Eot17 v Minister for Immigration
[2020] FCCA 2282
•19 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EOT17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2282 |
| Catchwords: MIGRATION – Application for safe haven enterprise visa – implausible claims by applicant – no jurisdictional error on the part of the Authority – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H(1), 5J, 36(2)(a), 36(2)(aa), 473CB. |
| Cases cited: CRG16 v Minister for Home Affairs [2019] FCA 374. Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175. Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421. Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. |
| Applicant: | EOT17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 960 of 2019 |
| Judgment of: | Judge Egan |
| Hearing date: | 19 May 2020, 4 August 2020 |
| Date of Last Submission: | 4 August 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 19 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Fisher Dore Lawyers |
| Counsel for the Respondents: | Mr J Byrnes |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Amended Application for review filed on 20 May 2020 be dismissed.
The Applicant’s application for diminution of the quantum of costs ordered to be paid by the applicant be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 960 of 2019
| EOT17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant was a Faili Kurd of Shia Muslim faith born to Iraqi parents. The applicant was born, and prior to departure from Iran, had lived his whole life in Iran.
The applicant arrived in Australia at Christmas Island as an unauthorised maritime arrival on 15 June 2013. The applicant applied for a Safe Haven Enterprise Visa (SHEV) on 5 December 2016.
A delegate to the Minister refused to grant to the applicant the SHEV.
On 8 October 2019 the Immigration Assessment Authority (‘the Authority’) affirmed the decision of the delegate.
On 6 November 2019 the applicant filed an Originating Application for Review of the decision of the Authority. At the hearing before this Court, the applicant relied upon an Amended Application for Review filed on 20 May 2020. The applicant abandoned reliance upon Grounds 1 and 2 of such Amended Application for Review. The grounds relied upon were as follows:
“Grounds of the Amended Application
3. The IAA failed to consider substantial, clearly articulated submissions made on behalf of the applicant.
Particulars
(a) Claims set out in submissions at CB 205 and 390 as to why the applicant’s uncles may have not sought out the applicant to kill him until five years after they had killed his father.
4. The decision was affected by legal unreasonableness, in that it failed to consider whether to invite further information from the applicant as to his activities and movements during the time between his receiving his passport and leaving Iran.
Particulars
(a) The IAA found that the applicant’s delay in leaving Iran after he had obtained his passport was a reason for rejecting his claim to fear harm or persecution at the hands of his uncles.
(b) That issue had not been raised previously with the applicant, and nor had he had the opportunity to give evidence or information about it.
(c) The applicant had information relevant to that issue which the IAA did not have.
5. The IAA misconstrued and misunderstood and therefore failed to consider evidence and claims made by the applicant.
Particulars
(a) Misconstruction and misunderstanding of information about the registration of Iraqi refugees in Iran in documents referred to by the IAA as “DFAT (2010)” and “DIBP (2015)”.
Further Particulars
(i) Those documents do not say that green cards went out of circulation several years ago, but rather that no new green cards were issued from 2001.
(ii) Those documents do not say that green cards could not be renewed after 2002-3. They say that from 2002-3 Amayesh cards became the sole system through which refugee status could be renewed.
(iii) Those documents do not say how long the process of replacing green cards with other forms of registration took.
6. The IAA failed to lawfully consider the applicant’s claims
(a) That he procured a genuine Iranian passport through official channels by means of bribery.”
The written submissions filed on behalf of the applicant recorded that the applicant’s claims were most conveniently set out in the applicant’s statement which was attached to his SHEV application. [1] The relevant part of the statement was as follows: [2]
[1] Paragraph 2 of applicant’s submissions filed on 28 April 2020.
[2] Court Book (CB) pp. 74 – 77 inclusive.
“STATEMENT – [omitted]
(Form 790C – Questions 89-96)
89 – Why did you leave that country (IRAN)?
1. My name is [omitted]. I was born on the [omitted] in Tehran, Iran.
2. I intend for this statement to give an account of my protection claims and related circumstances. It is not intended to be an exhaustive statement of the reasons why I cannot return to Iran. I will provide further information in relation to my protection claims during my Protection visa interview.
3. My parents are Faili Kurds who were both born in Baghdad, Iraq. My father had an Iraqi birth certificate. Both of my parents are Shia Muslims. My family all speak Kurdish and would speak Kurdish most of the time at home. My parents and I had Iraqi Kurdish Faili cards but mine was taken from me by the smugglers in Indonesia.
