EUR18 v Minister for Home Affairs

[2019] FCCA 1002

FEDERAL CIRCUIT COURT OF AUSTRALIA

EUR18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1002

Catchwords:
MIGRATION – Applications for protection visas – destruction of passports – inconsistencies in claims made by applicants – no basis for finding that there was a reasonable explanation for destruction of identity documentation – applications dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 5H, 5J, 36, 46A, 65(1), 91WA, 499

Cases cited:

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

First Applicant: EUR18

Second Applicant: EUS18

Third Applicant: EUT18

Fourth Applicant: EUU18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 962 of 2018

Judgment of: Judge Egan

Hearing date: 3 April 2019

Date of Last Submission: 3 April 2019

Delivered at: Brisbane

Delivered on: 3 April 2019

REPRESENTATION

Solicitor for the Applicant: Ms K. Smith

Counsel for the First Respondent: Mr J. Byrnes

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application for review filed on 17 September 2018 be dismissed.

2. The First and Second Applicants 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 962 of 2018

EUR18

First Applicant

EUS18

Second Applicant

EUT18

Third Applicant

EUU18

Fourth Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The first, second and third applicants arrived at Christmas Island on 6 March 2011.  They claimed to be from Iran.  They also claimed, initially, to be stateless.  The first and second applicants are married and claim to be Faili Kurds.  The third applicant is the elder child of the first and second applicants.  The fourth applicant was born in Australia on 17 October 2012.

2. The first applicant and his family members were refused protection visas on 7 June 2011 as part of the process of evaluation of protection claims. On 26 February 2016 the applicants applied for a temporary protection (subclass 785) visa. The Minister lifted the bar under section 46A of the Migration Act 1958 (Cth) (“the Act”) which allowed the application for the visa to be considered as validly made. On 9 March 2017, a delegate of the Minister decided to refuse to grant the applicants protection visas. On 8 April 2017 the applicants applied to the Administrative Appeals Tribunal for a review of the Delegate's decision. On 13 August 2018 the Tribunal affirmed the decision of the Delegate not to grant the applicants' protection visas.

3. On 17 September 2018 the applicants filed an application for judicial review of the decision of the Tribunal made on 13 August 2018.  The grounds of the application for review are set out in the originating application as follows:

   “1. The Second Respondent failed to correctly consider and apply s91WA of the Migration Act in the decision to affirm the refusal of the protection visa application for the First, Second and Third Applicants.

   2. The Second Respondent failed to take into account relevant considerations in the decision to affirm the refusal of the protection visa application for the Fourth Applicant.”

4. The claims raised in the arrival entry interview and the claims raised in the visa protection application were recorded respectively at paragraphs [54] – [100] of the reasons of the Tribunal.  There were also claims raised by way of a supplementary written statement dated 17 March 2016 which were recorded at paragraphs [101] – [114] inclusive of the reasons of the Tribunal.  At paragraphs [115] – [130] of the reasons of the Tribunal, the Tribunal recorded the claims contained in a response dated 31 October 2016 to a natural justice letter sent to the applicants on 27 September 2016.

5. At paragraphs [131] –[140] inclusive of the reasons of the Tribunal, the Tribunal recorded the claims summarised at interview with the delegate.  At paragraphs [141] – [160] of the reasons of the Tribunal, the Tribunal recorded the claims raised in the submission made on behalf of the applicants dated 16 April 2018.  At [161] of the reasons of the Tribunal, the Tribunal recorded that it had before it the following material:

   ·“The applicant’s protection visa application form completed and signed on 11 February 2016, lodged on 30 March 2016 (“visa application”);

   ·Submissions and letters referenced above;

   ·The applicant’s identity documents being certified copies of a birth certificates;

   ·The protection visa decision record (‘delegate’s decision record’) of 9 March 2017;

   ·The review application form which included a copy of the delegate’s decision record;

   ·Country information from the applicant’s submissions and other sources. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on Iran, published on 7 June 2018.

