Fba17 v Minister for Immigration - [2019] FCCA 184

FEDERAL CIRCUIT COURT OF AUSTRALIA

FBA17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 184

Catchwords:
MIGRATION – Application for judicial review – protection visa – procedural fairness – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.424AA

Cases cited:

BMV16 v Minister for Home Affairs [2018] FCAFC 90

Applicant:

FBA17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2507 of 2017

Judgment of:

Judge Riethmuller

Hearing dates:

3 August 2018 and 25 October 2018

Date of Last Submission:

25 October 2018

Delivered at:

Melbourne

Delivered on:

31 January 2019

REPRESENTATION

The Applicant appeared In Person

Counsel for the First Respondent:

Ms Spencer

Solicitors for the First Respondent:

DLA Piper Australia

ORDERS

The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2507 of 2017

FBA17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the AAT’) made on 26 October 2017, affirming a decision of a delegate (on 3 May 2017) refusing to grant the applicant a protection visa.
The applicant arrived in Australia as an unauthorised maritime arrival on 21 October 2010. The applicant applied for a Temporary Protection visa on 23 December 2016.
The matter has had a protracted history, as set out by the first respondent in written submissions filed 20 July 2018:
4 The applicant has a protracted immigration history since arriving as an unauthorised maritime arrival on 21 October 2010. [FN: This has been taken from the delegate’s decision record dated 3 May 2017].
4.1 The applicant applied for a Refugee Status Assessment, which was finalised on 2 May 2011. The delegate found that the applicant was an Iraqi born stateless Faili Kurd who had been residing in Iran. The delegate accepted that Faili Kurds faced discrimination in Iran but that the harm feared did not amount to persecution.
4.2 The applicant sought Independent Merits Review, which was finalised on 27 July 2012. The Reviewer found that the applicant was a Faili Kurd born in Iraq and that he was now a citizen of Iran, and did not accept that Faili Kurds are at risk of serious harm or discrimination due to their ethnicity.
4.3 A Stateless Status Assessment was completed on 18 February 2014. The Department contacted the applicant's employer in Iran who stated that the applicant was an Iranian citizen with Iranian documents. It was concluded that the applicant was a documented Iranian national. It was also concluded as part of this Assessment that training certificates submitted by the applicant were fraudulent.
4.4 An International Treaties Obligation Assessment was initiated on 15 May 2015 in relation to the disclosure of the applicant's information on the Department's website in January 2014. It concluded that there was no credible information to dispute the previous findings that the applicant was a citizen of Iran.
The applicant was represented by an agent during the administrative processes, but unrepresented before the Court. Despite orders for the filing of an outline of argument made by a Registrar, the applicant filed no documents beyond his application and initial supporting affidavit.

The Applicant’s Claims

The applicant claims to have been born in Iraq but expelled from Iraq with his family in 1980 at 13 years of age, and to have lived illegally in Iran from that time until he came to Australia in October 2010. The applicant said that he is a Faili Kurd and of Shia religion. The applicant provided his Iranian white card, an education document from Iraq, and his father's military service book.
The applicant said that in Iran he had no rights as he is a stateless Iraqi Faili Kurd, resulting in no right to work, education, or healthcare. The applicant also said that he suffered physical assaults by the Basij. The applicant also feared return as a failed asylum seeker.

The AAT’s Findings

The AAT rejected the applicant’s claims, noting that he had worked for a company owned by the Iranian Revolutionary Guards, and that they would be likely to closely review employees: see [27]. Thus it was concluded that the applicant had work rights. The AAT also found that the applicant had the opportunity to apply for naturalisation in Iran.
Relying upon country information, the AAT concluded that the applicant did not face a real chance of serious harm based upon his ethnicity. The AAT also considered that the applicant would not face a real risk of serious harm as a returned failed asylum seeker.

Ground of the Application

The applicant’s ground of application, as set out in the application form, is as follows:
1. The decision of the Tribunal:
(a) is affected by an error of law; and
(b) denied the applicant procedural fairness.
The applicant was unable to articulate any arguments that went to a ground for judicial review when the matter was first listed before me for a show cause hearing. However, at that hearing I raised with counsel for the Minister the possibility that the principles identified in BMV16 v Minister for Home Affairs [2018] FCAFC 90 may, by analogy, have some application in this case. The matter was adjourned for the parties to put any further outlines and present arguments on this issue. As this falls generally within the concept of procedural fairness, I will deal with it under ground 1(b) of the application.

