CYA16 v Minister for Immigration

[2017] FCCA 1233

FEDERAL CIRCUIT COURT OF AUSTRALIA

CYA16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1233

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – protection visa – whether the Tribunal’s decision was illogical – whether the Tribunal failed to deal with a claim of the applicant – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

Applicant: CYA16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2744 of 2016

Judgment of: Judge Street

Hearing date: 8 June 2017

Date of Last Submission: 8 June 2017

Delivered at: Sydney

Delivered on: 8 June 2017

REPRESENTATION

Counsel for the Applicant: Mr J Williams

Solicitors for the Applicant: Halas Lawyers

Solicitors for the Respondents:

Mr K Eskerie

Sparke Helmore

ORDERS

1. Grant leave to the Applicant to rely upon the amended application in the form of “BE-1” to the affidavit of Behrooz Ehsani sworn 25 May 2017.

2. Direct that the amended application is filed electronically on or before 12 June 2017.

3. The amended application is dismissed.

4. The Applicant pay the First Respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2744 of 2016

CYA16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 22 August 2016 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be citizen of Iran and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 4 May 2013. The applicant lodged an application for protection on 16 July 2013.

Claims for protection

1. The applicant provided a statement in support of the applicant’s claims dated 11 July 2013. In summary, the applicant claimed to fear harm from his uncle on the basis of an incident in February 2013 involving the uncle’s wife. The applicant claimed that he visited his uncle’s apartment to attend to some business with him. On approaching the apartment he heard the sound of a pornographic movie in the house. The applicant’s uncle’s wife opened the door wearing only a bathrobe and looked “Strangely sexy and tempting”.

2. The applicant’s uncle’s wife invited the applicant inside several times but the applicant refused and, in leaving, his shirt was ripped. The applicant claimed that he passed his uncle on the way out looking dishevelled. The applicant claimed that following the incident he was accused of sexually assaulting the uncle’s wife.

3. The applicant claimed that his uncle and other relatives were powerful members of Sepāh-e Pāsdārān-e Enqelāb-e Eslāmi (“Sepah”) and, fearing harm from them, the applicant fled Iran. The applicant claimed that people were searching for him in Iran and had threatened his son. In submissions to the Tribunal the applicant claimed that in early 2016 he received a phone call from his uncle threatening to find and kill him.

4. On 3 February 2015 the delegate found that the applicant failed to meet the criteria under the Act and refused to grant him a protection visa. On 11 February 2015 the applicant sought a review.

The Tribunal’s decision

1. The applicant was invited to attend a hearing, which was rescheduled by a letter dated 6 June 2016, to be held on 16 August 2016. The applicant appeared on that date to give evidence and present arguments and was assisted by his migration representative. Prior to the hearing, submissions were provided to the Tribunal on behalf of the applicant dated 6 June 2016.

Refugee assessment

The applicant’s religious beliefs

1. The Tribunal rejected the applicant’s claims in relation to his religious beliefs and was not satisfied the applicant has a real chance of suffering any harm in Iran for reason of his religious beliefs.

The February 2013 incident

1. The Tribunal addressed the incident that was alleged to have occurred in February 2013. The opening paragraph by the Tribunal identified the substance of the version of events alleged by the applicant.

2. The Tribunal set out a version of the incident involving the applicant being invited by the uncle’s wife into the apartment and the applicant refusing and the applicant alleging that the uncle’s wife suddenly grabbed his shirt and tried to pull him into the apartment and that in the process his shirt was torn. The applicant alleges that he threw the money and the instalment book into the apartment and headed downstairs. The applicant alleges that on the way down the stairs he met the uncle and that the uncle noted that the applicant was looking dishevelled and asked what was happening and the applicant replied that he was there to pay the instalment and left.

3. The Tribunal, in its reasons, said that it has decided to accept this is the version of events which the applicant wishes to put, which the Tribunal noted in brackets was the version that was clarified at hearing. The Tribunal made reference to the applicant’s evidence at the hearing that he regularly argued with the uncle and that he claimed the applicant and the uncle would also meet on other occasions and exchange greetings. The Tribunal was satisfied the uncle never apparently had more than occasional arguments about religious matters.

