EUV17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 822
•5 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EUV17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 822
File number(s): SYG 3352 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 5 September 2024 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision made by the Immigration Assessment Authority (Authority) affirming decision not to grant applicant a Temporary Protection visa – whether Authority failed to properly consider a claim – whether the Authority erred in finding there had been a variation in the applicant’s claims for protection – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5H, 36(2)(aa), 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Sch 2
Division: General Number of paragraphs: 29 Date of last submission/s: 21 August 2024 Date of hearing: 29 May 2023 Place: Sydney Counsel for the Applicant: Mr B Zipser Solicitor for the Applicant: Alkafaji Lawyers Pty Ltd Counsel for the First Respondent: Ms N Maddocks Solicitor for the First Respondent: Sparke Helmore Lawyers
Table of Corrections 6 September 2024 In order 2 of the judgment, the reference to the “second” respondent has been corrected to show “first” respondent. ORDERS
SYG 3352 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EUV17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
5 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs set in the amount of $8,371.30.
THE COURT NOTES THAT:
A.These Orders have been amended pursuant to r 17.05(2)(g) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
Two questions arise on this application for remedies under s 476 of the Migration Act 1958 (Cth) (Migration Act) in relation to a decision the second respondent (Authority) made affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Temporary Protection visa (TPV). The first is whether the Authority properly dealt with a claim arising out of the applicant’s statement that a terrorist whom the applicant’s brother had arrested had been sentenced to death. The second is whether the Authority erred in finding that the applicant had varied his claims.
To be in a position to consider these questions, it will be necessary to set out the claims for protection the applicant made, and the Authority’s reasons for affirming the delegate’s decision not to grant the TPV.
CLAIMS FOR PROTECTION
The applicant, a citizen of Iraq, stated his claims for protection on a number of occasions. The first occurred in an “Unauthorised Maritime Arrival and Induction Interview” (UMAI Interview) on 5 September 2013. Information the applicant provided during that interview is recorded in a document titled “Unauthorised Maritime Arrival & Induction Interview” (UMAI Document).[1]
[1] CB1-15
The UMAI Document records that “[t]his interview is being conducted at Client (Christmas Island), Interviewer and Interpreter (Curtin)”, which indicates the interview the document records occurred over the telephone. After recording the name of the applicant, and noting that the interview is being conducted with the assistance of an interpreter, the UMAI Document further records the following:[2]
[2] CB1
Important Information
I need information about you and your arrival in Australia. This interview will be recorded. This interview is your opportunity to provide any reasons why you should not be removed from Australia. If you do not answer questions a decision may be made on the basis of the information we have.
You are expected to give true and correct answers to the questions I ask. You should understand that if the information you give at any future interview is different from what you tell me now, this could raise doubts about the reliability of what you have said.
It is open to infer that this information was conveyed to the applicant through an interpreter. The UMAI Document records that the applicant understood what the interviewer said; and also understood the interpreter.[3]
[3] CB 2
A number of the questions provided for in the UMAI Document do not record a corresponding answer. There are no answers, for example, to question 32 (which asks why the applicant left his country), or to question 33 (which asks what the applicant thinks will happen to him if he returns to his country of nationality or residence); or to any other questions that are directed to eliciting information that is relevant to whether the applicant may be a “refugee” within the meaning of s 5H of the Migration Act, or whether the applicant may otherwise be a person to whom Australia owes protection obligations under s 36(2)(aa) of the Migration Act. In answer to question 46a, however, which asks whether there is any reason the applicant cannot be taken to a Regional Processing Country, such as Nauru, or Manus Island, the UMAI Document records the applicant provided the following answer:[4]
I was tortured, broken arm, stitches. The terrorists took my taxi. I was hit on the head and was stabbed by a knife in my hand. I was left. I was threatened by the militia and the terrorism.
[4] CB1-15, at CB8
The Authority, in its reasons, explained the circumstances in which the applicant provided this answer:[5]
The applicant attended an arrival interview on 23 June 2013 [sic] during which the Departmental officer primarily questioned him on the details of his travel from Iraq to Australia. The applicant asked at one point “can I tell my story now?” but the response was “no”. In answer however to the question as to whether there was any reason why he could not be sent to a Regional Processing Centre the applicant stated that he had been tortured and persecuted. He had been threatened by the terrorism and the militia. He was driving his taxi and a group of terrorists took his taxi, they made him drive to Najaf cemetery where they beat and tortured him before taking his taxi. He was hit on the head and stabbed in the hand. He had stitches. His left arm was broken.