4. My parents had moved to Tehran in Iran about 30 years ago because of Saddam Hussein's regime and also because my uncle and his friends were all living in [omitted] (an Arab area in Tehran), close to [omitted] in Tehran. As a child, I could not go to an Iranian school because I was an undocumented Faili Kurd from Iraq. I did not have a birth certificate and therefore I was prevented from going to school or attaining any services through the Iranian government. I had to undertake home schooling for 4 years. My teacher's name was Mr [omitted] who taught us Farsi, maths and religious studies etc. As it was an informal school, we did not receive a certificate of completion and after four years, my mother stopped paying for the school. My mother was always unwell. She has always had diabetes and it was not easy for her to cope with the difficult situation we were in. As we were financially struggling, she stopped paying for our teacher. I spent the next four years at home.
5. My father was mainly working in Iraq, in a plastic factory. He would travel from Tehran to Iraq and would come home every 3 to 6 months to spend a week with us. After the plastic factory stopped operating, my father who was a religious, modern and English speaking person became an interpreter for the Americans in Iraq around 2003-2004. He worked as an interpreter for a while until some of his own brothers and their friends murdered him. The brothers who killed my father were religious fanatics who could not accept that my father was working with the Americans. After murdering my father, the same brothers sent a message to my mother calling us heretics and telling us that they would come to kill us. One of these brothers is named [omitted].
6. At that time, I was 16 and 1 had started working to support my mother who was unwell and in need of medication. The next few years, I worked as a retailer with a small stall I had in Tehran's Bazar. During that time, almost every week or second week, the city council authorities would suddenly come and get hold of all my stock and confiscate it. At times, I had to pay bribes to get my stock back. I did not have any documentation and could not complain to the authorities.
7. On several occasions, I was detained by the authorities because of my tattoos which are banned in Iran. As I could not show any identification documents, they interrogated me even longer, accusing me of being a spy, asking why I had tattoos and earrings etc. I have been arrested over ten times. Every time I was kept for several days and on a few occasions I was in detention for a period of a month.
8. When I was about 21 years old, my maternal uncle [omitted] told my mother that he had seen my father's murderer in Tehran and that he had asked him how to find me. As he had already threatened to kill me for being the son of his "heretic" brother, I became very afraid that he would kill me. 1 could not get help from the police because I was undocumented. I could not confront my father's brother neither because he was very dangerous. My mother then suggested that I flee Iran. She sold some of her gold jewellery to use it for my travel overseas. I obtained a fraudulent passport with a different name on it but with my actual picture. I exited Iran with that passport and went to Qatar and then Indonesia.
9. In Indonesia, I took a boat from Surabaya to Australia. However, the boat sank after twelve hours of travel and I spent half a day drifting in the water. It was a very bad situation and we were very fortunate to be rescued by fishermen. We were brought back to Indonesia and sent to jail in Bangil. I was detained for 10 months. The UNHCR came and assessed me as a refugee and got me released. By the time we left Jakarta to Australia, I had lived for 15 months in a very bad situation in Indonesia. I arrived on Christmas Island in around June 2013.
90 – What do you think will happen to you if you return to that country (Iran)?
10. I am fearful that if I am returned to Iran, I will be captured, tortured and killed by my uncles.
11. I also fear to be arrested and tortured again by the Iranian authorities. They have already arrested me many times and because of my tattoos they can easily spot me. I am afraid that my lack of documentation will again get me into serious trouble. They have already accused me of being a spy.
12. Further, if I go back to Iran, I will have identity problems. I am stateless and I will not have full rights to live in Iran. I will be discriminated again and prevented from earning a living. The City council authorities will keep on confiscating my stock at [omitted].
91 – Did you experience harm in that country (Iran)?
13. When I was living in Iran, I was systematically harassed by the authorities. They kept arresting me for petty reasons like my tattoos. They would then interrogate me for long periods of time and beat me. As I am stateless I was in quite a bit of during these interrogations because I could not produce Identity documents and as a result was accused of being a spy.
14. The authorities also prevented me from working and earning a living. When I was a retailer, I had to bribe the authorities to get my stock back because they were confiscating it all the time.
15. I suffer threats against my life from my father’s killer.
92 – Did you seek help within the country (Iran) after the harm?
16. I did not seek help because the authorities were one of the main sources of my problems in Iran. As for the rest of my problems with my father's family, the authorities would not protect me because I was an illegal immigrant. If I approached them for help they would just arrest me and question me.
93 – Did you move, or try to move, to another part of the country (Iran) to seek safety?
