DZADD v Minister for Immigration - [2012] FMCA 696

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZADD v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 696

MIGRATION – Review of decision of Independent Merits Reviewer – where findings and reasons based on adverse credibility finding – where claims not subject to credibility rejected on basis of independent country information the substance of which was provided to applicant – whether error of law.

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant:

DZADD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

DNG 16 of 2012

Judgment of:

Raphael FM

Hearing date:

31 July 2012

Date of Last Submission:

31 July 2012

Delivered at:

Sydney

Delivered on:

31 July 2012

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,700.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

DNG 16 of 2012

DZADD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Iran who arrived in Australia on 2 December 2012 as an unauthorised boat arrival. On 30 January 2011 he made a request for a Refugee Status Assessment. On 28 April 2011 the assessor found that the applicant did not meet the definition of a refugee as set out in Article 1A of the 1951 Convention relating to the status of refugees and its 1967 protocol. On 20 May 2011 the applicant sought an independent merits review of that decision. He attended a hearing together with his advisor who also made written submissions to the Reviewer. On 23 January 2012 the Reviewer recommended that the complainant not be recognised as a person to whom Australia had protection obligations under the Convention.
The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations was the Convention one of imputed political opinion. This came about in two ways. Firstly, he said, because his father had been arrested following his return to Iran from a trip to Germany and Israel. His father had been released from detention into hospital approximately six months later and after one week, he died in the intensive care unit at the Emam Hossein hospital in Tehran. The second ground upon which the applicant claimed Australia’s protection was as a returned asylum seeker from a Western country.
The applicant told that in 2009 his father, who was a carpet dealer, travelled to Germany for business. He said that he did business in Germany with some Israelis and told them that he would like to visit Israel. They were travelling to Israel and they took him with them. After he returned from Israel he remained in Germany for some time before returning to Iran in October 2009. The applicant told that upon his arrival at the airport he was taken away by security and was not seen again until April 2010 when the family received a call advising them that he was in hospital.
The applicant told that after his father died, the family arranged for a lawyer to try and find out what had happened to the father. The lawyer made some investigations and advised that the father had been taken by security because of his visit to Israel and that the family would be considered to be spies for Israel and that they should make an urgent escape from Iran. The applicant made arrangements to travel and left Iran on 9 November 2010 travelling via Malaysia and Indonesia to Christmas Island.
The Reviewer questioned the applicant upon his story and pointed out to him certain inconsistencies in the statements that he had given on his arrival, to the status assessment officer and to the Reviewer. These inconsistencies related to such things as the airline upon which the father was alleged to have flown back to Iran, the story that the applicant put about his father’s arrest being seen by an acquaintance, the date upon which his father was released and died, the reasons that his father would go to Israel at all and the applicant’s claim that he had had two passports, neither of which were entirely legitimate and one of which was used to make an earlier visit to Thailand.
The reviewer also raised with the applicant some independent country information that he had about the Iranian immigration control at Imam Khomeini Airport, which seemed to indicate that it would be difficult to travel through that airport with a false passport or a photo substituted passport. The Reviewer raised with the applicant independent country information that he had about the ability of a person who had left Iran legally and illegally to return to that country and what might occur to them when they did arrive.
In his findings and reasons which commence at CB162, the Reviewer sets out in some detail the concerns which he has as to the applicant’s evidence. These concerns took into account the applicant’s explanations for the inconsistency or inaccuracies, but in many cases the Reviewer concluded that:
“[T]he claimant tailored, changed and fabricated his evidence as I tested it and this leads me to have serious concerns with his credibility.” [110] CB164
The Reviewer’s conclusions about the applicant’s evidence are continued at [111-112] CB164 and [113-115] CB165 before finding at [116]:
