DFV16 v Minister for Immigration

[2017] FCCA 2091

FEDERAL CIRCUIT COURT OF AUSTRALIA

DFV16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2091

Catchwords:
MIGRATION – Application for protection visa – whether Authority under Part 7AA erred in credibility findings – alleged honour killing of wife by her family – whether applicant denied procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473GB, 476

Applicant: DFV16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2980 of 2016

Judgment of: Judge Street

Hearing date: 31 August 2017

Date of Last Submission: 31 August 2017

Delivered at: Sydney

Delivered on: 31 August 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms M Donald
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2980 of 2016

DFV16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 23 September 2016 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Iraq and his claims were assessed against that country. The applicant arrived at Christmas Island on 23 August 2012 as an irregular maritime arrival. On 4 November 2015, the applicant made a valid application for a Temporary Protection (Class XD) Subclass 785 visa. The applicant is a Shia Muslim of Arab ethnicity and was born in the Thi-Qar Governorate of Iraq.

3. The applicant claimed to fear harm arising out of the alleged secret marriage to a particular person without the family’s approval. The applicant claimed to fear harm from the family of his former wife, who he alleged killed his wife in an honour killing. The applicant claimed that his former wife’s brothers were involved with the Mahdi Army.

4. The applicant claimed that his other wife and children have had to move from place to place to avoid harm from his killed wife’s family and/or the Mahdi Army. The applicant fears harm from his former wife’s family and alleges that the government cannot protect him and he will not be safe because the family, or the Mahdi Army, are influential throughout Iraq.

5. The applicant attended an interview with the Minister’s delegate on 9 March 2016. On 11 August 2016, the delegate refused to grant the applicant a protection visa and found the applicant failed to meet the criteria under the Act.

Immigration Assessment Authority

1. Following the delegate’s decision on 12 August 2016, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review. The letter identified that there were only limited circumstances in which the Authority could receive new information and attached a fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions. The delegate also provided to the Authority, a certificate under s.473GB of the Act in respect of an identity assessment form dated 11 August 2016. No issue arose in the present case in relation to the identity of the applicant.

2. The Authority, in its reasons, identified the applicant’s background to the visa application and had regard to the material referred under s.473CB of the Act. The Authority identified the applicant’s claims. The Authority set out the relevant law in an annexure to the Authority’s decision.

3. The Authority accepted that the applicant married his first wife and has three children with her. The Authority found there were aspects of the applicant’s account and the circumstances that give rise to this application involving discrepancies. This combined with the vague nature and implausibility of key elements of the applicant’s claims led the Authority to doubt the veracity of the applicant’s central claims to fear harm from the Asa’ib Ahl al-Haq (AAH) or the Mahdi Army or his alleged dead wife’s family and tribe. The Authority made reference to the applicant’s explanation as to the difficulty he had recalling events and did not accept that the explanation was adequate in relation to the applicant’s inability to recall a number of significant events in his life.

4. The Authority made reference to the applicant providing significantly different accounts of his departure from Iraq in 2012 in his TPV interview and in his application. In the interview, the applicant indicated he may have travelled to Syria on a number of occasions, rather than visiting Syria only on one occasion as claimed in his application form, as well as indicating in his TPV interview that he may have re-joined the Iraq Security Forces after completing his mandatory military service.

5. The Authority regarded the applicant’s response to inconsistencies in his evidence as being vague and that the applicant attempted to revise his initial responses to be in line with his earlier claim, rather than to clarify the facts. The Authority noted this was in contrast to other matters concerning the applicant’s family, in which he was able to provide accurate dates and addresses. The Authority made reference to the applicant attributing the inconsistencies between the statements he made concerning his second marriage ceremony in his entry interview and the TPV application to difficulties with the interpreter’s accent in his entry interview. The Authority made reference to having reviewed the recordings of that interview which supported the applicant’s claim that there were some issues with interpretation during that interview. For that reason, the Authority identified that it placed no weight on the apparent discrepancy.

6. The Authority then made reference to the applicant’s alleged divorce from his wife, who is the mother of his children, and alleged secret marriage to the person he says was his second wife, who was killed by her family as an honour killing. The Authority made reference to the applicant producing in that regard, the marriage certificate as evidence of his religious marriage to the person he says was killed. The Authority noted that country information identified fraudulent documents are readily available in Iraq and it was as a result of the Authority’s concerns regarding the applicant’s claims as a whole by reason of which the Authority placed limited weight on the document. The Authority found the applicant provided inconsistent evidence about his contact with his first wife and his children during the time that he allegedly lived at a particular location with his alleged second wife.

7. The Authority found there were significant differences in the applicant’s accounts of his departure from Iraq. The Authority made reference to there being no evidence of past interest in the applicant’s first wife and children on the part of the AAH, Mahdi Army or the dead wife’s family, other than for the purpose of locating the applicant and the alleged second wife. The Authority found there was no evidence the AAH, Mahdi Army nor the alleged dead wife’s family tried to kill, or otherwise harm, his first wife or their children in approximately the six month period during which they continued to live at the applicant’s home address, following his alleged marriage to his second wife, who was allegedly killed in June 2012.