   ·Submission by representative provided to the Tribunal at the hearing which included:

   ·Character reference from Pastor Michael Bennett dated 15 June 2017

   ·Certificate of Baptism

   ·Statement of applicant addressing decision of delegate dated 16 April 2018;

   ·Post-hearing submission from applicants dated 4 July 2018”

6. At [162] of its reasons, the Tribunal found that the applicants were Iranian and that Iran was the country of nationality, as well as the receiving country for the purposes of section 5(1) and section 36(2)(aa) of the Act. At [163] of its reasons, the Tribunal found that it was satisfied, on the basis of the evidence before it, that the applicants did not have a right to enter and reside in any other country. The Tribunal, therefore, found that the applicants were not excluded from Australia's protection obligations under section 36(3) of the Act.

7. The Tribunal confirmed that the hearing before it took place on 16 April 2018.  At [164] of its reasons, it was recorded that at the hearing the applicants were assisted by an interpreter and that they were represented.  At [168] of its reasons, the Tribunal noted that the applicants' claims had evolved over time and that some claims had been recanted and new claims made.

8. At [3] – [12] of its reasons, the Tribunal set out the criteria for the grant of a protection visa and also referred to Ministerial Direction number 56, made pursuant to the provisions of section 499 of the Act, before turning to the applicants' claims and evidence. At [198] of its reasons, the Tribunal noted that the second applicant's story was virtually the same as that of the first applicant. The Tribunal also noted that the first applicant and the second applicant had been interviewed separately. At [199] the Tribunal noted that such stories were quite different from the evidence provided earlier. The Tribunal indicated to the applicants that that could suggest that their evidence was unreliable. The applicants, at [199], both said that they were "now telling the truth".

9. At [200] of its reasons, the Tribunal referenced what the applicants had earlier said in relation to their passports.  The first applicant was recorded as saying in evidence that the passports were handed over to the police who kept them in Surabaya.  The Tribunal noted, however, that in the entry interviews the applicant had said that he handed over his passport at the house they were staying at.  The second applicant said that they handed over their passports to the smugglers on the shore before they got on the boat.  The Tribunal put such inconsistencies to the applicants, again asking them to tell the truth.  The Tribunal stated that it was having difficulty trying to ascertain which story was the truth.  The applicants then said that they did not tell the truth at the entry interview.

10. At [201] of its reasons, the Tribunal indicated to the applicants that it would need to consider the application of section 91WA of the Act. Section 91WA provides as follows:

    “Providing bogus documents or destroying identity documents

    (1) The Minister must refuse to grant a protection visa to an applicant for a protection visa if:

    (a) the applicant provides a bogus document as evidence of the applicant’s identity, nationality or citizenship; or

    (b) the Minister is satisfied that the applicant:

    (i) has destroyed or disposed of documentary evidence of the applicant’s identity, nationality or citizenship; or

    (ii) has caused such documentary evidence to be destroyed or disposed of.

    (2) Subsection (1) does not apply if the Minister is satisfied that the applicant:

    (a) has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and

    (b) either:

    (i) provides documentary evidence of his or her identity, nationality or citizenship; or

    (ii) has taken reasonable steps to provide such evidence.

    (3) For the purposes of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented.”

11. At [202] of its reasons, the Tribunal considered whether the applicants’ visa applications were required to be refused pursuant to the provisions of section 91WA of the Act on the basis that they had disposed of, or caused to be disposed of, or destroyed, an identity document.

12. At [203] of its reasons, the Tribunal noted that the provisions of section 65(1) of the Act provided that the Minister must refuse to grant a visa if the grant was precluded under section 91WA of the Act. The Tribunal noted that there were provisos to such section relating to the applicant having a reasonable explanation for the provision, destruction or disposal of a bogus document, or for the destruction or disposal of documentary evidence, and whether the applicants had either provided documentary evidence of their identity, nationality or citizenship, or whether the applicants had taken reasonable steps to provide such evidence.