4. The Tribunal then made reference to certain country information and made reference to statements made by the Tribunal during the hearing that the Tribunal accepts that incidents such as the February incident in 2013 may be possible but observed that the Tribunal needed to consider whether it accepts that the claimed February 2013 incident was plausible. The Tribunal, in that regard, made reference to a proposition that this is because of the applicant’s evidence the applicant attended the uncle’s apartment and did nothing untoward but merely extricated himself from the uncle’s wife and, in so doing, his shirt was torn.

5. The Tribunal continued noting that nothing was done to the wife and that she was then able to move back into the apartment. The Tribunal made reference to the agent saying at the hearing that it was unusual for a woman to answer the door of a home in a bathrobe but subsequently conceded this may be more likely if the female noticed the person at the door is a relatively close family member. The Tribunal noted that the agent said that the uncle was a strictly religious man but it was also claimed that the uncle was accused of having girlfriends during the marriage and that this may have caused some tension in the marriage.

6. The Tribunal identified that the Tribunal accepted that persons can act in a hypocritical manner. The Tribunal then stated that, as a result of this incident of which the applicant said he was entirely innocent, he was then accused of sexual assault against the uncle’s wife. The Tribunal then found in the circumstances of the case that it did not accept that this was plausible.

7. The Tribunal then proceeded to identify the reasons why the Tribunal had decided to reject the applicant’s claim in respect of the allegation of sexual assault of the uncle’s wife and the Tribunal found it was not satisfied that the applicant would plausibly be suspected of sexual assault for the reasons he claimed. The Tribunal then said that, given the accumulation of implausibility findings, the Tribunal was satisfied globally that the incident did not happen. The Tribunal found that it did not accept the applicant was suspected of sexually or indecently assaulting the uncle’s wife as he claimed. The Tribunal was not satisfied that the applicant has a real chance of suffering any harm in Iran in respect of the February 2013 incident.

The uncle’s ongoing wrath

1. The Tribunal then made reference to the alleged uncle’s ongoing wrath and that shortly after the applicant left the apartment it was alleged that the uncle phoned the applicant and swore at him and accused him of doing something indecent to the uncle’s wife. The applicant professed his innocence and the summary by the Tribunal referred to the uncle continuing to threatening the applicant and telling him that he would be killed. The Tribunal observed that at the hearing the applicant conceded that his uncle had accused him of sexually assaulting the uncle’s wife. The applicant also claimed that he was still being looked for.

2. The Tribunal then made reference to the submissions of the agent of 30 May 2016 claiming that five months ago the applicant received a phone call from an anonymous caller and that this man started to swear at the applicant. The applicant alleged that the man was his uncle and that the uncle made a statement that whatever it costs he would find and kill the applicant. The applicant alleges that he responded that he was an innocent man but the uncle did not let him explain himself and shouted to shut up. The applicant alleges that he hung up, called his wife and she told him that the uncle’s wife had left him and perhaps this was why he was so angry.

3. The applicant claimed that his wife did not know about the February 2013 incident. The Tribunal found that it was not plausible that the applicant’s wife would not have known about why the applicant was of any adverse interest to the uncle even if information had been passed by family gossip. The Tribunal did not find it plausible that if the wife knew that her ongoing relations with the applicant would have been so apparently amicable and no claim was made about any hostility between the applicant and his wife. The applicant identified that he contacted her two times per month.

4. Further, the Tribunal noted that the above phone call occurred some eight months prior to the Tribunal hearing, almost three years after the alleged February 2013 incident. The Tribunal observed that the applicant had not claimed to have had any contact with the uncle since the February 2013 incident up until the time of the abovementioned phone conversation around early 2016.

