constituted a risk to Ezzati and, in turn, to Rezaee based on his, the applicant’s, knowledge of Ezzati’s corruption.  The Tribunal considered this issue at paragraphs 50 to 52 of the Tribunal decision as an anterior question to the correct question as identified by the applicant.  The Tribunal found, as I have already mentioned, that the applicant did not have confidential information of the kind likely to threaten Ezzati or Rezaee, that there was a public scandal, that there was a trial of Ezzati, and in those circumstances he did not constitute a risk to him, Ezzati, and in consequence it was unlikely that they would seek to harm him - that is, they had no motive to harm him. 

20. In my view, the Tribunal asked the question that was said to be the wrong question, as a necessary anterior question to be answered before addressing the correct question, that is, the ultimate question, whether or not the applicant had a well-founded fear of persecution on the grounds that he advanced.  This ground is not made out. 

21. Ground 2 relates to an asserted risk of persecution as a returned asylum seeker.  It was said that the Tribunal considered only the risk of return of a voluntary returnee to Iran and not an involuntary returnee.  It was said that the failure to put the question of what would happen to the applicant as an involuntary returnee was a denial of procedural fairness.  The respondent said in reply to that submission that the applicant never articulated a claim that he was at risk of harm as an involuntary returnee and that, consequently, the Tribunal was not required to consider that issue.  That submission may be correct, but, in fact, the Tribunal did consider the position of involuntary returnees in Iran.  It is clear from paragraph 78 of the Tribunal’s decision that the Tribunal considered the situation of involuntary returnees who, in the case of a person unwilling to obtain a travel document from the Iranian authorities would or could, presumably, travel on a laissez-passer. 

22. At paragraphs 78 to 80, the Tribunal considered the consequences of returning on a laissez-passer and concluded on the basis of country information from the Department of Foreign Affairs and Trade that a person travelling on a laissez-passer – in other words, an involuntary returnee – would likely be questioned at the airport by Iranian authorities but nothing more. The other relevant issue is that, under section 424A(3)(a) of the Migration Act, country information or information, in other words, not specific to the applicant, was not required to be put. I am satisfied this ground is not made out.

23. Ground 3 is an assertion that the finding by the Tribunal in paragraph 46 of the decision that the three men in suits who had allegedly visited the applicant’s home on two occasions was “vague and lacking in detail” was not open.  It was said that this central finding had a cascade effect and infected the balance of the Tribunal’s reasoning.  The applicant submitted that in the context of his narrative, as related by him, the finding that this aspect of his evidence lacked detail and was vague was illogical. 

24. I acknowledge that, on my reading of the applicant’s evidence as outlined in the Tribunal decision, the narrative given by the applicant – and I have described it in the introductory part of these reasons – is not vague; it is reasonably precise.  However, the description of the three men in suits, in my view, was vague.  Counsel for the applicant conceded as much. Perhaps that was unavoidable given that it was, at its highest, said to be hearsay evidence in any event, relating information from the applicant’s father and mother.

25. Nevertheless, the significance of the visit by the three men in suits to the applicant’s home, or the home of his parents, was that it carried an implicit threat of harm to the applicant.  This was the event which, on the applicant’s claim, triggered his flight from Iran.  It was a central event and it was appropriate to consider whether or not the narrative - the applicant’s evidence - was credible.  The Tribunal’s description on this evidence was, in essence, a credibility finding.  In my view, the Tribunal was entitled to take into account the applicant’s evidence before the Tribunal. 

26. The applicant’s evidence was that the visit was not reported to the police and that the identities of the men were unknown, as was the purpose of their visit.  Counsel for the applicant referred to the decision of the High Court in the Minister for Immigration v SZMDS (2010) 240 CLR 611. As that decision shows, illogicality amounting to a jurisdictional error occurs when reasonable minds cannot but come to one conclusion and that was not the conclusion reached by the decision-maker.

27. In my view it was open to the Tribunal to reach the conclusion that the applicant’s evidence, as described in the Tribunal’s written reasons, in this aspect was vague and lacking in detail and to add that to the other material it considered, leading to an adverse assessment of the applicant’s credibility.  I am satisfied that this ground is not made out.  The result is that the application will be dismissed.

28. While costs are discretionary, the discretion must be exercised judicially.  The grounds outlined by Ms Stanley are not recognised grounds for dispensing with a costs order.  Costs orders follow the event and costs orders are made, unless there is some statutory provision otherwise, regardless of the impecuniosity or otherwise of the losing party.  I will make the order for costs in that amount. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 10 April 2018

CORRECTIONS:

1. Reasons for Judgment: Page 6, Paragraph 22 seventh line delete “section 24(3)(a)” and insert “section 424A(3)(a)”.

FURTHER CORRECTIONS:

1. Reasons for Judgment: Page 6, Paragraph 22 seventh line delete “section 424A(3)” and insert “section 424A(3)(a)”.