Ground 1(a) – Error of law

The applicant did not provide any written outline of argument, nor identify any error of law at the hearing in this court. The AAT appears to have correctly applied the legal principles, which it summarised at the start of the decision. On the material before the AAT, the findings of fact and exercises of discretion were reasonably and logically open to the AAT. It is not open to this court to engage in merits review.
In the circumstances, this ground cannot succeed.

Ground 1(b)

As with Ground 1(a) the applicant did not articulate any particular argument in an outline. The AAT did put various items of information to the applicant under s.424AA of the Migration Act 1958 (Cth): see [22]. Whilst, on the Minister’s case this was not necessary, it is not a judicially reviewable error to put information under s.424A that need not be dealt with in accordance with that section.
Part of the process of reasoning by the AAT resulted from information being put to the applicant. The AAT said:
20. At the Tribunal hearing the applicant explained that he began working with [S] in 2004/2005 in Bandar Abbas. He was working for a contractor of [S] as a casual worker on [S] projects. He would have work for about 3-4 months every year but he said that he didn't have any right to work for [S]. He continued to work with them every year, sometimes 6 months a year, sometimes 8 months a year, sometimes every 4 months. He claimed that they continued to hire him because they benefited from employing an undocumented person. He remained with them for 4 years (2005-2009). The Minister's delegate in their decision, provided to the Tribunal by the applicant, included information identified by the Department of the applicant working for [T], an Iranian company that country information suggests is owned by the Islamic Revolutionary Guards.
21. In the applicant's protection visa application under the section 'Past Employment' the applicant wrote '1993-2010 Garage/workshops in [X]’. I put to the applicant why he hadn't mentioned working in the port of Bandar Abbas in the southern province of Hormozgan. He responded that when he lived in [X] he would work as a casual labourer and he would be hired from there to work in various locations including Bandar Abbas.
22. I put to the applicant under s 424AA that there was adverse Information from the Department's Stateless Status Assessment and the Independent Merits Review decision of 2012. This included from the Assessment a reference to the applicant's Facebook page which said that there was a photograph of him in a [T] uniform and a comment that he was [T’s] ambassador to Australia, along with information from the Merits Review decision which stated that the applicant had claimed that he hadn't worked for longer than 15 days with the same employer and that he had put a view that government officials inspect worksites and if they find foreigners they are charged with an offence.
23. The applicant admitted that he had a Facebook page. With regards to the [T] uniform the applicant responded that all sub-contractors had [T] uniforms and even 'tags’ with their photo and the [T] logo. Regarding the comment that he was [T’s] ambassador to Australia he denied that he was.
24. In the Independent Merits Review decision of 2012 the applicant claimed that he had worked in [X] unofficially at a number of workshops. He said that the longest period he had worked anywhere being 15 days and that he moved from job to job. I put to him that earlier at the Tribunal he had said that he had worked for four years for [S] of which sometimes he worked six months a year and sometimes 8 months a year. He responded that the difference in time doesn't matter. I pressed him on this matter and he continued to avoid responding. Upon further pressing he repeated that he worked for a contractor for a 'period of time'. He clarified that he was a casual working from time to time amounting to 15 days in some months and in other periods up to 4 months.
25. He stated during the Independent Merits Review as recorded in the decision record that government officials inspect work sites and if they find foreigners they are charged with an offence. I asked him why he was never caught. He responded that in Iran every contractor pays money before an inspector comes. I put to him that that's not what he said last time. He responded that it was a fault from the interpreter's side. The interpreter, he claimed, spoke a different dialect. I said that l don't accept that answer and read the whole paragraph.
I advised the claimant that it was my understanding that, while Faili Kurdish refugees do not have a legal right to work in Iran the authorities usually turned a blind eye and allowed them to work. The claimant said that this was not correct as government officials inspected workplaces and if they found a foreigner working there the owner and worker would be charged with an offence. [88]
I put to him that it seems to me that his answer is changing depending upon the circumstance. He responded that he had said the truth previously, namely that he wanted to work and didn't care the type of work. I asked him again why he wasn't caught by Iranian officials and he said that his contractor bribed officials. I put to him that it is hard for me to believe that he could avoid being caught working in a port because it is a highly secure environment. He responded that he received an ID and that when authorities saw a person in a uniform and holding an ID they didn't care and didn't ask.
The relevance of this material becomes apparent clear from the reasoning and findings in the following two paragraphs:
26. In considering the evidence I note that [T] is a company owned by the Iranian Revolutionary Guard, that the applicant worked in a port which is located in a sensitive region abutting the Strait of Hormuz, he had worked there on a regular basis for a period of four years including wearing a [T] uniform and carrying an ID. The applicant has put to the Tribunal that he worked illegally but was never caught as his employer would bribe official inspectors.
27. I now turn my mind to whether the applicant had work rights and was working legally in the secure port facility managed by the Iranian Revolutionary Guard. The IRGC was formed on the orders of Ayatollah Ruhollah Khomeini in May 1979 'primarily for the purpose of securing the revolution from internal challenges' [FN omitted]. According to the Council on Foreign Relations, the IRGC 'fields an army, navy, and air force, while managing Iran's ballistic missile arsenal and irregular warfare operations through its elite Quds force and proxies such as Hezbollah'. [FN omitted]. … For an institution that is critical to the revolution, is responsible for the ballistic missile arsenal and oversees Quds forces and combines this with a vast economic footprint I find it would be extremely unlikely that they would not vet their subcontractor's employees and prevent corruption in determining who has access rights to a strategically important port. Furthermore, I note that the applicant had provided contradictory information on his employment between the Independent Merits Review interview and before this Tribunal. The differences are substantial and put into question his credibility on matters related to his employment. As such for the applicant to have worked in the capacity that he has claimed at the Tribunal and confirmed by the Department's investigations, as summarised in the decision notice provided by the applicant to the Tribunal, I find that he must have had work rights. (emphasis added)
