DAI16 v Minister for Immigration

[2018] FCCA 60

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAI16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 60

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Iran due to an adulterous relationship – applicant not believed – whether the Tribunal decision is unreasonable considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36, 424AA

Cases cited:

Applicant WAEE v Minister for Immigration (2003) 75 ALD 630

Minister for Immigration v SZMDS (2010) 240 CLR 611
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Tran v Minister for Immigration [2004] FCAFC 297

Applicant: DAI16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2810 of 2016

Judgment of: Judge Driver

Hearing date: 13 December 2017

Delivered at: Sydney

Delivered on: 9 February 2018

REPRESENTATION

Counsel for the Applicant: Mr J Shaw

Solicitors for the Applicant: Stamford Law Firm

Solicitors for the Respondents: Mr A Keevers of Sparke Helmore

ORDERS

1. The application as amended on 29 May 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2810 of 2016

DAI16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 25 August 2016.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. The following statement of background facts is derived from the submissions of the parties.

3. The applicant is a 30 year old Iranian male with Iraqi parents, who became an Iranian citizen in 2010.  The applicant’s claims for protection centred on his Arab ethnicity, his desire to live a Western lifestyle in Iran and a relationship with a married woman in Iran.

4. The applicant came to Australia on a sponsored family visa in 2014.  He applied for a protection visa on 31 October 2014.  In his application to the Minister’s Department (Department), the applicant claimed that he had been subjected to “serious and/or significant mistreatment” due to his Arab ethnicity, that his freedom had been severely restricted and that he had been unable to live a Western lifestyle.[1]  Whilst the applicant had foreshadowed the provision of a detailed written statement, no such statement was received by the Department.

   [1] Court Book (CB) 20-23

5. In his interview with the delegate, the applicant made the following claims:

   a)he was an ethnic Arab, who had experienced some difficulty obtaining employment in the past, though he did not participate in any groups concerned with promoting the rights of Arabs in Iran;[2]

   b)he did not agree with the Iranian regime, though he was not interested in politics;[3]

   c)he wanted to live a Western lifestyle in Iran, but had to do so in private. He had previously been stopped from playing cards and for wearing non-Islamic clothing by the Basij (Iranian morality police);[4] and

   d)he had a girlfriend but had only been able to speak to her on the telephone and was unable to take her on a date or to a party.[5]

   [2] CB 81-82

   [3] CB 82

   [4] CB 82

   [5] CB 82

6. The delegate refused the visa on 18 February 2015.  The applicant instructed a new representative and applied for review by the Tribunal on 24 February 2015.  In a submission emailed two days before the Tribunal hearing, the applicant’s migration agent raised a new claim on behalf of the applicant, which centred on the applicant’s relationship with a married woman in Iran, named Huda.[6]

   [6] CB 116-124

7. The applicant claimed that Huda’s husband had discovered the relationship and had told the community in Tehran, including the police, who had then gone to the applicant’s family home. Huda had been subjected to physical violence and was summoned to the Court to give evidence in relation to this matter, which carried the death penalty in Iran.  Huda’s husband had threatened to kill the applicant.

8. In that same submission, the applicant claimed that his former migration agent had “mishandled his case” and had made “many mistakes in the 866 form and the statement”.[7]

   [7] CB 116

Tribunal decision

1. Whilst the Tribunal accepted some aspects of the applicant’s claims,[8] it found overall that “key elements” of the applicant’s evidence were not credible.[9]

   [8] CB 192, [112]

   [9] CB 192, [113]

2. With respect to the applicant’s claim that he had been adversely affected by his former migration agent’s failure to attend his interview with the delegate, the Tribunal noted that the applicant had maintained that all the information he had given to the delegate was true.[10]  The Tribunal subsequently found that none of its concerns with the applicant’s evidence were explained by the actions of his former migration agent.

   [10] CB 192, [111]

3. The Tribunal accepted that the applicant was of Arab ethnicity but, by reference to his own evidence, found that he had not been persecuted in the past as a result of his ethnicity and had exaggerated his problems.[11]  The Tribunal did not accept that the applicant was at risk of harm because of his Arab ethnicity or because he only acquired Iranian citizenship in 2010.[12]

   [11] CB 193, [116]

   [12] CB 194, [118]

4. With respect to the applicant’s claims relating to his desire to live a Western lifestyle, the Tribunal was not satisfied that the applicant had suffered serious or significant harm in the past from the Basij or other Iranian authorities.[13]  The Tribunal referred to DFAT country information which indicated that many Iranians were now “Westernised” but that some Iranian youths experienced low-level harassment from authorities as a result of their lifestyle.[14]  However, the Tribunal found that this country information did not indicate that all youth faced a risk of harm and, on the basis of that information and the applicant’s evidence, found that the applicant did not face a real chance of harm as a result of his youth or lifestyle.[15]

   [13] CB 194, [121]

   [14] CB 194, [122]-[123]

   [15] CB 195, [123]

