EYI17 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1320
•2 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EYI17 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1320
File number(s): SYG 3449 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 2 December 2024 Catchwords: MIGRATION – Whether Tribunal properly considered evidence of applicant’s cousin in related reviews – whether Tribunal failed to put information to applicant from cousin for comment pursuant to s 424A Legislation: Migration Act 1958 (Cth) ss 46A, 65 Cases cited: Anderson v Director-General of the Dept of Environmental and Climate Change (2008) 251 ALR 633
ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426
MZXBM v Minister for Immigration and Citizenship & Anor 162 FCR 454
NBKT v Minister for Immigration and Multicultural Affairs & Anor 156 FCR 419
SAAP v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 228 CLR 294
SZBYR v Minister for Immigration and Citizenship (2007) 127 CLR 297
VAAD v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCAFC 117
Division: General Federal Law Number of paragraphs: 71 Date of last submission/s: 2 October 2024 Date of hearing: 27 March 2024 Place: Sydney Counsel for the Applicant (until conclusion of hearing): Mr Richard Chia, on a direct access basis Counsel for the Respondents: Ms Rachel Francois Solicitor for the Respondents: Australian Government Solicitor ORDERS
SYG 3449 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EYI17
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
2 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application filed on 17 October 2017, as amended, is dismissed.
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
JUDGE GIVEN:
Before the Court is an application seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 17 October 2017, affirming a decision of a delegate of the first respondent (delegate) to refuse to grant the applicant a Protection (Class XA) visa (visa) pursuant to s 65 of the Migration Act 1958 (Cth) (Act).
BACKGROUND
The following background is derived from the parties respective written submissions and, unless otherwise indicated, does not appear to be in dispute.
The applicant claims to be a stateless Faili Kurd and to have been born in Baghdad, Iraq on 20 January 1980 (CB 77 at [1] to [2]).
The applicant arrived in Australia on (or about) 13 April 2012, as an irregular maritime arrival, having left Iran via Imam Khomeini Airport, transited through Qatar and Indonesia and then travelled to Australia by boat (CB 255 at [5]).
On 22 July 2012, the applicant applied for the visa following a Ministerial determination made pursuant to s 46A(2) of the Act, to lift the bar and allow him to so apply.
Applicant’s protection claims
The applicant claims to be an only child and that, when he was six months old, his parents were both killed in a car accident. Following the death of his parents the applicant was adopted by his aunt (N) whom, together with her husband, decided that because the situation for Faili Kurds and Shia Muslims was not good in Iraq, they would take their family (including the applicant) to the Islamic Republic of Iran. Among the family unit was a particular cousin (Cousin). The applicant says his Cousin referred to him as being his stepbrother. In this context, there are the interchangeable references to brother and cousin throughout the various decisions.
The applicant claims that after leaving for Iran when he was a baby, he only returned to Iraq on two occasions. The first occasion was in 1991 when, following the death of her husband in a work-related accident, N brought the applicant back to Iraq, only to leave again two weeks later after the Shia intifada started. On return to Iran, they were initially placed in a refugee camp before being given an “green expelled Iraqi card” (green card) (CB 77).
The second occasion on which the applicant claimed to have returned to Iraq was in 2005 when the Iranian authorities deported him and his Cousin, and they returned to their grandparents’ village. The applicant claimed that he and the Cousin were able to return to Iran when, with the help of another cousin, they presented fake Iraqi passports to the Iranian Embassy in Baghdad, and obtained a “pilgrimage visa” (CB 79).
In a document entitled “Summary of Claims” which accompanied the visa application, the applicant’s (then) migration agent said as follows:[1]
[The applicant] satisfies the refugee criteria of nationality and membership of a particular group. As a Faili Kurd, he experiences discrimination and a lack of authoritative support that is not extended to others living in Iran. This goes beyond his illegal status to reflect specifically his ethnicity as a Kurd.