13. At [208] of its reasons, the Tribunal stated that having considered all of the evidence, the Tribunal found that the applicants caused the disposal of their passports being documentary evidence of their identity, nationality or citizenship for the purpose of hiding their identities.  At [209] of its reasons, the Tribunal posed the question as to whether the applicants had a reasonable explanation for disposing of documentary evidence of identify.  At [210] of its reasons, the Tribunal recorded that it had asked the first applicant whether he had an explanation for disposing of his passport.  At [211] of its reasons, the Tribunal recorded that the applicant had replied that everyone was told that they would have to destroy their passports closer to Christmas Island.  The Tribunal asked where the applicant was when he was told that, to which he replied that they were at Bogor when they were told they would have to destroy their passports.  The applicant also said that they would be given advice about what they had to say in Australia.

14. The Tribunal then traversed with the applicants the circumstances in which the applicants had allegedly escaped from police and other matters associated with their being in gaol in Surabaya.  At [217] of its reasons, the Tribunal noted that the applicants understood the need for them to dispose of their passports, not just based on what the people smuggler had told them, but on the experience of their relatives who had gone on the same path as them earlier.  Such relatives had also claimed to be stateless. 

15. At [219] of its reasons, the Tribunal recorded that it had carefully considered all of the applicants' claims, both individually and cumulatively, before arriving at its decision.

16. At [222] of its reasons, when considering the question of the reasonableness of the explanation for disposing or causing the disposal of the passports, the Tribunal recorded that it had taken into account the fact that destruction of asylum seekers' documentation was commonplace.  It was recorded, by reference to a number of articles, that it was well known that agents or people smugglers who arranged unauthorised passage for refugees would confiscate or order identity papers to be destroyed.  At [224-227] inclusive of its reasons, the Tribunal noted its responsibilities when assessing evidence presented to it for the purposes of making findings on credibility.

17. The Tribunal noted that throughout the hearing the Tribunal had emphasised to the applicants that, given the history of their claims, and the fact that they had recanted their original claims, and then made a new set of claims, their credibility would be a serious consideration in the success or otherwise of their visa applications.  At [228] of its reasons, the Tribunal noted that the applicants had admitted that they had previously lied about their claims.  At [229] – [236] of its reasons, the Tribunal considered the circumstances in which the applicants had said that they had disposed or their passports.

18. At [236] of its reasons, the Tribunal found that it did not accept that the first applicant was fearful for his life or the safety of him or his family when obeying an instruction to hand over his passport.  It was also there recorded that the applicant had stated in his written statement that he and the second applicant had discussed how they would claim that they were stateless when they were at a house after just having arrived in Indonesia.

19. At [236] of its reasons, the Tribunal noted that it had discussed with the applicant that he knew that he was disposing of his passport for the purpose of hiding his true identity.  The Tribunal found that the applicant was prepared to do what was required to protect his alleged non-identity.  The Tribunal also noted that the first applicant had lied on a number of occasions during the course of the visa application process as well as subsequently.

20. At [238] and [239] of its reasons, the Tribunal found that the first, second and third named applicants did not have a reasonable explanation for disposing of documentary evidence of their identity, nationality or citizenship. For those reasons, the Tribunal found that section 91WA(1)(b) applied to the first, second and third named applicants and that, therefore, the grant of the visas to those applicants ought properly to be refused. The Tribunal then went on to discuss the claims of the fourth named applicant, who was born in Australia and who was aged five years at the time of the hearing.

21. At [246] of its reasons, the Tribunal asked the applicants where they would live if they had to return to Iran, to which they replied that they would return to Ilam, which was said to be in a Kurdish-speaking area.

22. At [247], the Tribunal noted the fourth applicant’s claim to access education as being a basis for his application being granted.  The Tribunal referred to country information.