5. The Tribunal also accepted that the applicant held views that were critical of the Iranian regime. It found that he had not been politically active in the past and that this was because he had not been motivated to do so, and rejected his claim that his lack of political activism was because he feared to speak out. The Tribunal did not accept that the applicant had a genuine interest or desire to engage in political activity of any kind in Iran. It found the applicant was not at risk of harm in the future on the basis of his actual or imputed political opinion.[16]

   [16] CB 195-196, [124]-[125]

6. The Tribunal noted its “serious concerns” with the credibility of the applicant’s claim to fear harm arising from his relationship with a married woman named Huda.[17]  In this regard, the Tribunal referred to various inconsistencies in the applicant’s evidence, including whether the applicant had been formally charged with the crime of adultery.[18] The Tribunal found the applicant’s evidence in relation to whether he was charged with adultery “was vague and shifted over time”.[19]  The Tribunal found the applicant’s evidence that Huda had been charged with adultery was “unpersuasive”.[20]

   [17] CB 196, [126]

   [18] CB 196-197, [127]-[129]

   [19] CB 197, [130]

   [20] CB 197, [131]

7. The Tribunal found the applicant’s testimony to it about the evidence that he believed would be used to prosecute him for adultery was “highly improbable, vague and unpersuasive”.[21] The Tribunal had regard to documentation and photographs submitted by the applicant in support of his claims but found that, even if it were to accept the veracity of those materials, they did not establish the truth of his claimed affair with Huda nor the existence of a court case arising out of that affair.[22]  The Tribunal found that the applicant did not have a genuine fear of harm and decided to apply for protection as he preferred to live in Australia.[23] The Tribunal found that the applicant was prepared to change his evidence in response to the Tribunal’s concerns which were put to him pursuant to s.424AA of the Migration Act 1958 (Cth) (Migration Act).[24]

   [21] CB 197, [132]

   [22] CB 197-199, [132]-[136]

   [23] CB 199, [138]

   [24] CB 200, [139]

8. Overall, the Tribunal found the applicant’s evidence about his relationship with Huda to be “vague, lacking in persuasive detail, and highly improbable” and rejected the applicant’s claim in this respect in its entirety.[25]

   [25] at CB 200, [140]-[141]

9. The Tribunal considered whether the applicant was at risk as a failed asylum seeker. On the basis of country information which it put to the applicant, the Tribunal found that it was not satisfied that the applicant was at risk of harm for this reason.[26] Having considered the applicant’s claims singularly and cumulatively the Tribunal was not satisfied that the applicant met the criteria for protection under s.36(2)(a) and s.36(2)(aa).[27]

   [26] CB 201-202, [142]-[147]

   [27] CB 202-203, [148]-[149]

10. On the basis of its adverse credibility findings and country information to which it referred, the Tribunal found that the applicant was not a person to whom Australia owed protection obligations under either s.36(2)(a) or (aa) of the Migration Act.

The present proceedings

1. These proceedings began with a show cause application filed on 14 October 2016.  At the trial of this matter, the applicant relied upon an amended application filed on 29 May 2017.  There are three grounds in that application, of which only Grounds 1 and 3 were pressed.  The remaining grounds are:

   1. The Tribunal did not make its decision in accordance with law. The Tribunal did not consider all the Applicant's circumstances:

   A - That the Applicant will be persecuted due to his relationship with married women.

   B - That the evidence that the applicant presented to the tribunal (photos with the married women) is by itself is sufficient to cause him to be harmed if return to Iran.

   D - The Tribunal did not take into account the consequences of establishing an illegitimate relationship with married women in Iran, but rather focused on the assessment of the adultery claims without giving any weight to the fact that the applicant and his lover were involved in an evidenced illegal, extramarital relationship which is punishable by the law and the religious bodies in Iran.

   E - The Tribunal did not assess whether the law applies in relation to the applicant's involvement in an extramarital relationship is a law of general application or not, the Tribunal did not assess whether the applicant as an Arab will be dealt with differently through the application of the law against him.

   F - In totality, that the tribunal erred in the assessment of the Applicant claims, the tribunal considered his claim of being persecuted for his relationship with a married woman as separate to his claims of being of an Arab ethnicity, while in fact, both claims should be considered together.

   3. The tribunal decision was unreasonable; the tribunal did not consider the severe punishment for committing adultery in Iran.

   A - The tribunal was presented with lot of country information which talks about the punishments for those who been caught in an extramarital relationship.

   B - The tribunal did not take into account the past experience as it was provided for in

   C - The Tribunal did not take into account the cumulative effects of the past experiences as it was provided for in MILGEA v Che Guang Xiang, the cumulative effects of the past experiences for Arabs and for those who were involved in an illegitimate relationship was not taken into account by the tribunal, rather, the Tribunal assessment separated each issue from the other, although such separation is not fair or logical.

   D - The Tribunal did not take into account that the applicant's illegitimate relationship with a married women in Iran was done in good faith, and not for strengthening the applicant chances of achieving protection outcomes, Sur place claims, as defined by the UNHCR concern a person who was not a refugee when they left their home country but who becomes a refugee due to changes in circumstances in their home country or as a result of their own actions, The Tribunal did not take into account that the applicant's relationship with a married women occurred prior to his arrival to Australia , the consequences of this relationship developed to put the life of the applicant at risk, the Tribunal did not test the “good faith” of the applicant, hence, it deprived the applicant from an important factor when it comes to the determination of his claims .