He also is a member of the group of displaced people who constitute illegal refugees in Iran. As such, his basic needs and those of his children - health, education, the opportunity to work and be self-supporting, and more - are denied members of this identifiable group. The lack of any form of recognition let alone being accorded meaningful ID prevents access to essentials, in a way that is not accorded to others in Iran.
Having fled Iran he feels unsafe and fearful for his future as he used an illegal passport and may now be regarded as a spy. He fears lifetime imprisonment if he is returned.
[1] Court Book (CB) at 83.
The applicant’s protection claims are somewhat intertwined with those of his Cousin. To the Court, the applicant emphasises that (error in original):
From their childhood in Iran to the present day in Australia, the applicant has been accompanied by, and their claims have involved, the Cousin (also referred to as the applicant’s “brother”). The applicant arrived in Australia on the same boat and applied for a protection visa, applied to the Tribunal for review, and applied to this Court for judicial review at the same times as the Cousin.[2]
[2] Applicant’s written submissions filed 4 September 2023 at [10]
Delegate’s decision
The applicant and his Cousin were interviewed separately by a delegate of the Minister (while in immigration detention) on 26 July 2012. On 23 November 2012, the delegate refused the applicant’s application for a Protection visa.
The delegate found that the applicant was not a Faili Kurd, pointing to matters including that the interview had been conducted in Farsi (as opposed to Kurdish Faili) and based upon what the delegate found to be the applicant’s lack of knowledge about Faili Kurds. Ultimately, the delegate concluded that the applicant is an Iranian citizen and not a stateless Faili Kurd and, therefore, this was not a basis upon which he would face persecution in Iran (CB 89).
The same delegate also refused the Cousin’s Protection visa application.
Tribunal proceedings
On or about 27 November 2012, the applicant and his Cousin applied (separately) to the Tribunal for review of their respective delegate decisions. The applicant and his Cousin were represented by the same migration agent in relation to their respective reviews.
The reviews for each of the applicant and his Cousin were constituted by the same Tribunal member.
First Tribunal decision
On 5 February 2013, the Tribunal member conducted a hearing in relation to only the Cousin’s review. However, the Cousin had requested that the Tribunal take evidence from the applicant in his review. Accordingly, the Tribunal adjourned the hearing to 20 February 2013 so that each of the applicant and the Cousin could give evidence in the other’s review.[3]
[3] First Affidavit at page 16 lines 25 to 34.
On 20 February 2013, the Tribunal conducted hearings in relation to the applicant and the Cousin. In the morning, the Tribunal conducted a hearing in relation to the Cousin’s review and, in the afternoon, conducted a hearing in relation to the applicant’s review. The Tribunal recognised that the applicant wanted it to consider evidence from the Cousin’s case and indicated that it would consider all of the evidence in the two cases together. The Tribunal also indicated that, after the hearing and having considered the evidence in both cases, it would write to the applicant and invite him to provide a written response to matters of concern.
On 17 February 2014, the applicant’s migration agent wrote to the Tribunal, noting the member’s foreshadowing of an invitation to comment. The migration agent sought an indication as to when the Tribunal would be issuing said invitation or, alternatively, when the Tribunal would be making its decision (CB 151).
On 6 February 2015, the Tribunal wrote to the applicant’s migration agent, notifying him that the Tribunal member had become unavailable and that another member would “finish the review” (CB 153). The same member was also to undertake the Cousin’s review.
On 6 March 2015, the newly reconstituted Tribunal conducted further hearings in each of the reviews of the applicant and his Cousin. The Tribunal conducted a hearing in the Cousin’s review in the morning and a hearing in the applicant’s review in the afternoon.
On 27 October 2015, the newly reconstituted Tribunal affirmed the delegate’s decision to refuse the applicant the visa (CB 193).
