CZL16 v Minister for Immigration
[2017] FCCA 1262
•13 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CZL16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1262 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XD) visa – s.438 certificate issue – content of the certificate has no apparent relevance given the Tribunal’s acceptance of the applicant’s identity – no practical injustice occasioned to the applicant – no jurisdictional error identified – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476 |
| Cases cited: AVO15 v Minister of Immigration and Border Protection [2017] FCA 566 |
| Applicant: | CZL16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2787 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 13 June 2017 |
| Date of Last Submission: | 13 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 13 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Williams |
| Solicitors for the Applicant: | Halas Lawyers |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | HWL Ebsworth Lawyers |
ORDERS
Grant leave to the applicant to file in Court and to rely upon the amended application and the Court dispenses with the need for the electronic filing of the same.
The amended application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $5,600.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2787 of 2016
| CZL16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 30 August 2016 affirming a decision of the delegate not to grant the applicant a Protection Class XD visa.
The applicant was found to be a citizen of Iran and his claims were assessed against that country. The applicant claimed to have spent his whole life in Iran, until obtaining an Iranian passport after completing his military service. The applicant claimed to have left Iran and flew to Indonesia using his Iranian passport. The applicant claimed he transited through Qatar before entering Indonesia on a tourist visa. The applicant claimed he remained in Indonesia for about a month and then flew to a place from Jakarta, where he boarded a boat.
The applicant’s boat was intercepted on 26 April 2013 and he was brought ashore onto the Australian mainland. The applicant applied for a protection visa on 8 July 2013. On 12 February 2015, the delegate found that the applicant failed to meet the criteria under the Act and refused the grant of a protection visa.
The Tribunal’s decision
The applicant applied for review to the Tribunal on 20 February 2015. The Tribunal was provided with a certificate dated 12 February 2015 under s.438(1)(a) of the Migration Act which identified the disclosure of folios 106-109 containing information relating to an internal working document and business affairs would be contrary to the public interest.
By letter dated 19 May 2016, the applicant was invited to attend a hearing on 12 May 2016. The applicant appeared on that date to give evidence and present arguments. The applicant claimed to fear harm from the brother and father of a former girlfriend in Iran in respect of whom he allegedly recommenced a relationship, after complaints of action taken by the girlfriend’s parents having the applicant taken to Court. The applicant also claimed to fear harm because of an alleged addiction to a painkiller and that he had relapsed into drug addiction and also claimed to fear harm as a failed asylum seeker.
The Tribunal identified the applicant’s background and set out the relevant law. At the commencement of the consideration of the applicant’s claims and evidence, the Tribunal stated that it had carefully considered the information on the Department file. The Tribunal made reference to an exchange of the applicant’s entry video concerning the applicant’s claims in respect of the family of the girlfriend.
The applicant alleged that he had thrown his passport into the water after he had used it to legally depart Iran. The Tribunal made reference to the applicant’s statements in relation to the incidents involving the former girlfriend and his fear that the family would report him to authorities, that the family had connections and that he would be arrested and severely punished.
The applicant also alleged that while he was in Australia, two letters had been sent to his family home, one being an order for his arrest and the other being purported punishment for two years’ imprisonment and 74 lashes.
The Tribunal identified that the delegate had found the applicant’s claims were not credible and was concerned by inconsistencies in the applicant’s evidence in respect of the alleged relationship. The Tribunal made reference to what occurred at the hearing before the delegate. The Tribunal made reference to the applicant’s rhetorical response to the Tribunal as to what should he say, as he had been told he was lying.
The Tribunal made reference to the applicant’s evidence to the Tribunal that he travelled with a friend and also made reference to his passport being inside the shark’s mouth. The Tribunal asked the applicant about the relationship with the former girlfriend and whether the applicant could have avoided the problem by moving elsewhere and ending the relationship.
The Tribunal also asked the applicant about the timing of various threats, which included a reference to before and after the applicant’s military service. The applicant also told the Tribunal that he had been convicted four times in relation to alcohol offences and alleged that another conviction related to the former girlfriend’s family.