The reasoning largely stands on its own, without reference to the statement that the applicant is alleged to have made earlier. However, in the passage that has been emphasised in the quote above, there is reliance upon the differences in the versions given by the applicant at different hearings as a matter that tells against his credibility. That difference seems to be:
a)Before the Independent Merits Review (‘IMR’) (in 2012), the applicant is alleged to have stated that employers would be charged with an offence for employing Faili Kurdish refugees; and
b)In submissions prepared by the applicant’s migration agent in April 2017, little was said about employment, although it was not alleged that the applicant could not work, nor that employers would be prosecuted: see Court Book (‘CB’) p.143. The submissions state:
· There is no right to work, meaning workers without Iranian documentation such as himself tend to be labourers or work low level, casual jobs with high risk and are paid in cash. [FN omitted].
c)Before the AAT the applicant said that employers would pay bribes to officials to avoid problems with employing Faili Kurdish refugees.
Counsel for the Minister argued that the information from the Facebook page was admitted by the applicant (see [23]) and that it reflected information that was supplied by the applicant himself in his statement: see CB p.131. In that statement the applicant said:
30. In 2004 I started as a casual worker with a sub-contractor company called Seadolf. Seadolf was sub-contracted under the main contractor company called Tidewater. Ashraf Husseini was sub-contracted under Seadolf. It was Ashraf who employed me as a hydraulic mechanic. I worded at the port of Bandar Abbas which is in the south of Iran, on the Persian Gulf.
31. I worked casually for Ashraf Husseini for Seadolf on and off. My work depended upon when they needed me. When I worked I had to wear the Tidewater uniform, however I did not have access to the Tidewater company because I worked through Ashraf. I was only allowed to go to the areas I was approved to go to. I am aware of many others like me who worked at the Tidewater property and were undocumented and did not have Iranian citizenship, including Afghan refugees. These people tended to be the labourers or low level workers and not management. We were paid in cash.
Whilst the information from the Facebook page matches the statement to the extent that it shows he worked for the company, the statement does not make the admission that the applicant was described as the company’s ‘ambassador to Australia’, which the applicant denied.
Counsel for the Minister argues that the material was adequately put to the applicant pursuant to s.424AA of the Act, and thus the AAT’s obligation with respect to procedural fairness on this issue was discharged (due to the effect of s.422B of the Act).
Counsel also argues that the information given at the IMR hearing did not come within the ambit of s.424A of the Act as:
(a) it did not in its terms contain a ‘rejection, denial or undermining’ of the applicant's claim to be a refugee – indeed, it was information that one might have thought supported his Convention claims; and
(b) the information only became material because the Tribunal found that it was inconsistent with evidence given to the Tribunal (at [24]-[25] CB 349) which led to the Tribunal finding that the applicant was not a truthful witness on matters related to his employment (at [27] CB 350). However, neither the inconsistency nor the comparative process constitutes ‘information’ for the purposes of s 424A(1). [FN: SZBYR (2007) 235 ALR 609 at [18]; SZTNL v Minister for Immigration (2015) 231 FCR 204 at 220 [53] (Griffiths J).]
In BMV16 the Full Court was considering the operation of provision in Part 7AA of the Act, relating to the requirement to put an applicant on notice of relevant information. The reasoning at para [96] makes clear that a power to put information and require an immediate response can be exercised in a way that is legally unreasonable in the context of particular cases. I see no reason why the underlying reasoning in BMV16 would not apply across the statutory scheme, after appropriate regard to the context and wording of particular provisions designed to provide an applicant with an opportunity to respond to material.
In this case, the IMR decision was referred to by the Delegate in the delegate’s reasons in May 2017, where it is said that:
Independent Merits Review (IMR)
On 27 July 2012, the IMR found the applicant to be a Faili Kurd born in Iraq and a citizen of Iran. The reviewer found the applicant's claims of departure from Iran on a fake Iranian passport to not be credible and rather it was found that the applicant departed Iran on a genuine passport in his identity. It was not accepted that Faili Kurds are at risk of serious harm or discrimination because of their ethnicity [FN: ADD2012/1002260]. The IMR concluded that based on numerous inconsistencies and misrepresentations in his claims, the applicant was found to be a citizen of Iran.
The IMR decision had been made on 27 July 2012, long before the current proceedings. In the reasons the following passages appear:
86. The claimant said that in [X] he had worked unofficially at a number of mechanical workshops. He said that his father had been a mechanic and he learned mechanical skills from his father. He said that he was a self-employed specialist and moved from job to job as people needed his skills. He usually only worked for the same person for a few days. The longest period he had worked anywhere was 15 days and he had only remained at that job for this period to finish a training course.
…
88. I advised the claimant that it was my understanding that, while Faili Kurdish refugees did not have a legal right to work in Iran the authorities usually turned a blind eye and allowed them to work. The claimant said that this was not correct as government officials inspected workplaces and if they found a foreigner working there the owner and worker would be charged with an offence.
89. When asked if he had any problems while working in [X] the claimant said that he had always worked with friends and tried to avoid problems.
90. The claimant said that he often worked in the [Y] area where there were many garages. He said that he was often stopped and asked to show his identity documents. Sometimes people treated him well, sometimes they insulted him and called him an Arab.