23. At [249] of its reasons, the Tribunal suggested to the applicants that it appeared from relevant country information relating to health and education that, as an Iranian, the fourth applicant would be entitled to a full education of a high standard and that he would also have access to a health service.

24. At [250] - [255] of its reasons, the Tribunal dealt with the question of Christianity.  It referred to country information as suggesting that non-practising Muslims were unlikely to come to the attention of authorities unless they made a public statement attesting to their lack of, or rejection of, the faith.  It also recorded that the first applicant, who was said to have recently converted to Christianity, would not appear to have a problem in Iran, as he had not come to the attention of the authorities for political activities and, further, because the applicant had given evidence that he would maintain a low profile if returned to Iran.

25. At [256] of its reasons, the Tribunal raised the issue of whether the fourth applicant might be regarded as a Feyli Kurd, and it explored whether there might be any issue with that.  The Tribunal shared with the applicants a summary of country information which was to the effect that DFAT had not been aware of specific instances whereby authorities had singled out Feyli Kurds for mistreatment, regardless of the category to which they belonged.

26. At [257] of its reasons, the Tribunal also noted country information which suggested that Iranian authorities paid little attention to failed asylum seekers on their return to Iran, the Tribunal expressing its finding at [258] of its reasons that the applicants would not face the risk of coming to the attention of the authorities if returned to that country.  As to the applicants’ assertion that they were afraid of corporal punishment, it was noted that country information concerning the treatment of returnees to Iran was to the effect that the Iranian authorities paid little attention to failed asylum seekers.

27. At [261] of its reasons, the Tribunal noted that country information suggested that the Iranian authorities would have had little interest in, and would pay little attention to, any of the activities of the applicant since his arrival in Australia, including whether he had converted to Christianity, or whether he had lived in a Western culture.  Insofar as the fourth applicant was concerned, it was noted that the fourth applicant would have no cause for concern in terms of his suffering harm upon return to Iran and, further, that the authorities would have no interest in him if so returned.

28. At [264] of its reasons, the Tribunal recorded that it was not satisfied that there was a real chance that the fourth applicant would be at risk of serious harm by reason of race, religion, nationality, membership of a particular social group or political opinion if he was returned to Iran at the time of the decision, or in the reasonably foreseeable future. The Tribunal, at [265], found that it was not satisfied that the fourth applicant was a person in respect of whom Australia had protection obligations pursuant to the provisions of section 36(2)(a) of the Act.

29. Having considered all of the claims made on behalf of the fourth applicant, both individually and cumulatively, the Tribunal found, at [270] of its reasons, that it was not satisfied that there were substantial grounds for believing, as a necessary and foreseeable consequence of the fourth applicant being removed from Australia to Iran, that there was a real risk that the fourth applicant would suffer significant harm as defined in section 36(2A) of the Act. The Tribunal, therefore, found that the fourth applicant did not satisfy the criteria as set out in section 36(2)(aa) of the Act.

30. At [271] of its reasons, the Tribunal found that there was not a reasonable fear of persecution, nor was there a well-founded fear of persecution, as required pursuant to the provisions of section 5J of the Act, and that, therefore, the fourth applicant was not a refugee within the meaning of section 5H of the Act.

31. At [273] of its reasons, the Tribunal found that it was not satisfied that any of the applicants was a person in respect of whom Australia owed protection obligations. It specifically found that section 91WA(1)(b) prohibited the grant of a visa to the first applicant, the second applicant and the third applicant. The Tribunal also found that the fourth applicant did not satisfy the criterion as set out under the Act, and it affirmed the decision of the delegate not to grant the applicants protection visas.

32. It cannot be said that no other rational or logical decision-maker could not have made the same decision as the Tribunal in this case.  As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:

    “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.”

1. Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered 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.”

2. No jurisdictional error has been established on the part of the tribunal by the applicant.

3. The application for review is without merit and is dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:  

Date:  24 April 2019