17. No, I did not. Moving would not make any difference to my situation.
94 – Do you think you will be harmed or mistreated if you return to that country (Iran)?
18. Yes, I do. As I said above, the authorities have arrested me over 10 times for no real reasons and had continually confiscated my products every one or two weeks. I do not see any reason as to why my situation will be any different if I return to Iran.
95 – Do you think the authorities of that country (Iran) can and will protect you if you go back?
19. As I said, the authorities will not protect me if I go back. The authorities are the ones harassing and discriminating against me.
96 – Do you think you would be able to relocate within that country (Iran)?
20. I would not be able to relocate within Iran because I am not legally allowed to be there. Besides, relocating within Iran would not make my situation safer.”
At [3] of its reasons, the Authority recorded that it had had regard to the material provided to it by the Secretary pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (‘the Act’).
At [4] of its reasons, the Authority recorded that there were exceptional circumstances justifying its consideration of an audio recording of the applicant’s entry interview conducted on 12 July 2013, in circumstances where such recording was not before the delegate at the time of the making of the delegate’s decision.
At [5] of its reasons, the Authority recorded that it had received submissions from the applicant between March 2017 and September 2019 relating to the applicant’s claims. At [6] of the reasons of the Authority, it was said:
“[6] However a great deal of new information was also provided to the IAA in 2017 and 2019. Parts of the 2019 submissions refer to, reiterate or provide further reasoning and details for the new information provided in 2017 and I have taken these submissions into account.”
At [24] of its reasons, the Authority summarised the applicant’s claims for protection as follows:
·“He is a Shi’a Muslim and a stateless, undocumented Faili Kurd, born and raised in Tehran to Iraqi born Faili Kurd parents who had been expelled to Iran by Saddam Hussein.
·His family mainly speak Kurdish at home. He and his parents held Iraqi Kurdish Faili cards (‘green cards’). However his green card was taken by smugglers in Indonesia.
·He was born in an illegal clinic and was not issued a birth certificate or any birth related documents.
·Being an undocumented Faili Kurd from Iraq, he could not attend school or access Iranian government services. He received just four years of home schooling with a private teacher but his family struggled financially and could not afford for him to continue.
·His father worked in a plastics factory in Iraq and would travel home to visit the family for a week every three to six months. The factory ceased operating and from around 2003-04 his father worked as an interpreter for the Americans – until he was murdered in around 2007 by the applicant’s paternal uncles and their friends who were religious fanatics and could not accept that his father was working with the Americans. The applicant was around 16 at the time.
·After killing his father, the applicant’s paternal uncles sent a message to his mother calling them heretics and threatening to come kill them.
·His mother had diabetes and was unwell, requiring medication. The applicant started working at the [omitted], running a small stall to support them.
·He was harassed by city council authorities who, almost weekly, would come and confiscate his stock. The applicant would have to pay bribes for its retrieval. Being undocumented, he could not complain to the authorities.
·On several occasions he was detained by the authorities because of his tattoos. As he could not show any identification documents, they would interrogate him for longer, accusing him of being a spy and asking why he had tattoos and earrings. He was arrested over ten times, and held each time for several days, and a few times, for a month.
·When he was about 21 years old, his maternal uncle told his mother he had seen the father’s murderer in Tehran. He had asked how to find the applicant.
·As the uncle was dangerous and had already threatened to kill him “for being the son of his heretic brother”, the applicant was very afraid. Being undocumented, he could not get help from the police. His mother suggested he flee Iran. He obtained a fraudulent passport bearing his photo but a different name, and he left Iran.
·He had a very difficult time in Indonesia. His boat to Australia sank and they were rescued but taken back to Indonesia where he was jailed for 10 months. He was only released when the UNHCR assessed him to be a refugee.
·He fears that with his lack of documentation, his history of arrests, his tattoos and accusations of being a spy he would be arrested and harmed/tortured/killed, harassed and discriminated against. He will not have full rights and will be prevented from earning a living in Iran. The authorities would also not protect him from his uncles, and he could not return to Iraq because that is where they live.”
At [25] and [26] of its reasons, the Authority set out the relevant criteria for refugee assessment as provided for under s. 5H(1) and s. 5J of the Act.