There is no transcript of what occurred before the IMR, nor does there appear to have been a transcript or recording of the proceeding before the AAT. No transcript of the hearing was provided to the Court. However, the veracity of the interpreting, and the issues arising from what was said were discussed in the delegates decision (which the applicant provided to the AAT). The delegate noted (at CB pp.163-164) that:
The applicant claimed that there may have been an error with the interpreting during these interviews and maintains that he has been consistent in his claims. After the natural justice break, the applicant's representative noted that the applicant has used a Kurdish interpreter in previous dealing with the Department, such as during the Entry interview, RSA and IMR. I note that the applicant's Entry and RSA interviews were both conducted with a Kurdish interpreter, however departmental records indicate that a Kurdish Faili interpreter (ID 5357) was used for the IMR. Regarding the departmental Stateless Status Assessment, I have listened to the recording of interview and note the applicant initially confirmed that he understood the interpreter and was advised by the officer that he should notify the officer if he is experiencing difficulty with language and interpretation. As the interview progressed, the applicant raised concerns in relation to the interpreting, consequently the interview was suspended. [FN: CLD2013/12424604]. The interview was resumed on another occasion and there is no evidence that the applicant raised concerns with the interpreting on this occasion. [FN: ADD2014/59003]. I am therefore satisfied that the applicant has had ample opportunity to discuss his protection claims through appropriate interpreters.
The applicant was clearly on notice that the IMR materials were being used, and that his dispute as to the interpreting had been rejected by the delegate. The delegate had also noted that certificates had been forwarded to the Department by the applicant, which he had received by email from the relevant company. Whilst a copy of his Facebook page was not provided in advance of the hearing (nor is it included in the Court Book), it was not the first time that he had been taxed with this evidence: in the Stateless Status Assessment it was also raised (at CB p.44), although this was in 2014.

Conclusion

In the context of the case as a whole it does not appear that it was, on a practical level, legally unreasonable to put the matters to the applicant under s.424AA in the context of this case.
I therefore dismiss the application.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 31 January 2019