8. The Authority also made reference to the applicant providing, in the entry interview on 7 December 2012, a phone number for his first wife, indicating that she would probably answer the phone, and noted that the applicant later stated his first wife and children were moving around for safety. The Authority found it implausible that the AAH, the Mahdi Army or his alleged second wife’s family would decide to kill the applicant’s first wife and children following the alleged second wife’s death and maintain their interest in the first wife and his children until the present.

9. The Authority found the applicant’s evidence regarding the threats posed by his alleged second wife’s brothers and the AAH or Mahdi Army is vague and implausible in key respects. The Authority found the applicant had been deliberately vague in order to sustain the claims that both his alleged dead wife’s family and the AAH, Mahdi Army are interested in him and his wife and children. The Authority found the applicant’s claim that the alleged dead wife’s tribe wished to harm the applicant and his family implausible. The Authority found it highly probable that the applicant’s family continued to reside at the applicant’s former address.

10. The Authority did not accept the applicant’s claims. The Authority found the applicant’s claims had been presented with a view to enhancing his claims for protection. The Authority did not accept that his alleged second wife was killed by her brothers or the AAH, Mahdi Army, or that the applicant and his family are or were of interest to the AAH, Madhi Army, alleged second wife’s family or the second wife’s tribe. The Authority found that the applicant’s wife and children continued to live at the applicant’s former home.

11. Having considered the totality of the evidence, the Authority was not satisfied the applicant had a relationship with the second wife as alleged, and did not accept the applicant married or had a secret romantic relationship with the alleged second wife. The Authority found the applicant’s alleged second wife’s brothers are not in the AAH or Madhi Army, and that the alleged second wife was not killed by her brothers or members of the AAH or Madhi Army.

12. The Authority found the applicant and his family had not been threatened by the AAH, Madhi Army or the alleged second wife’s family or tribe, and are not of ongoing interest to the AAH, Madhi Army or the alleged second wife’s family or tribe. The Authority was not satisfied there was a real chance that the applicant would be harmed by the alleged second wife’s family or tribe or the AAH, Madhi Army. The Authority found the applicant did not have a well-founded fear of persecution on this basis.

13. The Authority found that the chance of the applicant being harmed by reason of his Shia faith or a result of sectarian or other violence to be remote and less than a real chance of persecution required to meet s.5J(1)(b) of the Act. The Authority found the applicant didn’t have a well-founded fear of persecution on these grounds. The Authority considered the applicant’s chance of harm in relation to being a failed asylum seeker returning from the West. The Authority was not satisfied there was a real chance the applicant would be harmed on the basis that he is a failed asylum seeker who has lived in Australia.

14. The Authority found the applicant did not meet the requirements of s.5J(1)(b) of the Act and does not have a well-founded fear of persecution under s.5J(1) of the Act. The Authority found the applicant failed to meet the definition of refugee under s.5H(1), and that the applicant did not meet the criteria under s.36(2)(a) of the Act.

15. The Authority was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk the applicant would suffer significant harm. The Authority found the applicant didn’t meet the criteria under s.36(2)(aa) of the Act.

Proceedings in this Court

1. On 27 April 2017, the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. The grounds in the application are as follows:

   1. The Second Respondent denied the Applicant procedural fairness in circumstances where the

   Applicant was unable to make submissions regarding the accuracy of the transcript of his first

   entry interview.

   Particulars

   (i) The Second Respondent attributed the inconsistency between statements the Applicant

   made concerning his second marriage ceremony in his entry interview and his TPV

   application to difficulties with the interpreter's accent in the entry interview (Paragraph 9

   of the IAA Decision)

   2. The Second Respondent ignored or misconstrued relevant evidence in finding the Applicant was

   not in a relationship with Eman in that it ignored the following.

   Particulars

   (i) The Second Respondent has failed to take into account the relevant material being the

   marriage certificate as evidence of the religious marriage to Eman.

   (ii) The Applicant provided consistent evidence as being in a relationship with Eman for 8

   years before his first marriage in 2008 and his subsequent marriage to · Eman on 5

   November 2011.

   3. The decision of the Second Respondent in finding that the Applicant had provided no evidence

   why the AAH!Mahdi Army would decide to kill his family or still wish to do so is unreasonable

   and/or illogical and/or irrational.

   Particulars

   (i) The Second Respondent accepted Eman's family rejected the Applicant's initial proposal

   to Eman because he was married, but the Second Respondent's decision does not accept

   the Applicant would face harm from Eman's family.

   (ii) The Applicant's claim that Eman's two brothers had performed an honor killing and are

   now targeting the applicant supports the applicants claims that his family is a target of the

   AAH/Mahdi Army.

3. At the commencement of the hearing today, the Court explained to the applicant that this was a final hearing to determine whether the Authority’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either excess of statutory power or denial of procedural fairness. The Court explained that, in summary, this meant the Court was considering whether the Authority’s decision was unlawful or unfair.