[5] CB136, [7]
It is open to infer, and I find, that the UMAI Interview was recorded; the Authority had access to the recording; the Authority listened to the recording; and the Authority set out in its reasons what was recorded in the recording.
The second occasion on which the applicant stated his claims for protection was during the Irregular Maritime Arrival Entry Interview, where the applicant claimed:[6]
I was threatened.
My brother works with the police, he caught a terrorist, of course he handed him in. The next day the terrorists family came to our family home and threatened us. They said that if he was not released then we would be killed. So I left.
This happened in 2013, it was in July.
[6] CB20-32, at CB28
The third occasion on which the applicant stated his claims for protection was in the applicant’s statutory declaration that he submitted when he applied for the TPV. [7] The applicant claimed as follows:
(a)The applicant is a Shia Muslim, and was born in Najaf, a Shia area in Iraq, and a stronghold for Shia militias.
(b)The applicant’s brother is a member of the Iraqi federal police, and belongs to a unit that targets terrorism. In that capacity the applicant’s brother had been given roles tackling terrorism, sometime in Baghdad, but usually in Najaf.
(c)In 2013 the applicant’s brother arrested a member of a particular terrorist group (AAA Group) who was wanted for terrorism charges. The applicant’s brother was assigned the role of arresting the terrorist; and, “due to some tactical reasons”, he did so unaccompanied by another police officer. The applicant’s brother arrested the terrorist in the middle of a market in front of a lot of people.
(d)At night, members of the AAA Group came to the applicant’s family home and requested that the applicant’s brother release the terrorist he had earlier arrested. The members of the AAA Group pushed the applicant to the ground, and threatened to kill the applicant if the terrorist the applicant’s brother had arrested was not released. The members of the AAA Group then hit the applicant on the head and his arm, stating that it was only a warning for the applicant and his family.
(e)The applicant then telephoned his brother and told him about what was happening. The applicant’s brother did not return home after that, and advised the applicant not to go to the police station because some of the police officers were members of the terrorist group. The applicant’s brother also advised the applicant to flee to Baghdad, which the applicant did. The applicant then fled Iraq.
(f)The applicant’s family moved to the applicant’s family home in a rural area to escape retaliation from the terrorist group. The applicant’s brother was transferred to work in the heavily protected green zone.
(g)The applicant said that he feared the AAA Group and “the tribe of the person who was arrested” by the applicant’s brother.
[7] CB76-77
The fourth occasion on which the applicant stated his claims for protection was on 14 June 2017, when he was interviewed by the delegate (PV interview). The applicant provided additional information, which included the name of the terrorist the applicant’s brother arrested, and the tribe of which the terrorist is a member.[8] The applicant also included further details about what occurred when members of the AAA Group came to his family home. The applicant claimed the members pushed the applicant; they hit him on his forehead; they put a gun to his head; and they pulled his arm behind his back, which made the applicant scream because the applicant had fractured his arm when he was a child.[9] After the members of the AAA Group left, the applicant “escaped” from the militia and called his brother to inform him of what occurred. The applicant’s brother advised the applicant to flee to Baghdad. The applicant “went to his friend’s house to sell his car/taxi, and at that time tied bandages to his injuries inflicted by the militia and left for Baghdad”; then the applicant remained in Baghdad for one night before flying to Malaysia.[10]
[8] CB104.8
[9] CB105.4
[10]CB105.4
The applicant raised a new claim at the PV interview. The applicant said that “a year ago” the terrorist the applicant’s brother had arrested had been sentenced to death; members of the AAA Group and of the terrorist’s tribe went to the area where the applicant’s mother and sister lived, and enquired about the whereabouts of the applicant and his brother; and, since that time, the applicant’s uncle moved the applicant’s mother and sister to a place which was like a farm, one kilometre from where the applicant’s uncle lived.[11]
[11] CB105.6
AUTHORITY’S REASONS
The Authority accepted the applicant was born in Najaf; he resided in that city until he departed Iraq; he is of Arab ethnicity, of Shia faith, and an Iraqi national; that he worked as a taxi driver in Najaf;[12] and that the applicant’s brother is a member of the police force working in Baghdad.[13] The Authority, however, noted that, since his arrival in Australia, “there has been a considerable variation in the applicant’s evidence regarding his departure from Iraq”; and the Authority identified those variations as follows:[14]
I am mindful that the applicant was not taken through a full arrival interview in September 2013 however he did insist on giving evidence as to what appears to be a crucial event preceding his departure from Iraq, which was that he was held up by militia or terrorists who beat him and stole his taxi. This would be consistent with his statement (at the PV interview) that he did not drive his taxi for a month or two prior to his departure. His claim as to the home invasion and death threats was not made until 2014 and the addition of the [AAA Group] as agents of persecution occurred in November 2016. At his interviews in 2013 and in 2014 the applicant stated that his family remained in their home in Najaf, now he claims that his mother and sisters relocated to . . . after the events of 18 or 19 July 2013 and his brother to Baghdad.