“In sum, I find the claimant is not a credible witness. I find he has tailored his evidence at various times to suit his needs. I conclude he has conducted his story concerning the reasons he departed Iran in order to seek refugee status in Australia. I reject the entire story about the father travelling to Israel and then disappearing on his arrival at Tehran’s Airport on 30 October 2009. I do not accept that the father reappeared in hospital in April 2010 or the claimed reasons for the father’s claimed death. I do not accept that the father came to the adverse attention of the Etalaat or that he was accused of being a member of the Monafeghin and of being a spy, or that the claimant and family were similarly accused. I do not accept the claimant’s story of getting a false Iranian passport in 2010 in order to depart Iran, as I conclude he had no need to obtain a false passport in order to depart. I conclude he departed Iran on a legal Iranian passport. I do not accept he had come to the adverse attention of the Etalaat or any other Iranian government agents at or before the time he left Iran. It follows that I do not accept his later claim that his mother and sisters have been arrested by the Etalaat, and I conclude he concocted this claim after the RSA decision in order to reinforce his case.”[116 CB 166]
The Reviewer then went on to consider the applicant’s claim that if he returned to Iran as a failed asylum seeker or a person who had departed Iran on a false passport, he would be subject to persecution.
“I conclude the claimant departed Iran legally on a legal Iranian passport and not on a false passport, and so I do not accept that the way in which he departed Iran will cause him any difficulties on his return. I accept that he used a people smuggler to make arrangements to come to Australia by boat from Indonesia, but I do not accept these actions in Indonesia will cause him difficulties on return to Iran.”[117 CB 166]
The applicant was originally detained in Darwin after he had been moved from Christmas Island. On 29 February 2012 he filed an application with this court, seeking review of the Reviewer’s decision. At that time, he received some assistance from the Northern Territory Legal Aid Commission, who put in what can be described as “holding” grounds of application. These were:
“1. The Applicant is awaiting legal advice through the Northern Territory Legal Aid Commission (NTLAC), regarding these judicial review proceedings. The application is filed at this stage to protect the Applicant’s review rights whilst awaiting the provision of legal advice. There is a current grant of legal aid for the provision of this advice.
2. Otherwise, the Applicant contends that the Independent Merits Reviewer denied him procedural fairness and committed legal error.”
The applicant did not receive further assistance from Northern Territory Legal Aid Commission and was later released from detention in Darwin and made his way to Sydney, where it is understood he currently resides. Efforts were made to secure pro bono legal assistance for him but this was unsuccessful; there has been no amended application. In cases of this nature, the court regards it as its duty to read the Reviewer’s decision carefully, but without a mind attuned to the perception of error, to see whether or not it could be said that there were any grounds upon which the court might find the Reviewer either failed to give the applicant procedural fairness or otherwise fell into jurisdictional error.
In cases such as this, where the decision was made based upon a finding of a lack of credibility on the part of the applicant, such error is usually difficult to ascertain. The Reviewer has set out in his findings and reasons the basis of four of the conclusions that he has come to, and these seem, to the court, to be available on the evidence. It is hardly necessary to remind the applicant that decisions relating to the credibility are for the reviewer par excellence: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407.
The claims made by the applicant that were not dependant upon his credibility, the alleged fear of return as a failed asylum seeker, were decided upon the basis of independent country information which, it appears, was discussed with the applicant during the hearing and so the court is unable to find any failure to provide procedural fairness in that aspect of the decision.
The applicant appeared before me today. He informed me that he did not know why his application was rejected; he believed that the Reviewer had made a mistake, that he did not read the detail of the applicant’s claims thoroughly enough or pay enough attention. He told me that he could not go back to Iran as his life was in danger and that his mother and sister were in prison. He told me that he had spent 20 months in detention and was now suffering from what I suspect is post-traumatic stress disorder and was taking antidepressants. He also told me that he had lost his mobile phone.
These matters, whilst being of concern to the applicant, do not illuminate any ground upon which I might find that his claim should be remitted, and I am therefore left with the conclusion that the proceedings must be dismissed and that the applicant must pay the respondent’s costs, which I assess in the sum of $5,700.00.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 10 August 2012