Having considered the applicant’s claims based on the information before it, the Authority made relevant findings in its reasons as follows:
a)At [27] – that the applicant was a Faili Kurd and a Shia Muslim who had, prior to his departure on 1 March 2012, lived his whole life in Tehran with his Iraqi born parents. At [57] – that the applicant was a citizen of Iran, and that Iran was the receiving country for the purposes of the review;
b)At [28] – that the applicant was not a stateless person;
c)At [29] – [33] – that the applicant’s evidence of his holding a green card up until the time of his departure from Iran in March 2012 was inconsistent with DFAT and DIBP country information which suggested that green cards had been replaced by white cards from 2002, and that Amayesh cards had been the sole system through which refugee status could be renewed since 2002/2003. The Authority found that it was implausible that a registered refugee in Iran would have no awareness of the more recent forms of registration cards, particularly the Amayesh card. The applicant’s claims about holding a green card, and only renewing it after the lapse of several years, was also inconsistent with country information which suggested that the Amayesh card required annual renewal;
d)At [34] – [36] – that the applicant was not prevented from attending school, and that the applicant had fabricated his claims about his lack of education and his claimed undocumented existence. The Authority found the applicant’s tri-lingual reading and writing literacy to be inconsistent with the applicant’s claims that he only had four years of private schooling;
e)At [37] – [38] – that the applicant had not been subjected to anything other than low level harassment over his tattoos and earrings;
f)At [39] – [40] – that it was implausible that the applicant would be unable to work, as claimed, in circumstances where he asserted that he was a holder of a valid green card. The Authority also noted that notwithstanding that the applicant had claimed that he had been arrested and detained on multiple occasions, he had also claimed that he had been able to bribe his way out of trouble even though he claimed that his family had struggled financially to meet the payment of such bribes;
g)At [41] – [47] – that the applicant had not departed Iran in March 2012 on a fake/fraudulent passport. At [43], the Authority referred to country information which suggested that false passports were easily spotted by Iranian authorities by cross-checking passport details against issuance records. DFAT (2016) and Danish Immigration Service (2009) country information also suggested that the use of a forged passport through IKIA Airport “would be extremely difficult”. DIBP (2015) country information suggested that it would be extremely difficult or almost impossible for a stateless Kurd to travel outside of Iran apart from crossing the borders into neighbouring Kurdish territories in Iraq. At [44], the Authority recorded that country information suggested that it would be very difficult to leave IKIA on a fake passport. At [45], the Authority recorded as follows:
“[45] … The applicant’s departure also highlights a further problem with his claims of being arrested more than ten times and repeatedly interrogated over his lack of documentation and accused of being a spy as country information before the delegate also indicates that outgoing travellers are checked at IKIA against records which would indicate if there were any outstanding issues with the government. It is difficult to accept that a person with the applicant’s history of arrests and detention, a suspected spy, would not be flagged in these systems.”
h)At [52] – [54] – that there were inconsistencies in the claims made by the applicant concerning his departure from Iran and the applicant’s claimed UNHCR refugee status. Different birth dates and a false name being provided by the applicant were unable to be logically accepted as part of a legitimate ruse having been adopted by the applicant to avoid detection if returned to Iran. At [53] the Authority noted that though the applicant claimed that he gave a false name because he was afraid of being returned to Iran and identified as having left illegally, there would have been no need for him to be so afraid because, if his earlier claim about his departure was true, there would have been no record of any such departure by reason of the applicant’s assertion that he had departed Iran on a fake/fraudulent passport. At [54] the Authority recorded that it had concerns about the applicant’s evidence as follows:
“[54] I have concerns too, about the evidence the applicant has given in relation to his brother. In his Entry interview, the applicant stated his older brother had left home when he (the applicant) was a child and he and his mother didn’t know where he had gone and had no news of him. He later said in his SHEV application that his brother was in Sweden and in the SHEV interview he explained his mother had heard from his brother about two years earlier (around 2015) but he himself had not spoken to him for five to 10 years. The officers confronted him with some Facebook records suggesting he was in fact in touch with his brother in Sweden he admitted that he was. He said his brother had been in Sweden for the past 11 years and had told him not to mention their contact as it could “stuff up” his application for Swedish citizenship. The applicant has provided no further contextual details about this; I have difficulty accepting that if the applicant’s claims about his family’s statelessness and the difficulties they faced in Iran were true, that those details would place his brother’s status in Sweden at risk. In consideration of all the circumstance, I find it concerning that the applicant previously misled the department in regards to his brother’s circumstances and his ongoing relationship with him.”