5. The Tribunal did not accept the uncle would have had an ongoing adverse interest in the applicant for the reasons claimed apparently having the capacity to find the applicant’s contact details in Australia and only contact and abuse the applicant some three years after the 2013 incident if the claims about the incident were true. The Tribunal observed that this was raised with the applicant and that it was suggested that maybe the uncle phoned the applicant after the uncle’s wife had left him. The Tribunal noted that on further discussion, the Tribunal was not satisfied the applicant actually knew when the uncle’s wife had left him. The Tribunal was satisfied that the applicant’s evidence about the applicant’s uncle calling him following the departure of his wife was speculation and did not overcome the Court’s satisfaction that the claim that the uncle called and abused him in early 2016 is not plausible.

6. The Tribunal was not satisfied the applicant has a real chance of suffering any harm in Iran because of the uncle’s alleged ongoing interest in the applicant.

The uncle’s membership of Sepah

1. The Tribunal made reference to the uncle’s membership of Sepah and the applicant’s fear of the uncle’s influence of Sepah after the February 2013 incident. The Tribunal was not satisfied the applicant would have departed Iran on his genuine passport without taking substantially more steps to ensure he would not be prevented from departing Iran at the airport if the uncle or others were influential with Sepah or members of Sepah, as was claimed by the applicant.

2. The Tribunal, therefore, rejected as false that the uncle or any other family member was a member of Sepah. The Tribunal was not satisfied that the applicant has a real chance of suffering harm in Iran for reasons of the alleged uncle’s influence with Sepah.

Departing Iran and honour violence

1. The Tribunal then made reference to the applicant’s evidence under a heading “Departing Iran and honour violence” to his immediately grabbing his passport following the February 2013 incident and calling his brother.

2. The applicant alleges that on the way to a friend’s home the uncle’s wife phoned the applicant and was crying and said she was sorry for the problems she had caused and that her husband would harm the applicant. At the hearing, the applicant told the Tribunal that the uncle’s wife told him to flee Iran. The Tribunal found that the applicant departed Iran by the Tehran Airport on 19 February 2013. The Tribunal referred to country information in respect of honour killings and also referred to the two tribal minorities.

3. The Tribunal observed that the applicant’s family were not members of such minorities and that the applicant did not claim the uncle’s wife was subject to any harm after the February 2013 incident. The Tribunal observed that for the reasons it had given it had rejected the claims about the February 2013 incident as being false. The Tribunal found that the applicant’s claims about fleeing Iran were false. Having considered the applicant’s claims carefully, the Tribunal was satisfied that the applicant does not have a real chance of persecution in Iran.

4. The Tribunal was not satisfied the applicant is a person in respect to whom Australia has protection obligations under the Refugees Convention and found the applicant did not meet the criteria under s.36(2)(a) or (b) of the Act.

Complementary protection assessment

1. The Tribunal found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that he will suffer significant harm.

2. The Tribunal found that the applicant did not meet the criteria under s.36(2)(aa) of the Act and affirmed the decision under review.

Proceedings before this Court

Grounds in the application

1. The grounds in the amended application are as follows:

   Ground 1: Insufficient logical or evidentiary basis for the Tribunal's decision

   1. The decision by the second respondent (Tribunal) was affected by jurisdictional error as there was an insufficient logical or evidentiary basis for the finding of the Tribunal at [25]-[26] given the finding at [23] by the Tribunal.

   Particulars

   a) At [23] of the decision record, the AAT accepted:

   The uncle's wife invited the applicant into the apartment but he refused. He feared what may happen if he entered. The uncle's wife insisted and the applicant again refused. The applicant then said “all of a sudden she grabbed his shirt and tried to pull him into the [apartment”. In the process, the applicant's shirt was torn. At this stage the applicant threw the money and the instalment book into the apartment and headed downstairs. On the way down the stairs he met the uncle. The uncle noticed the applicant had looked dishevelled and asked him what was happening. The applicant said he was there to pay the instalment and left. The Tribunal has decided to accept this is the version of events which the applicant wishes to put (and which version was clarified at hearing).

   b) Whilst at [23], the Tribunal accepted this version, at [25]-[26], the Tribunal found that it was possible but not plausible.

   c) At [25], the Tribunal found that " [a]s stated to the applicant at hearing, the Tribunal accepts that such incidents (the February 2013 incident) may be possible but it needs to consider whether it accepts the claimed February 2013 incident was plausible."

   d) At [26]: the Tribunal found that " [i]n the circumstances of the case, the Tribunal does not accept this is plausible."

