Eyj17 v Minister for Immigration

[2018] FCCA 2739

FEDERAL CIRCUIT COURT OF AUSTRALIA

EYJ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2739

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a protection visa – whether the Tribunal failed to invite the applicant to give evidence and present arguments relating to issues arising – whether the Tribunal failed to have regard to the evidence given by the applicant at previous Tribunal hearings – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 425, 424A, 476

Migration Regulations 1994 (Cth), reg.4.35

Applicant: EYJ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3450 of 2017

Judgment of: Judge Street

Hearing date: 24 September 2018

Date of Last Submission: 24 September 2018

Delivered at: Sydney

Delivered on: 24 September 2018

REPRESENTATION

Counsel for the Applicant: Mr R Chia
By direct access

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Grant leave to the applicant to rely upon the amended application annexed to the submissions filed 10 September 2018 and the Court dispenses with the need for the electronic filing and service of the same.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $6,800.00.

DATE OF ORDER: 24 September 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3450 of 2017

EYJ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 12 October 2017 affirming the decision of the delegate not to grant the applicant a protection visa. 

2. The applicant was found to be a citizen of Iran and his claims were assessed against that country. The proceedings had an unfortunate, protracted history after the delegate’s decision on 23 November 2012.  The delegate in that regard was not satisfied the applicant was stateless or is a Farsi Kurd.  The delegate found the applicant was a citizen of Iran.

3. When the applicant applied for review, an earlier Tribunal in 2013 failed to proceed to a determination, as a result of which there was a re-hearing before another Tribunal. The Tribunal’s decision dated 27 October 2015 was set aside by consent on 1 November 2016 on the basis that there had been non-compliance with s 424A of the Act.

4. The current Tribunal identified on 10 November 2016 that the matter had been remitted for reconsideration and was differently constituted.  On 11 April 2017, the applicant was informed by letter that the Tribunal was unable to make a favourable decision on the information before it and invited the applicant to appear on 30 May 2017. The letter also made clear the applicant was being given an opportunity to bring original documentation to the hearing.

5. In circumstances where the Tribunal Member was unable to conduct the hearing, the matter was adjourned and the matter was the subject of a further invitation to reschedule the hearing to 13 June 2017.  A registered migration agent form was completed by Mr Richard Chia of counsel, who is also a registered migration agent.

6. A request for an adjournment was made by the migration agent and as a result, an invitation was sent on 17 May 2017 by the Tribunal inviting the applicant to appear on 27 June 2017. The letter included a response to hearing invitation which then completed and there is a reference to a person described as a cousin who has also been described as the applicant’s brother who is referred to as a possible witness.

7. There appears to have been a further rescheduling occurred due to the circumstances of the Tribunal. By letter dated 9 August 2017, the applicant was invited to attend a hearing on 28 August 2017 and a further information leaflet was provided and a further response to invitation hearing sent. 

8. Two weeks before the hearing, the Tribunal wrote to the applicant through the applicant’s migration agent and invited the applicant to:

   ·   Please provide details regarding the Faili Kurdish Association, who’s ID cards you presented to the Tribunal. The information should include, but not be limited to issues such as who the organisation is, (history, function, location, contact details and personnel, social media presence, media reports regarding it),

   ·   On what basis these ID cards issued and what they signify, and how you have come to receive one?

9. An email was sent requesting that the information be produced by 21 August 2017, which was a week before the scheduled hearing.  A further response to hearing was completed by the migration agent on 18 August 2017 identifying the cousin also described as brother as an intended witness.

10. On 21 August 2017, the Tribunal received a facsimile which contained a response to the request for information dated 14 August 2017. That response referred to the requirements of reg 4.35 of the Migration Regulations 1994 (Cth) (“the Regulations”) and asserted that the applicant had not been accorded sufficient time to respond to the request. The response identified that the applicant has provided a response only to the extent possible in a limited timeframe. The response referred to the applicant having previously provided a membership card for identity with a number and issue date and a membership card for identity with a particular number issued on another date and marked as renewed for a further year. The submission asserted that variations in spelling of the association’s name and the applicant’s name are due to variations in the translation of the original Arabic text on the cards. The submission noted, as recorded in the translations of the cards, the head of the society was not at the time Mahar Rasheed Hussain and the association was based in Bagdad, Iraq. The cards also set out address details, membership number, amongst other details.

11. The submission referred to the applicant, like his brother, not being an active member of the association and was not directly in receipt of correspondence from the association. The submission advanced the applicant claimed to fear persecution by reason of him being a Farsi Kurd and that it was understandable that the association and the applicant would wish to keep a low profile and not to have an accessible online presence or media exposure.