By its written reasons, the Tribunal summarised the applicant’s claims and evidence from the statement provided in support of his protection visa application, and in the oral evidence given at the hearing on 20 February 2013 and 6 March 2015 (CB 194 at [1]). The Tribunal also referred to the evidence given by the applicant in the interview with the delegate on 26 July 2012. The Tribunal’s reasons focused primarily on what it found to be inconsistencies in the applicant’s own evidence. The Tribunal found that the applicant’s evidence to the delegate, that in 2005 the family had gone to court to be given “temporary freedom papers” secured against the title deeds to a shop owned relatives, was inconsistent with his evidence to the Tribunal on 20 February 2013 and 6 March 2015 that they did not go before a court before crossing the border.
Like the delegate, the Tribunal ultimately concluded that the applicant is not a stateless Faili Kurd, but an Iranian citizen, and was not owed protection under the refugee or complementary protection provisions of the Act.
On 23 November 2015, the applicant applied to the (then) Federal Circuit Court of Australia for judicial review of the Tribunal’s decision. On 20 October 2016, the Court made orders by consent which, inter alia, set aside that Tribunal decision aside and remitted the matter to the Tribunal for reconsideration according to law (CB 212). The error conceded by the first respondent upon which the Court issued writs was as follows (CB 213 to 214):
The First Respondent concedes that the decision of the Second Respondent dated 27 October 2015 … is affected by jurisdictional error because the Second Respondent constructively failed to exercise jurisdiction in determining the Applicant’s application for review.
In particular, the First Respondent concedes that the decision record of the Second Respondent reveals that the Second Respondent failed to have regard to the evidence of the Applicant’s cousin, despite the original Tribunal Member having indicated that she would consider both applications together … This led the reconstituted Second Respondent to fall into error of the sort identified in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [33]-[35] by failing to consider evidence that was material to the Applicant’s visa application.
Second Tribunal decision
Upon the matter being remitted, the applicant was represented by his current Counsel in the Tribunal proceedings, as was his Cousin in his own review. That same Counsel appeared for the applicant in these proceedings.
The applicant and the Cousin returned to appear before a reconstituted Tribunal for further hearings in relation to each of their reviews on 28 August 2017. On that day, the Tribunal conducted a hearing in relation to the applicant’s review in the morning and a hearing in relation to the Cousin’s review in the afternoon.
On 17 October 2017, the second Tribunal affirmed the delegate’s decision in respect of the applicant (CB 275). It is that Tribunal decision which is the subject of these review proceedings.
The Tribunal found at [61] (CB 284) that the applicant’s evidence lacked credibility.
The Tribunal recorded that the applicant’s claim that his uncle left Iraq to avoid forced conscription to the Iran-Iraq war, but noted that it was “unaware of any country information” that Faili Kurds had been forcibly recruited into the Iraqi army. The Tribunal thought it curious that the applicant did not know whether his maternal uncles had served for Iraq, given that might have given him some claim to citizenship (CB 284 at [62]). The Tribunal found at [63] that it was not credible the applicant would not at least know whether he was entitled to Iraqi citizenship. The Tribunal found that the applicant was not stateless but rather was an Iranian citizen.
The Tribunal also found that the applicant was not Kurdish. It gave little weight to the card from the “Faylee Kurd Association of Iraq” from Baghdad and green cards provided by the applicant. The Tribunal said at [70] that the applicant had proven not to be a witness of truth, spoke no Kurdish, had no links to any Kurdish organisation in Iran or Australia, was only ever caught once for his lack of documentation over more than a decade of allegedly being without documents and travelling freely for work, and had been fully employed whilst in Iran.
The Tribunal rejected the applicant’s account of the occasions on which he claimed to have returned to Iraq. The Tribunal found the applicant’s claim to have returned to Iraq and been forced to return in June or July 1991 due to the Shia intifada was inconsistent with the fact that the uprising had finished on 29 March 1991 (CB 285 at [71]). The Tribunal also found it implausible that N had kept the family’s green cards in Iran, that the family was thrown out of Iran after being found without documentation, and that their uncle would have asked him to return to Samarra with their sister in the midst of “a full-on sectarian … uprising” (CB 286 at [72]).
The Tribunal also concluded that the applicant did not have a well-founded fear of persecution as a failed asylum seeker.