i)At [61] – [63] – that there was only a remote chance that the applicant would be harassed by the authorities in relation to his tattoos, dress code or earrings, and that in any event, any consequence of the applicant being intercepted by the authorities because of same would not lead to him suffering serious harm;
j)At [64] – [70] – that the fact that the applicant had remained in Iran for 40 days after he had obtained his passport (remaining in work until February 2012) until his departure on 1 March 2012, was inconsistent with claims made in his entry interview that a paternal uncle was looking for him with the intention of killing him because he was the son of a traitor. (The Authority had accepted that the applicant’s father had been killed by his brothers in around 2007 because he had worked for the Americans as an interpreter). The Authority did not accept that any uncle had the motivation to kill the applicant based on the vague details said by the applicant to constitute a basis for him having a real fear of persecution. The Authority also did not accept that if the applicant was returned to Tehran, the chances of the applicant being located were other than remote. The Authority noted that though the applicant’s father had been killed in Iraq, the applicant had never been to Iraq, and a period of 12 years had passed since the date of the applicant’s father’s death. The Authority at [70] did not accept that anyone had any interest in harming the applicant on account of his father’s work as an interpreter;
k)At [71] – [75] – that the applicant had departed Iran on a genuine passport and therefore would not be perceived as having departed Iran illegally. At [73] it was noted by the Authority that a 2016 DFAT report recorded that a voluntary returnee did not attract much interest from authorities amongst the large regular international movement of Iranians. A person in the position of the applicant who had no passport would only attract attention if they had done something wrong in the past. The fact that the applicant might be identified as a failed asylum seeker because he would be in possession of temporary travel documents would not motivate the authorities to take action against the applicant. In the absence of any evidence that the applicant had an adverse profile with Iranian authorities, or that he was otherwise of any interest to the Iranian authorities, the Authority did not accept that the applicant faced a real chance of harm by reason of his departure from Iran, or as a result of him being a failed asylum seeker returning from Australia;
l)At [76] – 79 – that the applicant did satisfy the refugee criteria as set out in s. 36(2)(a) of the Act;
m)At [80] – [85] – that though there was a remote chance that the applicant could face some low level harassment from authorities as a result of his tattoos and earrings, the Authority was not satisfied that there was a real risk that the applicant would suffer a real risk of significant harm if returned to Iran by reason of such matters. For those reasons the Authority was not satisfied that the applicant had met the relevant s. 36(2)(aa) complimentary protection criteria.
Ground 3
By Ground 3 of the Amended Application for review, it has been claimed on behalf of the applicant that the Authority failed to relevantly engage with a consideration of clearly articulated claims made on behalf of the applicant. [3] Both claims which were said to be clearly articulated related to how the Authority ought to have considered the question as to why the applicant’s paternal uncles had allegedly waited 5 years after the death of the applicant’s father before threatening to kill the applicant.
[3] See CB pp. 204 – 205 (Paragraph 12 of submission of 17 March 2017) and CB p. 390
There is no merit to this ground. At [23] of its reasons, the Authority specifically dealt with the very claims made by the applicant in the applicant’s 28 August 2019 submissions [4] when it said as follows:
[23] The submission states the applicant and representative have not yet had time to obtain other information relevant to the applicant’s claims but they intend to do so and have already made relevant enquiries. One such matter they intend to address is why the applicant’s uncles waited five years after killing his father to seek out the applicant, and the submission provides some alternative possible explanations for this. However while I accept the submission is attempting to challenge assumptions about why the uncles waited five years to come find the applicant, the possible reasons that are given arise from speculation and conjecture. The submission itself notes there is “simply no evidence of the uncle’s movements in these five intervening years and it is unlikely that such evidence would become available.” No actual details have been provided to describe what “relevant enquiries” have been made or how much time they anticipate might be required to obtain supporting evidence. In any event, it is unclear to me what possible evidence the applicant and his representative are hoping to obtain and from their statements discussed above, I consider this has the hallmarks of a fishing expedition. It has now been more than a month since this submission was made on 28 August 2019. I am conducting this review under the Fast Track regime; I am not satisfied the circumstances warrant delaying my decision for this reason.”
[4] CB p. 387 – 390 at para 17.