12. It was submitted that the applicant had previously given evidence that he and his brother obtained membership cards when they were in Bagdad in 2005 and went with K to their office next to the police station in a region of Bagdad referred to at the hearing. The submission referred to the applicant’s oral evidence at the hearing on 20 February 2013 to the effect that the applicant had not anticipated needing the cards for anything and further, the proposition that the cards were a sign of sympathy.

13. The submission advanced the effect of the evidence is that the cards were not obtained for primary identification purposes but, rather, for something akin to sentimental reasons. The submission advanced that they were not obtained for the purposes of the applicant’s dealings with the Iraqi or Iranian governments.

14. No further adjournment request was advanced by the applicant or on behalf of the applicant in respect of a response to that request for information.

15. On 24 August 2017, submissions were provided to the Tribunal which addressed the applicant’s claims, the decision of the delegate, the decision of the previous tribunal, the previous Federal Circuit Court of Australia proceedings, country information and referred to the finding that the applicant was not a Farsi Kurd being central to the reasoning of the delegate and the previous Tribunal. 

16. The submissions dated 24 August 2017 referred to the issue that gave rise to the consent order in respect of alleged inconsistencies between the brother and the applicant and referred to the difference in respect of who went inside the embassy and whether the applicant had been taken before the court.

17. There was then a proposition that the previous Tribunal had ignored the evidence of the brother given to the differently constituted Tribunal, and in that regard the brother’s purported evidence was that he did not go inside the premises, but waited outside for the applicant. The submissions also referred to the brother’s oral evidence in relation to the period of time before they left Iran after being pulled over by Iranian authorities and that the brother said that he did not have to go to court.

18. The submission advanced that in their entirety, the evidence that the applicant and his brother each gave to the delegate and the Tribunal on previous occasions, was largely consistent and mutually corroborative.

19. The Tribunal hearing followed that submission on 28 August 2017. The migration agent was present at the hearing, as well as the applicant’s brother. In the course of the hearing it was made clear that this person was not the applicant’s brother, but his cousin. It was also apparent that in the course of the hearing with the applicant’s migration agent present, the applicant was given the opportunity as to whether he wanted to call his brother to give evidence. It was apparent that that invitation was not adopted. 

20. The Tribunal member expressly referred to identifying having concerns at the hearing in respect of the applicant’s nationality and that he is actually an Iranian citizen and not Kurdish, and those concerns extended to whether the applicant ever went to Iraq as claimed in 1991 or in 2005 and that the applicant’s claims were not credible. The Tribunal member expressly referred to having concerns that the applicant had not tried to leave Iran before in the 21 years and did not appear to have valid identity documents and had concerns about the white card having no date and that the photo did not appear to be indicative of the age he claimed to be.

21. At the commencement of the hearing, the Tribunal member referred to the identity cards and asked were there any documents that the Tribunal member should have or that have not been mentioned, and the applicant responded that the Tribunal member has everything that the applicant has. The Tribunal member expressly asked at page 12 of the transcript of the Tribunal’s hearing:

    Tribunal Member:   Did you go to check out the records or seek information that your father served in Iraq military so that would mean the Iraq government would have his records?

    Interpreter:            No what my mother told me was proof.

22. The Tribunal member expressly referred to having to determine the state of the applicant’s citizenship and then asked the applicant:

    Tribunal member:          Have you personally sought information after your father’s history, particularly citizenship based, if nothing else, on his military service?

    Interpreter:                No, with apologies I don’t think you are very aware of the Middle East situation.

    Tribunal member:     Can you just answer the question whether you have made any inquiries with the Iraqi Government about whether your father is an Iraqi citizen?

    Interpreter:  No.

    Tribunal Member:     Why not?

    Interpreter:                Because when I was a child I hadn’t gone to Iraq.

    The Tribunal member raised with him why not as an adult. 

23. In the course of the hearing there was also reference to a green card and the renewing of a green card and getting a white card. The applicant referred to his brother and his mother knowing, and identified that he might have to ask his brother. 

24. At the conclusion of the hearing, the applicant was asked if there was anything else he would like to say and then a further opportunity was given as to whether there was anything else the applicant wanted to say. The Tribunal member further recorded that if there were other issues, that those could be included in a post-hearing submission.

25. Reference was made to the possibility of getting documents as well as reference to getting an ID card and the applicant was then asked whether he has anything else he wished to add and he indicated no and then the applicant said that there was one further matter.

