FVU18 v Minister for Home Affairs

[2019] FCCA 1906

FEDERAL CIRCUIT COURT OF AUSTRALIA

FVU18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1906

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed

Legislation:

Migration Act 1958 (Cth): s.473GB

Cases cited:

N/A

Applicant: FVU18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 1175 of 2018

Judgment of: Judge Vasta

Hearing date: 4 July 2019

Date of Last Submission: 4 July 2019

Delivered at: Brisbane

Delivered on: 4 July 2019

REPRESENTATION

The Applicant appearing on his own behalf with the assistance of an interpreter

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The Application filed on 9 November 2018 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1175 of 2018

FVU18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 23 October 2018, the Immigration Assessment Authority (“the IAA”) affirmed a decision of the delegate of the Minister not to grant the Applicant, FVU18, a protection visa.  On 9 November 2018, the Applicant filed an originating application in this Court asking this Court to review that decision. 

2. The background to the matter is this.  The Applicant is a citizen of Iran born in 1999 in Ilam Province, Iran.  His claim, in his application for protection, was that he was of Kurdish ethnicity and was stateless.  He claimed that due to his ethnicity, he could not access basic public amenities, and was discriminated against in his employment.

3. He said that he was accosted by authorities for practising his cultural traditions and customs, and was prevented from attending Kurdish cultural gatherings.  He claimed that he did not go to university and did not complete military service because his parents did not have birth certificates. 

4. He was born a Muslim, but he does not practise and he has no religion.  He claimed that, in 2009, that he was arrested whilst walking home because he was in the proximity of protests that were occurring because of the presidential election that year.  He said that there were other occasions where he was subjected to abuse by the authorities for not complying with dress code standards.

5. He said that in October 2012, he took a photo with an American flag printed on a towel and he was subsequently detained for three days where he was interrogated and tortured.  He went to Court, was charged with some offence but was released on bail. 

6. He said that after his release, he departed Iran on a fraudulent passport in January 2013 and ended up in Australia as an irregular maritime arrival.  He said that he fears harm if he were to return to Iran because he had attempted to seek asylum in Australia, and after departing Iran, he said the police came to his home to make inquiries about his whereabouts.

7. The IAA looked at all of those claims and looked at all of the material.  This material included his biodata interview when he first came to Australia and his entry interview. It also included his written application for protection as well as his protection visa interview.

8. In going through all of the material and assessing the claims, the IAA came to a conclusion that the Applicant was not a credible witness.  This started with his claim as to citizenship.  He had said that he was stateless because he did not have any formal Iranian documentation that citizens of Iran were ordinarily entitled to; however, he did have an Iranian birth certificate which was given to the department on 15 July 2017. 

9. His explanations to the department were extremely unsatisfactory in that he said that only he and two of his siblings out of nine had Iranian birth certificates.  He said that he got a birth certificate because of his education, but there was no country information that would support such a contention.  It was also inconsistent with his claim that he could not continue education because his parents did not have birth certificates because the birth certificate that he provided made reference to who his parents were and their birth certificates.

10. Eventually, in the protection visa interview, the Applicant admitted that he and his entire family are Iranian citizens.  Because of this, the IAA was satisfied that the Applicant was an Iranian citizen, had been issued a birth certificate and therefore the IAA did not accept the Applicant’s claim that he could not attend a secondary school or university because his parents did not have birth certificates. 

11. He had also claimed that he and his family did not have National Identity Cards; however, because he was an Iranian citizen, the country information showed that there was nothing that would have prevented the Applicant being given or granted a National Identity Card. In the biodata interview, the Applicant referred to his having a National Identity Card. 

12. The IAA then looked at what the Applicant claimed to be his illegal departure and military service.  The Applicant said that he had departed Iran on a fraudulent passport because he was not entitled to an Iranian passport because of his ethnicity;  however, as an Iranian citizen, he was entitled to a passport, and the IAA did not accept that he was prevented from obtaining one.

13. During the protection visa interview, he claimed that he was not entitled to a passport because he had not completed military service or continued study at university, but the IAA noted the country information indicated that an Iranian male over the age of 18 in most cases would have to have completed their compulsory military service unless they are exempt.  The Applicant was 23 when he departed Iran and referred to the fact that he had a military service exemption document during the biodata interview.

14. The Applicant denied that he had such a card when he was interviewed in his protection visa interview, but the IAA looked at the fact that there was specific reference to such a card in that biodata interview.  The IAA came to the conclusion that they were not satisfied the Applicant had any outstanding military service obligations in Iran.  The IAA was satisfied that the Applicant departed Iran on his own genuine passport, which he disposed of en route to Australia.