   (errors in original)

2. The only evidence before me is the court book filed on 28 April 2017.  Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their representatives at the trial of the matter on 13 December 2017.

Consideration

Ground 1 – did the Tribunal fail to consider all of the applicant’s circumstances?

1. Ground 1 alleges that the Tribunal failed to consider all of the applicant’s circumstances. The particulars assert that the Tribunal did not consider the applicant’s claim that he had a relationship with a married woman.

2. I prefer the Minister’s submissions concerning this ground. 

3. Contrary to the applicant’s assertion, the Tribunal considered this claim in detail.[28]  However, the Tribunal did not accept that “the applicant ever had an extramarital affair as claimed” and rejected “in their entirety his claims to face harm for this reason”.[29]  This finding, which addressed both the existence of the claimed affair and the legal ramifications arising from discovery of that affair, was dispositive of the factual premise on which the applicant advanced this aspect of his claims. The Tribunal’s findings in this respect were open to it on the material before it, and for the reasons it gave, which largely centred on inconsistencies in the applicant’s evidence and the Tribunal’s broader credibility concerns.

   [28] CB 195, [126]-[141]

   [29] CB 200, [141]

4. Particular (b) is a reference to the series of photographs that appear at CB 129-144. These include photographs of a man and woman together with a child, as well as explicit photographs of a woman.  The Tribunal, at [33][30] of its decision record, set out the contents of the photographs but found that they were not in and of themselves corroborative of the applicant’s claims, in circumstances where there was no evidence regarding the context in which the photographs were taken.[31]  The Tribunal gave the photographs little weight in its assessment of the applicant’s claims. In this regard, it is well-established that it is for the Tribunal to identify such material as it finds relevant to its reasoning and to give it appropriate weight.[32]

   [30] CB 176

   [31] CB 197, [132]

   [32] Tran v Minister for Immigration [2004] FCAFC 297 at [5]–[7] per Kiefel, RD Nicholson and Downes JJ; see also Applicant WAEE v  Minister for Immigration (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ

5. Ground 1 in effect invites the Court to engage in impermissible merits review and is not made out.[33]

   [33] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 272 per Brennan CJ, Toohey, McHugh and Gummow JJ

6. To the extent that the applicant is asserting that the Tribunal failed to consider his Arab ethnicity claim and his adultery claim cumulatively, it is plain that the Tribunal did consider the applicant’s claims cumulatively at [148].[34] 

   [34] CB 202

Ground 3 – is the Tribunal decision unreasonable?

1. The applicant contends that the Tribunal’s rejection of his adultery claim as a fabrication is inconsistent with the substantial evidence presented by the applicant on that claim.  The applicant relies upon the decision of the High Court in Minister for Immigration v SZMDS[35], in particular at [51] where Gummow ACJ and Kiefel J stated:

   The RRT gave no attention to the question of how it could have become known to the family of the first respondent or to anyone else in Pakistan that he was a homosexual, and made no findings upon it.  The absence of the logical connection between the evidence and the reasons of the RRT's decision became apparent when the RRT assumed that a homosexual would be fearful of returning to Pakistan without there being any basis in the material to found this assumption or to counter the possibility that the sexuality of such a person could be concealed from others in the short period of return to the country.  Indeed, the first respondent said that he had made other short visits to his family in Pakistan from the UAE before that of May June 2007.  These visits had not led to any adverse disclosure.

   [35] (2010) 240 CLR 611

2. In my view, the applicant’s contentions in relation to this ground do not rise above a strenuous disagreement with the Tribunal’s reasoning and decision.  In my opinion, the Tribunal’s reasons disclose a logical chain of reasoning between the established facts and the conclusions drawn by the Tribunal from them.  While the applicant had provided documents to support his claim, the Tribunal reasoned (as was put to the applicant at the hearing)[36] that, even taken at their face value, the documents provided by the applicant did not directly support his claims.  For example, although the applicant had provided numerous photographs, none of them established an intimate relationship between the applicant and the woman named Huda.  Further, while the applicant had provided a purported Iranian court document requiring the applicant to attend the Family Court of Iran, the documents did not disclose the nature of the proceedings.  The Tribunal analysed the quality of the applicant’s evidence on this claim and found it wanting.  Likewise, the Tribunal found the oral evidence of the applicant’s brother could be given little weight.  The adverse credibility conclusion reached by the Tribunal at [141] of its decision was open to it on the material before it.  Having rejected the applicant’s claim of being involved in an adulterous relationship in Iran, the Tribunal did not then need to give attention to the consequences for the applicant in Iran if he had been in such an adulterous relationship which had been discovered.

   [36] see [72] of the decision

Conclusion

1. I conclude that the applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error.  I will order that the application as amended be dismissed.

2. I will hear the parties as to costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:     9 February 2018