4. The Court explained that if satisfied the Authority’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Authority’s decision was unlawful or unfair, the application would be dismissed with costs.

5. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent, and then give the applicant an opportunity to put submissions in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

Applicant’s Oral Submissions

1. From the bar table, the applicant maintained that there were discrepancies with the interpreter and that this adversely affected the assessment of his credit. The applicant maintained that the marriage certificate was genuine and was not forged. The applicant maintained that his second wife had been killed and that her brothers were involved with the Madhi Army, and that through their belonging in that army, they represent authority or power in that organisation.

2. The applicant maintained that his wife and children had fled because of the risk of honour killings. The applicant alleged that it is common and well-known in Iraq that revenge may be carried out on an older or a younger person. The applicant alleged that his second wife had been killed because of him and that her family did not accept him marrying them without their agreement, which was considered a shame, and it was because of that she was killed and that is why they are seeking to kill the applicant. The applicant maintained that they had threatened to kill his children.

3. The applicant sought to explain the religious marriage ceremony giving rise to the certificate. The applicant also referred to having encountered a number of illnesses in Australia from fits, epilepsy, heart and mental illness. The applicant maintained that he had suffered by reason of leaving his children and asserted that his story, as to what happened in Iraq, was true and that he did not lie or fabricate what he had told the Authority.

4. This Court has no power to revisit the merits of the applicant’s application. This Court does not have the power to make fresh findings of fact. The Court is confined to considering whether there is relevant legal error by the Tribunal. The Court cannot decide the case on compassionate grounds and does not have the power to do so. The applicant’s submissions in relation to the problem with the interpreter were the subject of express consideration by the Authority. The Authority accepted the applicant’s claim in that regard and identified it placed no weight on the discrepancies in relation to his entry interview.

5. The Authority’s reasons reflect focus on other inconsistencies, implausibility and concerns in relation to applicant’s claims. Those adverse findings by the Authority were open on the material before the Authority and cannot be said to lack an evident and intelligible justification.

6. In relation to the marriage certificate, the Authority did not find that the applicant had forged the certificate, but placed no weight upon it, given the prevalence of fraudulent documents in Iraq. The Authority took into account concerns in relation to the applicant’s credit in respect of his claims. There was no error by the Authority in its treatment of this certificate.

7. The Authority, on the face of its reasons, correctly understood the applicant’s claims and made findings dispositive of those claims. There is no basis to find that the Authority misunderstood the applicant’s claimed fears in relation to the alleged dead wife’s brothers and their involvement in the Mahdi Army. Those adverse findings were open to the Tribunal on material before the Tribunal and nothing has been identified by the applicant to establish that the Authority misunderstood the applicant’s claims.

8. The applicant’s concern in relation to interpreters was expressly considered and addressed by the Authority. On the face of the Authority’s reasons, the Authority did not place weight on the discrepancies arising from his entry interview. Nothing said by the applicant from the bar table identified any jurisdictional error by the Authority. The applicant’s submissions, in substance, invited this Court to engage in an impermissible merits review which this Court has no power to do.

Ground 1

1. In relation to ground 1, on the face of the material before the Court, the Authority complied with its statutory obligations in the conduct of the review.

2. Further, on the face of the material before the Court, the Authority provided the applicant with an opportunity to put on new information and submissions by the sending of the letter of 12 August 2016 that complied with its obligations of procedural fairness in the conduct of the review and at Part 7AA.

3. Due to the provisions of Part 7AA and, in particular, s.473DA, the Authority was not required to invite the applicant to respond to its concerns in relation to the applicant’s claims. The applicant had an opportunity to put on submissions but did not do so.

4. The Authority took into account the alleged inconsistency due to interpreter issues. The Authority identified that it placed no weight on those apparent discrepancies. The Authority also provided reasons in relation to its concerns as to the applicant’s second marriage and the killing of his alleged second wife by her family and the applicant’s claims in that regard. Those reasons did not involve a determination of the applicant’s credit based on discrepancies with his first entry interview. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the Authority clearly referred to the marriage certificate and decided to give the same little weight because of the concerns in respect of the applicant’s evidence and having explained the prevalence of fraud. That was a finding open to the Authority and does not reflect the Authority ignoring or misunderstanding evidence. The finding in relation to the inconsistency in the applicant’s evidence concerning the alleged second wife was open to the Authority and does not reflect any misconstruction of the relevant evidence. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, it was a matter for the Authority to determine the credibility of the applicant. The Authority was not required to accept the applicant’s evidence in relation to the AAH or the Madhi Army. The findings made by the Authority in that regard cannot be said to be illogical, irrational or unreasonable. Ground 3, in substance, seeks to take issue with the adverse credibility findings and does not identify any jurisdiction error. No jurisdictional error is made out by ground 3.

2. The application fails to make out any jurisdictional error. Accordingly, the application is dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  12 October 2017