The Tribunal identified during the hearing, that the applicant was questioned about the relationship and the problems this allegedly caused him. The applicant alleged that the relationship started a month or two before he went into the military service and that the former girlfriend used to call him regularly during military service and that he felt homesick. The applicant made reference to military service being hard and that when the former girlfriend called, they chatted. The applicant also made reference to meeting up with his former girlfriend when he came home from military service. The applicant stated that when he came home from military service, his former girlfriend was at university and there was more freedom, permitting them to go out together.
The Tribunal made reference to certain country information. The Tribunal discussed with the applicant its concerns about the different evidence that he provided at different points in time about his interactions with the authorities. The Tribunal raised with the applicant its concerns in relation to his evidence changing over time about whether he was subject to an arrest warrant in Iran, or whether he had been convicted of criminal offences. Reference was also made to the protection visa application in which he had answered that he had not been convicted of a crime or offence.
The Tribunal made reference to the documentation the applicant submitted, indicating that he was convicted of having illegal relations with the girlfriend. The Tribunal raised with the applicant its concerns in that regard. The Tribunal also explored with the applicant his alleged drug addiction. The Tribunal also raised with the applicant whether he would face harm as a failed asylum seeker.
In the course of raising with the applicant, the Tribunal was concerned in respect of the conviction document and arrest document. The applicant said there were two arrest warrants - the first one he did not answer and the second one when he did not go there. The Tribunal raised with the applicant the DFAT information in relation to possibly leaving Iran when there are warrants or charges outstanding.
The applicant’s credibility
The Tribunal formed the view that the applicant had not told the truth about why he left Iran and why he does not want to return to Iran now. The Tribunal found that the key elements of the applicant’s claims have changed significantly over the course of his protection visa application and his evidence about his relationship with the former girlfriend was vague and unpersuasive. The Tribunal took into account the applicant’s ability to depart Iran without difficulty on his own passport. The Tribunal was concerned that the applicant was willing to embellish and change his evidence in an attempt to strengthen his claims for protection.
The Tribunal set out its concerns in relation to the applicant’s credibility. The Tribunal found the applicant’s evidence about how and when the former girlfriend’s family discovered their relationship was vague and lacked consistency over time. The Tribunal did not accept the applicant’s explanations for the discrepancies to be persuasive. The Tribunal found the fact the applicant was able to depart Iran on his own passport without any difficulty supports the conclusion that he was not, at that time, of adverse interest to the authorities for any reason.
The Tribunal did not accept the applicant’s case was advanced by the documents that have been submitted. Ultimately, the Tribunal considered the documents the applicant had provided to lack probative value and the documents did not overcome the Tribunal’s concerns as to the credibility of the applicant’s claims.
The Tribunal did not accept the applicant was a witness of truth in relation to why he left Iran or why he was afraid to return to Iran. The Tribunal did not accept the applicant was ever in a secret relationship with the former girlfriend as claimed. The Tribunal did not accept that the applicant ever attracted the adverse attention of the authorities or the former girlfriend’s family members.
The Tribunal did not accept that the applicant was ever investigated, charged, convicted or sentenced in relation to any criminal offences in Iran as claimed. The Tribunal did not accept that the applicant was sent summonses or arrest warrants in Iran or that he was ever detained in Iran or required to appear in Court following a complaint by the former girlfriend’s family. The Tribunal did not accept that the applicant was convicted and sentenced in absentia for having illicit relations with a girl or that he was summonsed to Court in relation to harassing her family, or that he is, or was, the subject of an arrest warrant.
The Tribunal found the applicant had fabricated his claims to be of adverse interest to the Iranian authorities and to the family of the alleged woman in their entirety in the hope of obtaining a visa. The Tribunal did not accept that the former girlfriend’s brother worked as a spy for the Iranian authorities or that the former girlfriend’s brother had threatened the applicant or made allegations to the authorities about the applicant’s activities in Iran or Australia.
The Tribunal was not satisfied that the applicant had ever been arrested or convicted of a criminal offence in Iran for alcohol consumption or for any other criminal offence and rejected that the applicant will face harm of any type for this reason.