The Authority clearly engaged in a consideration of the applicant’s claims. It properly observed that the claims made by the applicant relating to the paternal uncle’s actions or inactions were speculative and non-specific. There was nothing concrete to the submissions which required the Authority to do more than consider the claims as made, and then weigh up such claims in the context of all of the other evidence before it. It undertook that task in a diligent manner and did not overlook any aspect of the applicant’s claims. It did not err in the way in which it approached its task. There was nothing in the submissions made on behalf of the applicant which were so fundamental, important or overwhelming to warrant further attention by the Authority than that which it had clearly undertaken. As was said by McKerracher J in CRG16 v Minister for Home Affairs [2019] FCA 374 at [52]:
“[52] Shortly put, as Tracey J observed in Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 (at [60]) (see also DEL16 v Minister for Immigration and Border Protection [2017] FCA 1401 per Derrington J (at [56]-[57])), inevitably there are value judgements involved in determining whether material can be regarded as so fundamental, important or overwhelming that failure to have regard to the material constitutes jurisdictional error. Here, the question of whether the appellant was present or not at the Mosque may be a misapprehension as to a part of the story, but it is not a misunderstanding as to the true nature of the claim. The claim was well understood and was well explored. The reasons for rejecting the claims were clearly expressed. Ground 1 cannot succeed.
Ground 4
The applicant has claimed that it was legally unreasonable for the Authority not to have invited the applicant to provide further information as to the 40 day period between the time when the applicant obtained his passport and the time when the applicant left Iran on 1 March 2012.
The issue as to whether or not the applicant’s failure to depart Iran as soon as he obtained a passport was a question which was considered and dealt with by the Authority as part of broader contextual considerations concerning whether the applicant’s uncles had any intention of causing harm to the applicant and, if so, whether the applicant, by failing to leave Iran as soon as possible after he obtained a passport, acted in a way which was consistent with him being afraid of his uncles and what they might do to him. The Authority was not dealing with new information. It was part of a factual matrix which was dealt with at [66] – [68] inclusive of its reasons as follows:
“[66] I accept the applicant’s father interpreted for the Americans and was killed by his brothers as claimed, in around 2007. I accept too, that he heard his uncles had threatened him and his family following his father’s death. I note the pre-interview submission refers to the murderers sending death “threats” to the applicant but I am not satisfied this occurred more than once, shortly after his father’s death.
[67] While I accept the applicant has been consistent since his Entry interview in his claims that his maternal uncles are searching for him, I nonetheless have concerns about the claimed incident on the Tehran street where his paternal uncle had confronted his maternal uncle and asked how to find him.
[68] The applicant stated in his Entry interview that he started making arrangement for his travel to Australia around the end of 2011. Yet he stated in his SHEV application that he departed the country on 1 March 2012, and in the SHEV interview he left Iran about 40 days (though he didn’t know exactly) after he obtained his passport. I note too that his SHEV application indicates he continued working until approximately February 2012. Overall, the applicant’s evidence indicates that he remained in Iran for a significant period of time after learning that his uncle was looking for him and the evidence does not suggest he went into hiding, relocated or took any particular precautions during this time. Nor does it suggest that the uncle or anyone took any further steps to locate the applicant. Given the uncle’s claimed interest in finding the applicant and the applicant’s claimed frightfulness over the scenario, his ability to remain in Tehran and go about his work during these months leads me to doubt the applicant’s and his family’s fears for his safety and does not support the claim that his uncle was intent on finding and harming him.
At [69] of its reasons, the Authority found that the evidence submitted by the applicant in support of the proposition that the applicant’s uncles intended to kill him, was unpersuasive. The Authority referred to the vague details given by the applicant of the alleged threats made against him. The Authority carefully considered the claim and rejected it.
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
“[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
In DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30], Kenny, Kerr and Perry JJ summarised the principles relating to legal unreasonableness as follows:
“[30] The relevant principles can be summarised as follows.
(1) While findings as to credit are generally matters for the administrative decision-maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) that:
135. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added)
(3) By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 at [37].
(4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 (in a passage approved in CQG15 at [60]) that:
56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny …
(Citations omitted)
(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].”
The Authority did not fall into jurisdictional error. It appropriately considered the applicant’s claims in the context of all of the evidence before it. Having done just that, the Authority was not required to seek further information from the applicant about what happened during that 40 day period. That was a matter which the applicant ought to have addressed more fully in the light of the content of the submissions which had already touched on the issue, and which were before the Authority.
Further, even if the Authority had sought further information from the applicant, it is unlikely that anything submitted by the applicant by way of response could have realistically changed the decision of the Authority. [5]
[5] Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45] and [46]
Ground 5
This ground claims that the Authority misunderstood country information relating to documents issued to registration of Iraqi refugees in Iran.