26. The applicant’s brother’s (cousin’s) transcript was also tendered into evidence before this Court and that hearing took place on the same day.  At the end of the brother’s (cousin’s) transcript, the Tribunal member again asked the brother whether there was anything else that he would like to be added and the migration agent, referred to the fact that at the first Tribunal hearing, the Tribunal member said that evidence in the brother’s case would be evidence in the applicant’s case. The Tribunal member asked which Tribunal the migration agent was referring to and there was a reference to the 2013 Tribunal. The migration agent submitted that he would be asking that, because the evidence is mutually corroborative, that the evidence should be treated as being mutually corroborative. The Tribunal member responded that that would be taken on board and the migration agent was asked whether he wanted time with the applicant and was informed “no”.

27. The record of hearing identifies that an opportunity was given on 28 August 2017 to put on further submissions to the Tribunal, and on 2 September 2017 further submissions were provided.  Those submissions included the birth certificate of the applicant’s sister with a certificate of translation and a further copy of the sister’s identity card on which was faxed to the Tribunal on 2 September 2017.

28. The Tribunal summarised what had occurred at the hearing and provided the background to the visa application. The Tribunal referred to raising with the applicant the concern in respect of the applicant being an Iranian citizen and not Kurdish.  The Tribunal also raised concerns that the applicant never went to Iraq, as claimed in 1991 or 2005. The Tribunal referred to the applicant wishing to rely upon his evidence from 2013 and 2015, including the oral submissions. On a fair reading of the Tribunal’s reasons, the reference to the evidence, is a reference to evidence adduced on the applicant’s behalf in paragraph 65 of the Tribunal’s reasons is consistent with the Tribunal taking into account the brother’s evidence that had been given to the earlier tribunal.

29. The Tribunal’s reasons expressly referred to the post-hearing submission. The Tribunal did not find the applicant to be a reliable, credible or truthful witness and found the applicant had lied to Commonwealth officials and fabricated his claims in order to obtain a protection outcome. 

30. The Tribunal did not accept that the applicant’s parents were stateless Farsi Kurds residing in Iraq. The Tribunal noted the applicant had done nothing by way of individual research into his parents’ antecedents to establish a claim for citizenship, and that he never inquired about his father’s military records regarding his service in the Iraqi Army.  The Tribunal did not accept that the applicant simply accepted what his mother told him that they were not Iraqi citizens and that they had no documents or the documents were destroyed. The Tribunal noted that the applicant did not explain how the documents were destroyed, and given his father allegedly deserted and, it is reasonable to think that they would have had an opportunity to take their documents with them.

31. The Tribunal concluded that the lack of interest in citizenship or documentation is because the applicant was not, in fact, stateless. It was in those circumstances that the Tribunal found the applicant is an Iranian citizen and that the applicant speaks no native language other than Farsi, has been educated in Iran and employed in Iran and has showed no interest in or knowledge of Iraqi citizenship laws, his extended family background or the way in which he goes about trying to prove citizenship that may have allowed him to resolve his statelessness. 

32. The Tribunal did not accept the applicant was stateless Kurdish Farsi.  The Tribunal member did not accept the evidence that the applicant and his family were thrown out of Iran after being discovered without valid documentation in 2005.

33. The Tribunal referred to the fact that the Iranian Foreign Minister stated that Iran would only accept failed asylum seekers from Australia who returned voluntarily. Given the Iranian government has indicated it will not accept involuntary returnees, the Tribunal found the only way the applicant will return to Iran in the reasonably foreseeable future is as a voluntary returnee. The Tribunal made an express finding that if the applicant does return to Iran, the Tribunal found the applicant will not be harmed simply for being a failed asylum seeker. 

34. The Tribunal’s reasons on a fair reading clearly identified the Tribunal finding that the applicant would not be returned to Iran other than as a voluntary returnee. The Tribunal found the applicant did not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future. The Tribunal was not satisfied the applicant met the criteria under s 36(2)(a) or s 36(2)(aa) of the Act and affirmed the decision under review.  

The grounds

1. The grounds in amended application are as follows:

   1. The Tribunal failed to “invite” the applicant to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   2. Further or in the alternative, the second respondent's invitation to the applicant under section 424 of the Act to give information in relation to his Feyli Kurd cards did not comply with section 424B of the Act.

   3. Further or in the alternative to 1 and 2, the Tribunal failed to have regard to the evidence that the brother had given at the Tribunal hearings.

   4. Further or in the alternative to 1, 2 and 3, in asking whether the applicant had a well-founded fear of harm as a failed asylum seeker, the Tribunal asked itself the wrong question and thereby constructively failed to exercise its jurisdiction.