   Ground 2: Failure to deal with a claim or integer of a claim by the applicant

   2. (1) The Tribunal failed to make a finding on a substantial, clearly articulated argument relying upon established facts at [28] of the decision record and that failure amounted to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction.

   2. (2) Alternatively, the decision by the Tribunal was affected by jurisdictional error as the second respondent failed to deal with a claim or an integer of a claim made by the applicant at [28] of the decision record.

   Particulars

   a) At [28], the Tribunal observed: “A few minutes after leaving the uncle's apartment (in February 2013), the uncle phoned the applicant and swore at him and accused him of doing something indecent (to the uncle's wife). The applicant professed his innocence.

   However, the uncle continued to threaten the applicant and told him he would kill him.

   At hearing, the applicant conceded that the uncle had accused him of sexually assaulting the uncle's wife. The applicant had also claimed that he was still being looked for."

   b) The Tribunal failed to deal with the claim set out at [28] of the reasons, that the uncle threatened the applicant after the 2013 incident, which constituted jurisdictional error.

2. Mr Williams of counsel, on behalf of the applicant, submitted that the Tribunal had made inconsistent and illogical findings in relation to the February 2013 incident. Mr Williams argued that the Tribunal had accepted the applicant’s version of events in paragraph 23 and had then made inconsistent findings in rejecting parts of the incident as not being plausible.

3. Mr Eskerie, on behalf of the first respondent, identified the structure of the second respondent’s reasons and, in particular, dealing initially with the February 2013 incident and inconsistencies. Reference was made to the delegate being satisfied that there were material differences between the applicant’s account recorded in his entry interview and his protection visa claims. The Tribunal observed that it was satisfied the inconsistencies referred to should not be taken into account to discount the applicant’s material claims and then identified that it would discuss the matters further.

4. Mr Eskerie, on behalf of the first respondent, pointed out that the Tribunal, under particular headings, has summarised the applicant’s claims in respect of those headings and made dispositive findings.

Consideration

Ground 1

1. I accept the first respondent’s submission that the last sentence of paragraph 23 was not a finding by the Tribunal accepting the applicant’s version of events. Rather, the Tribunal was identifying what it was that the Tribunal accepted that the applicant wished to put as to what the events were.

2. The Tribunal proceeded to make adverse findings that were open to the Tribunal in respect of the February 2013 incident. The adverse findings in relation to a want of plausibility were open and not irrational nor illogical. Further, the contention that there was no evidentiary basis for the adverse findings is not correct. No jurisdictional error, as alleged in Ground 1, is made out.

Ground 2

1. In relation to Ground 2, Mr Williams of counsel submitted that there was an integer of the applicant’s claims, being the continued threat to the applicant by the uncle that he would be killed, that was not the subject of findings and that the Tribunal had failed to address an essential integer in the applicant’s claims. Apart from the identification of an accusation immediately following the applicant’s departure by the uncle, there was no separate claim identified by the applicant of ongoing threats from the uncle beyond the communication that was the subject of adverse findings in paragraph 30. Those adverse findings of the Tribunal cannot be said to lack an evident and intelligible justification.

2. The Tribunal made a finding that was open in that it rejected the claims about the 2013 incident and found that the same were false. That finding clearly subsumed the applicant’s claim of ongoing wrath by the uncle and the communication alleged immediately following the incident from the uncle and the communication suggested to have occurred eight months prior to the Tribunal hearing. There was no integer that the Tribunal failed to make a finding in respect of.

1. No jurisdictional error is made out by Ground 2.

Conclusion

1. The amended application is dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  4 September 2017