[12] CB136, [6]
[13] CB137, [13]
[14] CB137, [12]
The Authority also found:[15]
His claim that he fled his home in the middle of the night and did not return is implausible: he does not claim to have taken his belongings, identity documents, money and passport with him as he fled. His claim to have sold his taxi to a friend for $US5,000 the same night that he fled his home is also implausible and appeared to have been thought up while being questioned on the issue of the taxi at the PV interview.
[15] CB137, [12]
On the basis of these findings, the Authority concluded as follows (emphasis added):[16]
Although I accept that the applicant’s brother Haidar is a member of the police force I do not accept that the applicant was in any way targeted due to his brother's actions in carrying out his duties. Due to the inconsistencies and implausibilities as discussed above I do not accept that members of an arrested man’s family or members of the [AAA Group] or any other militia group came to the applicant’s home on 18 or 19 July 2013. I do not accept that his mother and sisters also left the family home in July 2013 and conclude that they remain in that home. I am prepared to accept that his brother Haidar may now work in Baghdad however I am not satisfied that this was due to him being in any danger in Najaf. I do not accept that the applicant was of any interest to any tribal or militia groups prior to his departure from Iraq or that he is currently of any interest to these groups. I conclude that the stated events are fabrications made to further his claims for protection.
[16] CB137, [13]
The Authority then considered whether, given these findings, the applicant was a “refugee” within the meaning of s 5H of the Migration Act, or whether the applicant satisfied the criteria provided for by s 36(2)(aa) of the Migration Act; and, for reasons it is unnecessary to repeat here, the Authority concluded it was not satisfied the applicant was a “refugee”, or that he satisfied the requirements of s 36(2)(aa) of the Migration Act.
GROUND 1
The applicant relies on grounds 1 and 3 of the grounds of application stated in the amended application.[17] Ground 1 is as follows:
The applicant claimed at a protection visa interview in June 2017 that a terrorist who the applicant’s brother . . . had arrested in 2013 had recently been sentenced to death and this caused anger among the [AAA Group] and members of the [terrorist’s tribe] towards the applicant. The IAA did not properly deal with this claim in its decision dated 28 September 2017.
[17] At the commencement of the hearing counsel for the applicant abandoned ground 2
The applicant submits that the claim the Authority did not properly deal with is identified in the following passage from the delegate’s decision record:[18]
“The applicant at this stage, raised a new claim, that a year ago the person his brother . . . had arrested in 2013 had been sentenced to death and as such, the [AAA Group] members/the sentenced person’s tribe went to . . . where his mother and sister lived and enquired about the applicant’s brother . . . and him.”
[18] CB105, [6]
And the Authority itself identified the claim as follows:[19]
The applicant further advised at the PV interview that around a year ago he had spoken to [the applicant’s brother], who had told him that the terrorist that he had arrested on 18 July 2013 had been sentenced to death. This caused greater anger among the [AAA Group] and members of the [terrorist’s] tribe and they redoubled their search for the applicant and [the applicant’s brother].
[19] CB137, [11]
The applicant submits that, although the Authority did “not accept that the applicant was of any interest to any tribal or militia groups prior to his departure from Iraq or that he is currently of any interest to these groups”;[20] this finding was restricted to the events in 2013, and, therefore, did not incorporate the claim the applicant made at the PV interview that, about a year before the interview (that is, in 2016), the applicant’s brother informed him that the terrorist whom the applicant’s brother had arrested had been sentenced to death, thus causing anger to the members of the AAA Group, and members of the terrorist’s tribe.