The Authority specifically dealt with registration cards at [29] – [32] inclusive of its reasons when it said:
“[29] The applicant claims he has never had any documentation recording his birth. He claims the only identity document he has ever held was his green card which his father obtained for him. He claims his green card was valid for up to five years and he had most recently renewed it when he was around 16 or 17 years old (around 2007/08). It bore his photograph from around that time and his real name. His mother used to keep the card for him but she thought he might need it, so he took it with him to Indonesia where it was confiscated by the people smuggler. He claims his mother still has her green card and during the SHEV interview he offered to obtain and provide a copy of hers, although this was never provided during the SHEV process.
[30] The applicant’s evidence is discordant with country information from sources such as DFAT(2010, 2014) and DIBP (2015) regarding refugee registration cards and the rights and responsibilities of registered refugees/card holders in Iran. Information from DFAT (2010) and DIBP (2015) indicates that green cards went out of circulation in Iran several years ago, having been last issued in 2001. They were rendered invalid with the replacement of white cards from2002 and then Amayesh cards which since 2002/03 has been the sole system through which refugee status could be renewed. The information also indicates that – contrary to the applicant’s claims that his green card was valid for up to five years - each of these types of cards has required annual renewal and it was not possible to renew a card after its expiry. DFAT’s Thematic Report (2014) and DIBP Tehran’s 2015 report suggest it is probable that the majority of Faili Kurd refugees in Iran are registered and have Amayesh cards.
[31] These issues were raised with the applicant during the SHEV interview. It was put to him that his claims about having a green card which he renewed every four or five years were implausible because green cards went out of circulation at least 12 to 15 years ago, and were replaced by white cards, and then the Amayesh card, and all of these cards had only ever been issued for one year periods requiring annual renewal. The applicant had no awareness of white and Amayesh cards; he said he didn’t know what they were and he didn’t know anything about this. He then said there was nothing he could do with the card so there was no need for it to be renewed. However, as noted below, country information indicates that valid refugee registration provides for access to healthcare and education and can also provide protection from deportation so it is difficult to accept the applicant would see no need for its renewal. The applicant’s representative has submitted there were a lot of Kurds who did not actually collect their white cards and maybe the applicant’s family was among them. However this conflicts with the applicant’s own evidence that his family had refugee registration green cards which they renewed every four or five years.
[32] I have considered the country information reports from the IRNA and Young Journalists Club do indicates there has been a slow transition to Amayesh cards in some parts of Iran, but as the information relates to the rollover to Amayesh cards in Ilam province, which is remote from the applicant’s remote from the applicant’s and his mother’s home in urban Tehran, I do not find this to be persuasive evidence of the applicant’ still holding a valid green card. Further, both reports also refer to the need for cardholders to renew their cards annually, undermining claims made by the applicant about renewing his card every four or five years and most recently around 2007. I do not find these reports corroborative of the applicant’s claims.”
The Authority did not err in its consideration of the applicant’s claims concerning his ongoing use of a green card in circumstances where such claims were at odds with country information which the Authority had before it. The Authority was entitled to act upon the content of unchallenged country information on that issue. The Court again adopts what was said by McKerracher J in CRG16 v Minister for Home Affairs on the question of how a decision maker was to address the various claims made by applicants which were required to be considered.
To the extent that this ground disputes the validity of the decision as made, it seeks a merits review of the decision of the Authority which this Court cannot entertain. The analysis of this issue by the Authority was clear, and open on the evidence before it. There is no merit to this ground of review.
Ground 6
This ground is based upon the novel submission that the Authority ought to have recognised that the applicant’s passport was a “real passport” [6] – presumably because it had been issued by someone within the Iranian Department of Immigration consequent upon their having been paid a bribe. Such submission was made on behalf of the applicant in circumstances where it was conceded that even though the passport might have had the applicant’s actual photograph on it, the applicant’s other recorded details were false. So much was clear from a reading of the transcript as follows: [7]
[6] Paragraph 34 of applicant’s submissions filed on 28 April 2020.
[7] See transcript paragraphs 589 – 600 – Annexure KLR-1 to affidavit of Kirby Lee Reid filed on
589.
AA
Okay. And tell me how you got that passport, please.
590.
INT
My maternal uncle contacted a person by the name [omitted]. I think he was a smuggler and he’ll know, he knew many people in the department, department of immigration. So, take money and bribe them to issue the passport, to get the passport for us.
591.
AA
Okay. So, the passport was issued legitimately by the Iranian government. Is that correct?
592.
INT
Yes, with someone else’s family’s name but my photo, my picture. It had my picture on it, the passport.
593.