The Tribunal was not satisfied the applicant was ever a drug addict. The Tribunal did not accept that if the applicant returns to Iran there is a risk he may relapse into drug addiction and rejected in their entirety, the applicant’s claims that were put forward in relation to the drug addiction.
Consideration of refugee convention criteria
The Tribunal was not satisfied there was a real chance now or in the foreseeable future that the applicant would be subjected to serious harm for being a member of a particular social group failed asylum seekers or failed asylum seekers returning from Australia. The Tribunal did not accept that the applicant had a well-founded fear of persecution for one or more of the five Convention reasons if he returns to Iran now or in the reasonably foreseeable future.
The Tribunal did not accept that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm for the reasons claimed. The Tribunal found the applicant had not told the truth about the reasons why he left Iran. The Tribunal was not satisfied there was a real chance the applicant will suffer significant harm upon his return to Iran for reasons of being a failed asylum seeker or a failed asylum seeker from a Western country.
The Tribunal having regard to all the evidence, and having considered the claims singularly and cumulatively, found that the applicant does not have a well-founded fear of persecution for any Convention reason. The Tribunal found that the applicant did not meet the criteria under s.36(2)(a) or s.36(2)(aa) of the Migration Act and affirmed the decision under review.
Before this Court
Mr Williams of counsel, filed an application in a case supported by an affidavit seeking to amend the application. The amended application was not opposed.
The ground in the amended application is as follows:
Ground 1: Jurisdictional Error: Re the certificate and notification regarding the nondisclosure of information under section 438 of the Migration Act 1958 (Cth)
2 The non-disclosure of certain information under section 438 of the Migration Act 1958 (Cth) by the delegate to the Minister on 12 February 2015, in relation to folios 314, 315 of the file number CLF2013/ 179293 was not a process according to law or alternatively constituted a denial of procedural fairness.
Particulars
a) On 12 February 2015. Kent Crawford. IMA Protection NSW. Position Number 60015301, delegate for the Minister for Immigration and Citizenship, issued a certificate and notification regarding the disclosure of certain information under section 438 of the Migration Act 1958 (Cth) in relation to folios 314, 315 of the file number CLF2013/179293.
b) The form of the certificate did not confirm to the statutory prescription and is invalid. Moreover. neither its existence nor its effect were ever disclosed to the applicant, let alone in such away as may have invited consideration by the applicant of the potential operation of section 438(3) of the Migration Act 1958 (Cth).
c) The Section 438 certificate did not relate to a matter permitted under section 43 8(1) of the Migration Act 1958 (Cth), with the result that it was invalid. For the AAT to have proceeded or acted on an invalid certificate was not a process according to law and of itself constituted jurisdictional error.
d) Alternatively, if the AAT proceeded on the basis that the certificate under section 438 of the Migration Act 1958 (Cth) was valid, it is entirely unclear how the Tribunal considered the potential operation of s 438(3) or whether it considered s 438(3) at all. As such, there was been a denial of procedural fairness and accordingly a jurisdictional error is established.
Consideration
At the commencement of the hearing before the Court, the first respondent sought to read an affidavit of Ms Given sworn 6 June 2017, and to tender an exhibit thereto. Mr Williams of counsel, objected to the tender and in particular, submitted that the material in the affidavit was fresh evidence.
Mr Williams of counsel, accepted that where the issue raised before the Court for a Constitutional writ involves an allegation of denial of procedural fairness, the Court is in a position where it can and does receive further evidence if relevant. I accept the submissions of the first respondent that the evidence of Ms Given was not fresh evidence and was relevant.
The evidence of Ms Given was relevant to the ground identified in the amended application and it is for these reasons that the Court admitted into evidence both the affidavit and the exhibit to the affidavit.
Exhibit to the Affidavit of Ms Given sworn 6 June 2017
The exhibit to the affidavit was an identity integrity checklist. Mr Williams of counsel took the Court through the identity checklist to emphasise content which he submitted meant, that it could not be said that there was no practical injustice in the present case by reason of the applicant not having had disclosed the existence of a certificate or being shown the material the content the subject of the certificate. The reference to folios 314 and 315 in the certificate are in error and do not exist. The Court has before it folios 106 to 109 in respect of the identity integrity checklist.