[20] Applicant’s submissions 28.04.2023, [14(b)]
I do not accept the applicant’s submission. The Authority identified the new claim. The Authority concluded, not only that it did not accept that “the applicant was of any interest to any tribal or militia groups prior to his departure from Iraq”; but also that it did not accept that the applicant “is currently of any interest to these groups” (emphasis added). The Authority’s conclusion in relation to whether the applicant was currently of any interest to any tribal or militia group indicates the Authority directed its mind to events the applicant claimed occurred after he departed from Iraq. This included the claim that arose from the communication the applicant said he received from his brother that in 2016 the terrorist whom the applicant’s brother had arrested had been sentenced to death.
Ground 1, therefore, fails.
GROUND 3
Ground 3 is as follows:[21]
The IAA at [12] stated that another variation in the applicant's evidence was that the applicant did not make a claim about the home invasion and death threats during an arrival interview in June 2013. However, as recorded by the IAA at [7], the purpose of this interview was not to elicit information about the applicant’s claims, and the applicant was expressly told that he could not state his claims. The IAA erred in finding that this was a “variation in the applicant's evidence regarding his departure from Iraq”. The error was a jurisdictional error.
[21] As the applicant correctly notes, the Authority incorrectly stated that that the UMAI Interview occurred in June 2013 when in fact it occurred on 5 September 2013. Nothing turns on this error.
In his counsel’s written submissions, the applicant submits that in stating during the UMAI Interview that: (a) the applicant had been tortured and persecuted; (b) the applicant had been threatened by the terrorists and the militia; (c) the applicant was driving his taxi and a group of terrorists took his taxi; (d) the terrorists and the militia made the applicant drive to Najaf cemetery where they beat and tortured him before taking his taxi; (e) the applicant was hit on the head and stabbed in the hand; (f) the applicant had stitches; and (g) the applicant left arm was broken – the applicant was not, contrary to what the Authority found, “giving evidence as to what appears to be a crucial event preceding his departure from Iraq”.[22] The applicant submits that he made these statements in response to a question in relation to being sent to a Regional Processing Country to persuade the interviewer that the applicant should not be sent to such country. For that reason, the applicant submits, what the applicant stated at the UMAI Interview was not evidence regarding his departure from Iraq by reference to which later evidence the applicant gave about his departure from Iraq could be assessed for consistency.
[22] Applicant’s submissions 28.04.2023, [28]
There are two difficulties with the applicant’s submissions. First, they ignore that during the UMAI Interview the applicant asked “can I tell my story now?”;[23] and they ignore the Authority’s finding that the applicant “did insist on giving evidence as to what appears to be a crucial event preceding his departure from Iraq”.[24] In light of these matters I do not accept the applicant’s submission that his purpose, or his principal purpose, in giving details of the circumstances in which he left Iraq, was to seek to persuade the interviewer that the applicant should not be sent to a Regional Processing Country. Given the Authority found that the applicant insisted on giving evidence about what appeared to be a crucial event preceding his departure from Iraq, I find that the purpose for which the applicant did give evidence of the circumstances in which he claimed he left Iraq was to communicate to the interviewer of the reasons for which he left Iraq.
[23] Applicant’s submissions 28.04.2023, [29](b)
[24] Applicant’s submissions 28.04.2023, [28]
The second difficulty with the applicants’ submissions arises even if it be assumed that the sole purpose for which the applicant, during the UMAI Interview, gave evidence of the circumstances in which he left Iraq was to persuade the interviewer not to send the applicant to a Regional Processing Centre. The applicant’s evidence retains its character as evidence relating to the circumstances in which the applicant departed from Iraq; and it would therefore be evidence by reference to which evidence the applicant gave on later occasions regarding the circumstances in which he left Iraq may be assessed for consistency or inconsistency.
For these reasons ground 3 also fails.
DISPOSITION AND COSTS
I propose to order that the application be dismissed.
As for costs, the parties agreed that costs should follow the event and, subject to the Minister, through his lawyer, informing the Court otherwise, the parties agreed that I should set costs in the amount provided for in Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), those costs being $8,371.30. The Minister has not informed the Court otherwise. I therefore propose to order that the applicant pay the Minister’s costs set in the amount of $8,371.30.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 5 September 2024
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