15. The IAA then looked at the ethnicity of the Applicant who had claimed that he was discriminated against and oppressed because of his Kurdish or Feyli Kurdish background.  The IAA referred to quite a deal of country information, especially that from DFAT reports, and those DFAT reports were inconsistent with what the Applicant was claiming was his experience as a Feyli Kurd in the Ilam Province.

16. The IAA looked at the claims that the Applicant made that he was accosted in public places by the police for practising cultural traditions and customs. However, the Applicant was questioned in detail about these matters in the protection visa interview.  The IAA noted that during the protection visa interview when discussing those claims, the Applicant vaguely said, “How all this is happening … in details I cannot tell you.”  The IAA concluded that the Applicant did not experience these things personally.

17. The IAA did not accept that the Applicant was restricted from attending school or had to pay for his education or healthcare on the basis of his ethnicity.  The IAA did not accept that the applicant had been denied employment in Ilam due to his ethnicity and considered that it was more likely that he struggled to find employment due to the poor economic situation in that province.

18. The IAA did not accept that the Applicant had been accosted or harassed for practising Kurdish culture or tradition or customs or was prevented from attending Kurdish cultural gatherings or that he was arrested for wearing tradition Kurdish clothes.  The IAA was not satisfied that the Applicant was a political activist or that he has been or there is a real chance that he would be imputed with a political opinion against the Iranian regime or a pro-Kurdish on the basis of his ethnicity.

19. The IAA also took into account that the Applicant was born and resided in Ilam and the majority of residents in Ilam were Feyli Kurds.  On that evidence, the IAA was not satisfied that the Applicant would be subject to a level of discrimination or other harm from Iranian authorities or any other group due to his ethnicity that would amount to serious harm.

20. As far as his religious beliefs were concerned, the IAA accepted that the Applicant was born a Muslim but did not practice and simply believes in God and had not converted to any other religion. He claimed in his interview that he would be questioned about his religion and be given a hard time because of those beliefs. 

21. The IAA then contrasted what the Applicant had said with what country information was available in the DFAT report.  The IAA concluded that they were not satisfied that the Applicant’s religious views would come to the adverse attention of the community or Iranian authorities because he would not engage in public manifestations of the Shia faith.  The IAA was not satisfied that the Applicant faced a real chance of harm in Iran because of his religious views.

22. The IAA then looked at the claim the Applicant made about his arrest in 2009.  His claim was that he was arrested because of his proximity to a protest and his release was after he signed an undertaking that he would not join in any protest or participate in political gatherings.  Whilst the country information indicated that thousands of demonstrators were detained and beaten and harassed by security forces, the IAA had concerns about the credibility of his claim.

23. In his statement for the protection visa, he claimed that he had never participated in political protests, but during his entry interview, he claimed that he had been involved in protests during that election.  Because of those contradictions and the question mark over the Applicant’s overall credibility, the IAA did not accept that he had been involved in any protest during those elections and did not accept that he was arrested whilst walking home.

24. With regard to the 2012 arrest, the Applicant claimed that he purchased a towel with an American flag on it.  He said that his brother took a photo of it and that the Applicant subsequently showed the photo to some friends.  He said he was arrested in December of 2012 and taken to the police station, detained for three days and was tortured and interrogated about the photo.  He said he was then taken to Court and charged with taking the photo but claims that there was no paperwork in relation to the charge.

25. He said that the Judge who looked at the case ordered that he be returned to detention and that he would be sentenced to five years in jail if he did not confess the offence.  He said that his family was able to bail him out by giving the deed to their family home as a guarantee.  He said that after his release, he fled Iran.  He said that the police came to his family home to make inquiries about his whereabouts and ask him to return to the police, and they interrogated his family about the photo. He said his family was only recently given back the deed to the family home when it was confirmed that the applicant was no longer in Iran. 

26. The IAA did not accept that this incident occurred.  The IAA pointed out the inconsistencies in that particular story.  The towel was a towel of the American flag and the Applicant said he purchased it because he liked the design.  The IAA found it difficult to believe that he would purchase a towel with an American flag for its design, knowing that that design was controversial.  The IAA found it difficult to accept that the brother would take a photo of that for no reason. 

27. During the protection visa interview, the Applicant couldn’t say how it was that authorities found out about the photo, but speculated that his family or friends could have told them.  He couldn’t provide any credible basis upon which they would do that other than to say that maybe it was a family member who worked for the government, but he didn’t specify any family member who did work for the government. 