The Tribunal concluded that the applicant was not satisfied the applicant met the refugee or complementary protection criteria.
APPLICATION TO THIS COURT
By an application to show cause filed with the Court on 10 November 2017, the applicant commenced the instant proceedings seeking review of the second Tribunal decision. Since the commencement of the proceedings the applicant has been represented by Counsel on a direct access basis, being the same Counsel who represented him and his Cousin before the Tribunal.[4]
[4] On 5 September 2024, while judgment was reserved, the Court was informed that by reason of Counsel having been appointed to the Administrative Review Tribunal, the applicant would be represented by alternative Counsel on a direct access basis going forward.
On 8 December 2017, a Registrar made orders (by consent) including a grant of leave to the applicant to file and serve an amended application and any Affidavit evidence by 28 February 2018. The proceedings were next listed for callover on 12 July 2018. On 11 December 2017, an amended application was filed in accordance with the aforementioned grant of leave. When the matter was next called-over, orders were made for a further callover to take place on a date to be notified administratively to the parties.
On 20 March 2023, the proceedings were docketed to me and I made orders on that date listing the matter for final hearing on 19 September 2023 (March orders). The applicant was again granted leave to amend any application by 5 August 2023. The hearing was later rescheduled to 27 March 2024.
The parties each filed written submissions in advance of the hearing as ordered. A further amended application was filed for the applicant outside of the time allowed by the March orders. However, given there was no objection by the first respondent and arguably no prejudice in any event, leave was granted to the applicant at the hearing to rely upon it (Further Amended Application).
At hearing, each of the applicant and first respondent were represented by their respective Counsel. The hearing took place using Microsoft Teams to accommodate a request by Counsel for the first respondent, who had been unwell.
The Court Book was tendered by the first respondent and received by the Court as Exhibit “1R”. The applicant relied upon the following Affidavits, without objection:
(a)Affidavit of Gail Margaret Hargreaves made on 21 February 2018 (first Hargreaves Affidavit), annexing transcripts of the:
(i)Tribunal hearing held for the Cousin on 5 February 2013 (GH-3);
(ii)Cousin’s Tribunal hearing held on 20 February 2013 (GH-4);
(iii)applicant’s Tribunal hearing held on 20 February 2013 (GH-5);
(iv)applicant’s Tribunal hearing held on 6 March 2015 (GH-6); and
(v)Cousin’s Tribunal hearing held on 6 March 2015 (GH-7).
(b)Affidavit of Gail Margaret Hargreaves made 23 February 2018 (second Hargreaves Affidavit), annexing transcripts of the:
(i)Cousin’s Tribunal hearing held on 28 August 2017 (GH-1); and
(ii)applicant’s Tribunal hearing held on 28 August 2017 (GH-2).
Grounds of review
By the Further Amended Application the applicant raises the following grounds of review:
1.The Tribunal failed to give proper, genuine and realistic consideration to the evidence of the applicant’s cousin.
2.In the alternative, the tribunal materially failed to give information and invitation in accordance with subsection 424A(1) of the Act.
Particulars
The Tribunal failed to give the applicant clear particulars and invite them in accordance with either subsection 424A(1) or subsection 424AA(1) of the act to comment on or respond to adverse oral evidence of their cousin.
Ground 1
Ground 1 alleges that the Tribunal did not give proper, genuine and realistic consideration to the evidence of the applicant’s Cousin.
The applicant submits that, while the Tribunal said at [61] (CB 284) that it had “taken into account” the Cousin’s evidence when making its decision, such a statement is not determinative of whether or not the Tribunal did so in actuality and in the proper legal sense, citing Minister for Home Affairs v Omar (2019) 272 FCR 589 at [36] per Allsop CJ , Bromberg, Robertson , Griffiths and Perry JJ (which in turn cites Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [29] to [62] per Griffiths, White and Bromwich JJ).
The applicant also relies on ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 (Applicant WAEE) in which the Full Court of the Federal Court held that failure to consider a claim can be inferred from a failure to deal with a claim in the decision-maker’s reasons.