Mr Williams of counsel referred to the systems checks in respect of which there was completed a reference to the Five Country Conference as well as drawing attention to the sections under the heading Results of Investigation where boxes had been ticked as to matters of concerns in respect of subheadings and the content thereunder in respect of residency details, education, employment documents and information. Mr Williams of counsel took the Court through the content of each of the paragraphs under those topics and drew attention to the fact that the applicant’s military service was a matter referred to in the Tribunal’s reasons.
Mr Williams also emphasised paragraph 19 in the Tribunal’s reasons which identified that the Tribunal had considered carefully the information on the Department file. This is a case where the applicant’s identity was not in issue and the Tribunal accepted that the applicant was an Iranian citizen. There is no reference to the identity integrity checklist being used by the Tribunal in relation to any of the adverse credibility findings.
Mr Williams of counsel made reference to the content of the checklist, referring to the applicant travelling with a friend and the Tribunal’s reasons, which referred to the applicant maintaining that assertion. No adverse credibility finding was made in respect of the subject matter of any of the contents set out in the identity integrity checklist.
The first respondent, whilst not conceding that the certificate was invalid accepted that this Court, as a result of the decision in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 was bound to find that the certificate was invalid. It is common ground that neither the certificate nor the underlying documents were shown to the applicant in the course of the hearing.
Consideration of any practical injustice to the applicant
The critical issue for this Court is whether there is any practical injustice occasioned to the applicant by reason of the failure to disclose the certificate or the underlying documents insofar as the certificate is invalid.
I accept the first respondent’s submissions that neither the certificate nor the documents to which were referred are mentioned in the Tribunal’s reasons. I accept the first respondent’s submission that the content of the certificate in the folios identified have no apparent relevance given the Tribunal’s acceptance of the applicant’s identity. I find the Tribunal did not have regard to the documents the subject of the certificate in the conduct of the review. I find that the documents the subject of the certificate were not relevant to the review and the failure to disclose the same would not possibly affect the outcome of the review.
The Tribunal, on the face of its reasons, has not used the content of the document in the making of the adverse credibility findings in respect of the applicant’s claims concerning his girlfriend, drug addiction and alleged criminal offences with outstanding warrants.
I accept the first respondent’s submission that this is a case where the identity integrity checklist and the certificate were not considered material by the Tribunal and that the failure to disclose the certificate and the documents gave rise to no practical injustice. No jurisdictional error as alleged in ground 1 is made out.
Adjournment application raised from the bar table
In the course of the hearing, Mr Williams of counsel handed up submissions seeking an adjournment on the basis that there is a Full Court of the Federal Court of Australia decision to be determined in an appeal SZVDC v Ministerfor Immigration and Border Protection [2016] FCA 1382 and that there was a Full Court of the Federal Court of Australia matter that had been heard and was pending in BSV15 v Minister for Immigration and Border Protection [2016] FCCA 2461 and that there was a further matter in which a matter had been fixed for hearing, being BTI15 v Minister for Immigration and Border Protection & Anor [2016] FCCA 2326.
Mr Williams of counsel submitted that in the circumstances of the present case, it was appropriate to adjourn the proceedings pending the determination of the certificate issues raised in those cases.
This Court is bound by the decision in AVO15 v Minister of Immigration and Border Protection [2017] FCA 566 in which Barker J identifies that the relevant consideration in circumstances where the material is available before the Court in respect of an alleged invalid certificate is whether there was a practical injustice. In the present case, the failure to disclose the certificate and the failure to provide the documents the subject of the certificate gives rise to no practical injustice.
Mr Williams of counsel submitted that there would be a saving of time, convenience and cost in adjourning the matter. I do not accept that submission. I find that the interests of the administration of justice do not warrant an adjournment for the matter of the present case and it was for these reasons that an adjournment was refused.
Conclusion
Further, I am satisfied that the non-disclosure of the certificate and documents the subject of the certificate could not possibly affect the outcome of the review and if there was a relevant error, I would refuse relief on discretionary grounds. For the above reasons, no jurisdictional error is made out as alleged in the amended application and accordingly, the amended application is dismissed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 22 August 2017
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