EZS17 v Minister for Immigration

[2018] FCCA 1077

FEDERAL CIRCUIT COURT OF AUSTRALIA

EZS17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1077

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Temporary Protection visa – whether the Authority’s decision was based on no evidence – whether the Authority in its application of country information – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 476

Applicant: EZS17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3493 of 2017

Judgment of: Judge Street

Hearing date: 1 May 2018

Date of Last Submission: 1 May 2018

Delivered at: Sydney

Delivered on: 1 May 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr A Fisher
HWL Ebsworth

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,250.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3493 of 2017

EZS17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

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 Immigration Assessment Authority (“the Authority”) made under Part 7AA of the Act on 16 October 2017 affirming a decision of the delegate not to grant the applicant a Temporary Protection visa.

2. The applicant was found to be a stateless Bidoon from Kuwait and his claims were assessed against that country. The applicant arrived in Australia on 31 October 2012. The applicant claimed to fear harm by reason of being a stateless Bidoon as well as by reason of having participated in a demonstration in 2012 and alleged that he would be denied access to basic amenities such as employment. On 16 June 2017, the delegate found the applicant failed to meet the criteria for the grant of a protection visa.

The Authority

1. On 22 June 2017, the Authority wrote to the applicant identifying that the application for the protection visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information. The letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions.

2. Submissions were provided to the Authority on 10 August 2017, which were referred to in the Authority’s reasons and taken into account. The Authority in its reasons identified the background to the visa application and had regard to the material referred by the Secretary under s 473CB of the Act. The Authority summarised the applicant’s claims. The Authority identified having significant doubts about the applicant’s credibility because of numerous inconsistencies in the applicant’s evidence which the Authority summarised in detail. The Authority also found the applicant’s evidence to conflict with country information. The Authority was, however, satisfied that the applicant is not a citizen of Kuwait and that he is not a citizen of any other country.

3. The Authority referred to the applicant’s claims in relation to his participation in a protest, referred to his evidence being vague about when the demonstration took place and referred to what the applicant said in his first temporary protection visa interview about his brother paying for the bail for his release. The Authority referred to the fact that at that entry interview the applicant stated that nothing would happen to him if he returned to Kuwait and that he was not under threat. The Authority found that statement unable to be reconciled with the applicant’s subsequent claims as being true. The Authority did not accept the applicant’s explanation that he was tired and confused at the time of the entry interview. The Authority referred to what occurred during the process at that interview and in those circumstances considered that if the applicant had indeed left Kuwait fearing harm as a result of his participation in protests and consequent imprisonment several months before, he would have said so or at the very least given some indication that this was the case when first asked about his reasons for leaving Kuwait and fearing return.

4. The Authority referred to the applicant’s different claims at different times about the feared consequence of his participation in the 2012 protest. The Authority found if the applicant had really been imprisoned because he was involved in a demonstration against the government and had left Kuwait for that reason, the Authority would have expected that the applicant would have a clear view as to the consequences and that he would express that view consistently and clearly. The Authority summarised further inconsistencies and problems with the applicant’s evidence.

5. The Authority considered that if the applicant had really travelled to Iran in early 2012 after he was imprisoned, both events would have been mentioned when he was first asked what he had done and what had happened to him in the first half of 2012. The Authority also referred to the fact that the applicant stated at the second temporary protection visa interview that following his release from prison the applicant was anxious and fearful, people advised him not to go out and he was afraid to go out and he was scared even of his own shadow. The Authority found that if this were true, the Authority had great difficulty accepting that the applicant would have ventured on a pilgrimage to Iran, especially as he also indicated that he had concerns about his ability to travel in and out of the country without difficulty and had been relieved when he was able to do so.

6. The Authority did not accept the applicant’s claims in relation to participating in the 2012 protest and his subsequent detention. The Authority did not accept the applicant was detained and imprisoned as a result of his participation in a protest in support of Bidoon’s rights in early 2012. The Authority did not accept that the applicant was threatened with further repercussions if he ever protested again or that his security card was cancelled and not renewed because he participated in a demonstration, or that security flags or blocks were put in place which would have prevented the issue of a further card. The Authority did not accept that any claimed future consequences would flow from this. The Authority did not accept the applicant faces further detention and harm because he is, or is perceived to be a political opponent of the government, or that he or members of his family would have their official documents cancelled or be unable to renew them. The Authority was satisfied that the applicant continued to hold some kind of registration or security document after the one he has presented which expired in 2004.