The applicant contends that, despite having asserted that it considered the Cousin’s evidence, the Tribunal stopped short of grappling with said evidence in a meaningful way in its reasons for decision. This is said to be in contrast to its treatment of the applicant’s own evidence which (he acknowledges) was discussed by the Tribunal in “extensive detail”.[5] The applicant contends the evidence of his Cousin was neither summarised nor discussed in any detail, other than by the passing reference at [61]. The applicant says that, apart from being mutually corroborative witnesses of one another, the Cousin’s evidence went further.
[5] Transcript 27 March 2024 at T05.08 to T05.09
Essentially, the applicant submitted that the Cousin’s evidence not only corroborated, but also supplemented, his own evidence. Specifically, the applicant points to the issue of the renewal of the family’s green cards, and to his having told the Tribunal to ask his Cousin about this. The applicant now says that the evidence the Cousin gave about the failure of N to renew the green cards in 1995, was not evidence the applicant could give and therefore the evidence of his Cousin on the topic required detailed consideration. The applicant says the evidence of the Cousin was that N did not want to renew the green cards because she was hoping they could apply for humanitarian visas.
The applicant submits that, in circumstances where the Tribunal’s decision turned primarily on credibility it cannot be said that, had the Tribunal gave the Cousin’s evidence more consideration than it did, its ultimate decision would have been the same, citing VAAD v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCAFC 117 at [79]. The applicant says the Tribunal’s failure must therefore have denied the applicant the possibility of a favourable outcome and is, therefore, material.
In support of Ground 1 the applicant cites Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at [25] per Gummow J:
[W]hat was required of the decision maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy ... The assertion by a decision maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense ...
The applicant also cites Carrascalao (supra) at [45] in which the Full Court said the following:
… when a decision maker is required by statute to consider a claim or other mandatory criteria, the decision maker must engage in an active intellectual process directed at that claim or criteria …
The first respondent counters by saying that the Tribunal was not required to separately consider the Cousin’s claim that N stopped renewing their green cards so as to help them obtain humanitarian visas, because the Tribunal was focusing on what it perceived to be other evidentiary issues. Those issues included the lack of any objective corroborative evidence of what was occurring with respect to Iran deporting Faili Kurds to Iraq at the relevant time, the applicant’s inability to speak Kurdish and his ability to be employed in Iran (CB 285 at [69] to [70]).
The first respondent says that the fact that evidence was taken from the Cousin and was not ignored, satisfies the concept that proper, genuine and realistic consideration was given to his evidence, and that the evidence was engaged with at a level of detail such as the case required. The first respondent further contends that the evidence about N not renewing the green cards of the applicant and his Cousin, in preference of obtaining humanitarian visas, was not an issue which needed to be addressed specifically because the Tribunal had already concluded that the reason the evidence of the applicant and his Cousin’s was mutually corroborative was because it had been concocted, and therefore it was not believable.[6]
[6] Transcript 27 March 2024 at T08.15 to 20
Consideration
In Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [29] to [30] the High Court observed as follows:
In NAIS v Minister for Immigration and Multicultural and Indigenous Affairs, the minister accepted that a statutory provision requiring a tribunal to give an applicant an opportunity to appear before it and give evidence implies that such evidence is to be given proper, genuine and realistic consideration. The minister reiterated that position in this case.
In Swift v SAS Trustee Corporation, Basten JA (with whom Allsop P agreed) noted Khan’s case and said of the language of “proper, genuine and realistic consideration” (at [45] ):
That which had to be properly considered was ‘the merits of the case’. Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review.
see also Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at 442 [65] per Heerey, Goldberg and Weinberg JJ; Anderson v Director-General of the Dept of Environmental and Climate Change (2008) 251 ALR 633 at 650 to 651 [56] per Tobias JA (Spigelman CJ and MacFarlane JA agreeing).