   5. Further or in the alternative to 1, 2, 3 and 4, the Tribunal committed jurisdictional error by;

   a. acting upon an invalid certificate, purportedly issued under section 438 of the Act; or

   b. failing to notify the applicant of the existence of the certificate and how it proposed to exercise its discretion under paragraph 438(3)(b) of the Act and give the applicant the opportunity to make submissions on the validity of the certificate or the exercise of the discretion.

Ground 1

1. In relation to ground 1, Mr Chia of counsel submitted that the Tribunal's reasons at paragraph 72 identified an issue in relation to documentation and an inquiry of the applicant’s parents that had not been raised. It was apparent from the transcript of the hearing before the current Tribunal as referred to above that the applicant was put on notice of the issue in relation to documentation and the issue concerning his citizenship and being stateless. Further, the issue in relation to the documentation was also raised, as referred to in the transcript of the first Tribunal hearing with the applicant.

2. On the face of the evidence before the Court, the applicant had a real and meaningful hearing in accordance with the statutory requirements. The Tribunal invited the applicant to a hearing in accordance with the requirements of s 425 of the Act. 

3. The applicant was clearly on notice from the delegate’s decision as to the issue in relation to being a citizen of Iran and the issue of documentation was a patent issue in that regard. The retention of the documentation was an obvious issue from the delegate’s decision and a fair reading of the transcript before the current Tribunal reflects the applicant having a real and meaningful opportunity to engage with the issue advanced as to whether he was, as claimed, mistaken as Farsi Kurd. The submissions advanced by the applicant to the Tribunal as referred to above and also consistent with the applicant having a real and meaningful opportunity to address the issues. No jurisdictional error as alleged ground 1 is made out. 

Ground 2

1. In relation to ground 2, Mr Chia of counsel took the Court to the communications sent prior to the hearing to produce documents in the required period of 14 days identified in reg 4.35 of the Migration Regulations 1994 (“the Regulations”). Mr Chia submitted that the non-compliance was raised in submissions and that there was accordingly, a failure to comply with the statutory regime. Mr Chia submitted that the Tribunal’s reasons reflect taking into account the deficiency in the documentation and submitted that, accordingly, the failure to comply with the 14 day period was a jurisdictional error.

2. The history of the matter has been referred to above and on no view did the applicant suffer any practical injustice by reason of the non-compliance with the prescribed period.

3. The applicant had ample opportunity to adduce further material in respect of the request if the applicant saw fit.  The applicant in this regard was represented by a migration agent who was counsel. No jurisdictional error is made out by ground 2. 

Ground 3

1. In relation to ground 3, Mr Chia submitted that the Tribunal had failed to have regard to the brother’s evidence. The Tribunal’s reasons do not support that proposition. The Tribunal expressly referred to what had occurred at the hearing and the request to take into account the evidence from 2013 to 2015 including the brother’s evidence. That is also consistent with the transcript that was tendered by the applicant in the circumstances referred to above of the brother’s hearing. There was no need for the Tribunal to refer to every piece of evidence. 

2. The submission advanced that the brother’s evidence was corroborative reflected a contestable proposition advanced by the migration agent in all the circumstances and was not correct or binding on the Tribunal. Nor did the Tribunal on a fair reading of the decision as a whole fail to have regard to the evidence the brother had given. It was not necessary for the Tribunal to expressly make findings on the submissions advanced. No inference should be drawn that the Tribunal did not take into account the evidence given by the brother. Further, it is apparent the Tribunal did not determine the applicant’s want of credibility by reference to the alleged error of the kind made by the earlier tribunal.  No jurisdictional error as alleged in ground 3 is made out.

Ground 4

1. In relation to ground 4, Mr Chia of counsel submitted that the Tribunal had applied an erroneous test as to whether the applicant had a well-founded fear of persecution by making the assumption that the applicant would not be returned to Iran involuntarily. Mr Chia submitted that the Tribunal had failed to apply the correct test as to whether the applicant had a well-founded fear of persecution. The Tribunal made a finding that the applicant would not be returned involuntarily.  It was in that context that the Tribunal proceeded to determine whether the applicant had a well-founded fear of persecution for any Convention reason. There was no erroneous application of the relevant test. No jurisdictional error as alleged in ground 4 is made out. 

Ground 5

1. The document the subject of the certificate was irrelevant. The applicant suffered no practical injustice by reason of the existence of the certificate on the material the subject of the certificate in the present case. No jurisdictional error is made out by ground 5.

Conclusion

1. As the amended application fails to make out any jurisdictional error, accordingly, the amended application is dismissed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 6 December 2018