7. Given the overall doubts about the applicant’s credibility, the Authority did not accept that the applicant was refused a new card in 2010 for any reason. The Authority did not accept that as a result of new procedures or for any other reason, the applicant’s security card was not renewed in 2010 resulting in him becoming an undocumented stateless Bidoon.

8. The Authority was satisfied the applicant is a stateless Bidoon who was registered with the relevant government authority and who held security or registration documentation issued by the Government up until the time of his departure. The Authority referred to discrimination faced by Bidoons and was not satisfied the applicant encountered serious discrimination in relation to employment. The Authority noted the applicant did not suggest he was ever denied or unable to access medical treatment.

9. The Authority referred to the applicant being a failed asylum seeker and was satisfied that the applicant would be issued with a travel document and he would be permitted to enter the country, and that there is no real chance that he would be subjected to serious harm during or as a result of this process.

10. The Authority was not satisfied that the applicant had experienced a level of discrimination so serious as to cause persecution as defined or any other form of serious harm amounted to persecution. The Authority found there was no evidence to support a finding that there is a real chance that the applicant may experience more severe discrimination of any other kind of harm on return now or in the reasonably foreseeable future that would constitute persecution. The Authority was not satisfied there is a real chance that the applicant would face serious harm amounting to persecution on returning to Kuwait as a failed asylum seeker.

11. The Authority was satisfied the applicant would be able to obtain a temporary travel document and that he would be allowed to re-enter Kuwait despite being stateless. The Authority was not satisfied the applicant faces a real chance of harm on return. The Authority found the applicant does not meet the requirements of the definition of refugee in s 5H(1) of the Act and found the applicant did not meet the criteria under s 36(2)(a) of the Act.

12. The Authority was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Kuwait from Australia, there is a real risk the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. On 6 December 2017, this Court made orders fixing the matter for hearing today and giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Authority’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness. The Court explained that in summary the Court was considering whether the Authority’s decision was unlawful or unfair. The Court explained that it had also taken into account whether the Authority engaged in any relevant legal error as alleged in the grounds in the application. The Court explained that if satisfied the Authority had engaged in any relevant legal error, the decision would be set aside and sent back for further review. The Court explained that if not satisfied the Authority had engaged in relevant legal error, the application to this Court would be dismissed with costs.

3. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

4. From the bar table, the applicant maintained that he had problems remembering dates and that that was because of his journey to Australia and what had happened to him. The applicant referred to having destroyed his passport before he came to Australia because he was worried he would be sent back and that all he had was a green card. The applicant’s submissions from the bar table, in substance, invited this Court to engage in impermissible merits review. This Court does not have power to revisit the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

5. The grounds in the application are as follows:

   1. The Immigration Assessment Authority “IAA” based its decision on no evidence.

   2. The IAA erred in applying the country information on the given case, in contravention to the ministerial direction 56.  

Ground 1

1. In relation to ground 1, the unparticularised general assertion of the decision being based on no evidence is not capable of making out any relevant legal error. On the face of the Authority’s reasons, the Authority took into account the applicant’s claims, evidence and submissions and made findings open to the Authority on the material before the Authority. The proposition that the Authority’s adverse findings were not based on evidence is without substance. The adverse credibility findings by the Authority were due to numerous inconsistencies in the applicant’s evidence as summarised above and were open to the Authority for the reasons given by the Authority. The adverse findings cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by ground 1 of the application.

Ground 2

1. In relation to ground 2, there is again a generalised assertion that the Authority erred in applying country information, and as it is unparticularised this is incapable of making out any relevant legal error. In any event, it is apparent on the face of the Authority’s reasons that the Authority took into account relevant country information. It was a matter for the Authority what weight to give that country information. The adverse findings by the Authority taking into account the country information were open to the Authority and cannot be said to be illogical or unreasonable.

2. The proposition that the Authority erred in contravening a Ministerial Direction raised in ground 2 erroneously assumes that the Direction had application to Part 7AA of the Act. The direction did not. No jurisdictional error accordingly, is made out by ground 2.

Conclusion

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

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  5 June 2018