In the present case, I am satisfied that the Tribunal did consider the evidence of the applicant’s Cousin sufficiently such that it cannot be said the Tribunal failed to engage in an active, intellectual process in respect of it. In reaching the following conclusions, it is contextually relevant that the applicant and his Cousin had the same representative before the second Tribunal, their hearings ran consecutively before the same Tribunal member on the same day, and that the Cousin’s hearing was first.
It was actively advanced to the Tribunal by the representative whom the applicant shared with his Cousin, that the respective applicants’ versions of events were “mutually corroborative”.[7] To the extent that this was submitted as being a positive feature of their evidence, the Tribunal rejected the commonality of the evidence as being indicative of its truth for the reasons which it gave at [61] when it said:
At the request of the adviser I have taken into account the evidence presented by the applicant's brother/cousin whose hearing was conducted earlier that day, and that the adviser claimed was mutually corroborative. Whilst I agree that the stories were very similar, so implausible were they that I consider the corroborative nature of them to be because they have concocted the accounts together. I am satisfied that their corroborative nature was reflective of their coordination between the applicants, rather than any truth in the claims themselves.
[7] See for example Second Hargreaves Affidavit at T79.34 to 80.03
To the extent that the respective versions overlapped, the Tribunal considered and rejected the similarities as being persuasive.
As the first respondent correctly observes, the only aspect of the evidence on which the applicant relies as being a fortiori to his own evidence, is said to be the Cousin’s explanation for why his mother, N, had not renewed the family’s green cards. The difficulty with that example is that the explanations on the part of both witnesses were largely consistent and, to the extent they differed, they were speculative at best.
When the Cousin was first asked about the green cards at his own hearing,[8] he said the following with the reference to his “brother” being a reference to the applicant (emphasis added):[9]
Cousin: I cannot remember exactly the date, I know my mother got it.
Tribunal: Approximately when?
Cousin: At that time I wasn’t adult enough to be able to go and get it myself.
Tribunal: OK, so roughly when?
Cousin: I don’t know exactly, I do not want to really guess because it may cause problems later on. Maybe my brother knows better. This is the green one.
[8] Which preceded the applicant’s hearing (see [53] above)
[9] Second Hargreaves Affidavit at T04.31 to T05.04
From this it can be discerned that the Cousin considered the applicant knew more than he did about the circumstances surrounding the green cards, at least as to relevant dates.
Next, when giving evidence about N not renewing the green cards the Cousin explained that N was scared[10] that the family might be returned to Iraq and held a hope that maybe[11] they might be given a humanitarian visas on compassionate grounds. Read fully and in context, this appears to have been expressed as a hope on N’s part about something which might happen, rather than being the conclusive basis upon which N did not seek to renew the green cards.
[10] Second Hargreaves Affidavit at T27.08
[11] Second Hargreaves Affidavit at T27.09 and T27.12
The applicant’s own explanations for the lack of green card renewal also turned upon N’s possible fear and were expressed speculatively. This can be discerned from evidence including[12] the following (emphasis added):
(a)“I don’t know exactly what happened but I know that my aunty said that in Iraq is not as bad as it was before and she was scared that if she goes to renew the cards they would say that you have to return back to Iraq”;[13]
(b)“it was a non-trust feeling that she had maybe because of being a woman she was scared and useless, scared that she had or a useless fear that she had to be returned back to Iraq”;[14]
(c)“Because that was the trick that the Iranian Government uses to either defy people and she was scared that maybe in this way she would be identified as well”;[15] and
(d)“Maybe the main issue and problem that I have is that the decision that my aunty made at that time, they were not based on anything factual.”[16]
[12] See also Second Hargreaves Affidavit at T65.18 to T65.19
[13] Second Hargreaves Affidavit at T65.02 to T65.04
[14] Second Hargreaves Affidavit at T65.07 to T65.09
[15] Second Hargreaves Affidavit at T65.27 to T65.29
[16] Second Hargreaves Affidavit at T65.27 to T65.29
Overall, there is no significant evidential gap between the respective accounts of the applicant and his Cousin. Each was based in some part on supposition and speculation as to the motivations of an adult for decisions to which neither the applicant nor the Cousin appears to have been privy as young persons. Neither of them provided significantly different, much less better, evidence than the other. The Cousin’s additional speculation that N also held hopes that the family might be granted a humanitarian visa on compassionate grounds does not, on a fair reading of each version of the evidence, provide any missing link that would have completed the applicant’s evidence. The Cousin was not advanced either by himself or the applicant as being the more knowledgeable witness on this issue (see [56] above) and, overall, it appears that each of the Cousin and the applicant were offering their opinions as to reasons why N may have prevaricated in not renewing the green cards.