AA
Well, so, so, I’ll just ask you, so, all the details, apart from that different between [omitted] and [omitted], everything else was, was your own details, your father’s name, the place of birth? So, it was reasonably close to your own personal details?
594.
INT
But just to find someone close to my family name to be able to issue that passport.
595.
AA
Okay. Who, when the passport was ready by, by the issuing authority which you say is the Iranian government, did you go and pick up the passport yourself or was it mailed to you, or somebody else gave it to you? How, hoe did this happen?
596.
INT
[omitted] brought it for me.
597.
AA
Okay. So, [omitted] picked up the passport from the passport office in Iran and brought it to you. Is that correct?
598.
INT
I don’t know exactly what his name. I just give him the money because that was his job.
599.
AA
Okay, how much did it cost?
600.
INT
About seven million Iranian.
The Authority dealt with the question of the issue to the applicant of a false passport at [42] – [45] of its reasons as follows:
“[42] I accept the applicant departed through Imam Khomeini International Airport (IKIA). The applicant claims he paid someone to acquire a passport for him from the official authorities under the name [omitted], showing his date of birth as one year older than his actual birthdate. In the SHEV interview he said he departed through IKIA in Tehran using his forged passport (with his similar but alias name and date of birth), carrying his green card (bearing his own name) hidden in his bag. He was questioned about the risk of carrying his green card and travelling on a passport in a different name and he said he had been scared about the authorities searching his bag on his way out but he had taken the green card with him because his mother thought he might need it.
[43] Country information from various credible sources considered by the delegate including DFAT (2016) and the Canadian Immigration and Refugee Board (2006) indicate that contrary to the applicant’s claims, people need to present in person to obtain a genuine Iranian passport, and UNHCR has stated that while fraudulent passports can be easily obtained on the black market, they are easily spotted by Iranian authorities with cross-checks against passport issuance records. Information from DFAT (2016) and the Danish Immigration Service (2009) suggests that most Iranians who end up as illegal migrants have left Iran with their original documents and while departure overland through Turkey undocumented is common, as are the use of forged visas or visas obtained through false information, exit from the IKIA with a forged passport would be difficult, although not impossible if bribery were involved. In 2015 DIBP also remarked it would extremely difficult or almost impossible for a stateless Kurd to travel outside of Iran, apart from crossing the border into neighbouring Kurdish territories in Iraq.
[44] The department’s interviewing officers in the SHEV interview put to the applicant that his description of being subject to minimal security checks didn’t ring true with their information about the procedures at IKIA. They also raised with him country information from sources including the Danish and Norwegian (LandInfo) governments indicating it seemed highly unlikely that someone would be able to pass through IKIA on a false passport; the only way would be through the payment of bribes to a number of different individuals along the way; it would be very difficult to leave IKIA on a fake passport. The applicant responded that he knows lots of people (particularly those he knew in Indonesia) who have departed on forged passports and he could put the department in touch with them to learn how they did so. He also said he gave money to the smuggler and maybe the smuggler paid the bribe. He said didn’t know, but maybe the smuggler gave them money to make it easier. Earlier in the interview he had also confirmed that he had not himself paid any money to anyone in the Iran airport.
[45] I have concerns with the plausibility of the applicant taking the risk of departing through IKIA carrying a fraudulent passport and genuine green card, particularly when he claims he did not even carry it on is person in Iran; his mother kept it for him. Given the country information, I also have difficulty accepting the applicant was able to obtain his passport without fronting up to any authorities and I consider it implausible that he would not know if his exit through IKIA was facilitated through the smuggler’s use of bribes. The applicant’s departure also highlights a further problem with his claims of being arrested more than ten times and repeatedly interrogated over his lack of documentation and accused of being a spy as country information before the delegate also indicates that outgoing travellers are checked at IKIA against records which would indicate if there were any outstanding issues with the government. It is difficult to accept that a person with the applicant’s history of arrests and detention, a suspected spy, would not be flagged in these systems.”
It cannot be said that the Authority failed to have regard to all relevant matters concerning the circumstances in which the applicant departed Iran on a false passport obtained through bribery.
This ground of review, based as it was upon a tenuous submission as to what constituted a “real passport”, seeks to attack the decision of the Authority with an eye keenly attuned to error. The Full Court of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 per French, Sackville and Healy JJ said at [46]-[47]:
“[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
There is no merit to this ground of review.
The applicant has failed to establish jurisdictional error on the part of the Authority.
The Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 19 August 2020
(Paragraph 17 of submission of 28 August 2019). per Bell, Gageler and Keane JJ. 15 May 2020.
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