There being no specific discrepancies in the versions, or aspects in the Cousin’s evidence which materially augmented or complemented the applicant’s evidence on the green card issue, I am satisfied the Tribunal did give proper, genuine and realistic consideration to the evidence of the Cousin in this matter, as it recorded doing (see first sentence of the extract at [53] above). I also accept the first respondent’s submission at [50] above.
Accordingly, the error alleged by ground 1 is not made out.
Ground 2
Ground 2 alleges the Tribunal erred in failing to comply with s 424A(1) of the Act by not giving clear particulars of information the Tribunal considered the reason, or part of the reason, for affirming the decision and not inviting the applicant to comment on or respond to such information, citing SAAP v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 228 CLR 294 at [77] per McHugh J, at [173] per Kirby J, and at [208] per Hayne J.
The applicant argues that his Cousin said that they “didn’t have any problems in Iran” other than the time they were stopped in 2005. He says that the statement that they “didn’t have any problems in Iran” is the information in question for the purposes of s 424A(1). The first respondent submits that this evidence given by the applicant’s Cousin was not referring to the applicant but was a reference to the Cousin’s sister. The applicant, however, maintains the Cousin was referring to the applicant. I accept that a fair and contextual reading of the Transcript[17] demonstrates that the references to “we” at T26.03 was a reference to the applicant and his Cousin.
[17] Second Hargreaves Affidavit at 25.20 to 26.09
The applicant says that a breach of s 424A arose because the Cousin’s evidence was information which “contain[ed] in their terms a rejection, denial or undermining of the [applicant’s] claims” (citing SZBYR v Minister for Immigration and Citizenship (2007) 127 CLR 297 at [17]). The applicant says that this therefore enlivened the obligation under subsection 424A(1) of the Act for the Tribunal to give clear particulars of information to the applicant together with an invitation to respond.
Consideration
I accept the submissions made for the first respondent that the Cousin’s evidence that they “didn’t have any problems in Iran” does not contradict the applicant’s evidence such that it could be considered to contain in its terms a rejection, denial or undermining of the applicant’s claims. That is because the applicant gave similar evidence to the Tribunal when he said the following:[18]
Tribunal: Ok, right-ee-o, um so you continued living after 1995 without any problems being unregistered?
Applicant: I didn’t have any problems until 2005.
[18] Second Hargreaves Affidavit at T65.34 to T65.37
The Tribunal understood this evidence, which is reflected in its reasons for decision, particular at CB 280 at [36] and CB 282 at [47].
The first respondent also says that, in any case, the information was given by the applicant through his agent to the Tribunal for the purpose of the review (CB 284 at [61]), therefore it falls within the exemption in s 424A(3)(b) of the Act (citing NBKT v Minister for Immigration and Multicultural Affairs & Anor 156 FCR 419 and MZXBM v Minister for Immigration and Citizenship & Anor 162 FCR 454).
To the extent that the applicant further alleged that none of the exceptions in subsection 424A(3) of the Act applied because the information was specifically about the applicant, which the applicant had not given to the Department or the Tribunal, I reject that argument for the same reasons. The applicant did give such evidence to the Tribunal. Accordingly, there is no error as alleged by ground 2.
CONCLUSION
The applicant has failed to establish error. Absent a jurisdictional error the decision of the Tribunal is a privative clause decision and must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 2 December 2024
0
11
1