28. In his statement, he had claimed that it was the deed for the family home that had been posted to get him bail. But during the visa interview, he claimed it was his brother’s friend who posted the deed of his shop in order for the release on bail.  The delegate pointed this contradiction out to him, and his reply was that it must be a mistake.  But the delegate pointed out that the statement was quite specific in this regard, because it talked about the family getting the deed to the house back after it was confirmed that the Applicant wasn’t in Iran anymore. 

29. The IAA noted that the Applicant had no details of his bail conditions or when he was supposed to go back to Court.  And the IAA did not accept that this was because of the fluxion of time, given the significance of the event in that it was supposedly the event that caused him to flee the country.  The IAA found it implausible that there was no paperwork to support this alleged detention, and there was no documentary evidence in relation to his release on bail. 

30. Also of interest was that the Applicant did not raise this incident during his entry interview as to why it was that he left Iran.  He said in his statement that he didn’t raise this because he was scared of disclosing this information and he didn’t want to talk about it until he know who his lawyer was.  The IAA was not satisfied of this explanation, given that the Applicant says that this was the main reason for his departure from Iran. 

31. The IAA noted that the Applicant raised other complaints against the Iranian authorities during his entry interview, so there does not seem to be any reason why he would not explain the “true reason” for him leaving Iran.  The IAA did not accept that this incident occurred and did not accept that the family had been approached by authorities since the Applicant’s departure from Iran for any reason.  The IAA was not satisfied that the Applicant was of any adverse interest to authorities at the time of his departure for any reason. 

32. The IAA then looked at the Applicant’s claim about police harassment as to his not complying with religious dress standards and the police stopping him on the street because his hair was too long.  The IAA then looked at country information with regard to what occurred, especially in areas outside the main cities as where the applicant was living.  The IAA did not accept the claims and did not accept that the Applicant was detained because of his Kurdish clothing.  They were not satisfied he was detained on any further occasion.  The IAA did not accept any claim that the Applicant was stopped from attending English classes. 

33. The IAA then looked at the Applicant’s claim that he would be treated harshly because he would be seen as a failed asylum seeker.  The IAA noted that the country information was that travel documents are not issued to an Iranian who does not want to voluntarily return to Iran.  The country information indicated that it is not a criminal offence in Iran for any Iranian to ask for asylum in another country, and Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside of Iran. 

34. The IAA was not satisfied that the Iranian authorities impute failed asylum seekers with a political opinion against the Iranian government.  The IAA referred to a 2018 DFAT report that talked about what occurred, or what was occurring, to asylum seekers who were returned to Iran.  The IAA was not satisfied that the Applicant had any profile as a result of his ethnicity or that there was a real chance that he would attract the adverse attention of the Iranian authorities on his return for any reason.  The IAA was not satisfied that the Applicant will face a real chance of harm from the Iranian authorities or any other group due to being a failed asylum seeker from a Western country. 

35. The IAA concluded that the Applicant did not meet the criteria for the definition of a refugee. 

36. The IAA then turned their attention to whether the Applicant met the criteria for complimentary protection.  The IAA went through those matters, and for many of the same reasons that had already been discussed, came to the conclusion that the Applicant did not meet that criteria either. 

37. Having come to that conclusion, the IAA affirmed the decision not to grant the Applicant a protection visa. 

38. The ground of this application is this: 

    1. The Administrative Appeals Tribunal and the delegate of the Minister for Home Affairs erred in law in making his decision. 

39. There are, obviously, a number of problems with that ground.  Firstly, the Court has no authority to look at the decision of the delegate of the Minister for Home Affairs.  Secondly, the Administrative Appeals Tribunal was not the body that looked at this matter.  It was, in fact, the Immigration Assessment Authority.  Lastly, the ground is so vague and has no particularity.  It is absolutely meaningless.  The ground is a generic ground that the Court sees in many of these matters where people simply put in an application to somehow further the process. 

40. The Applicant has appeared in person today before me with the aid of an interpreter.  He said to me that he was told that his matter comes to this Court as part of the process.  He said to me that he didn’t know what his rights were and that he has expressed his case to the Minister, but he does not know if there were any errors made by the Minister or by the IAA. 

41. He said that he doesn’t really know why he is here.  He has simply been told that he had to come here, so he has turned up.  This is a problem that occurs where people feel that the resort to the Court is simply part of a never-ending process to attempt to stay in this country.  This Court is not simply part of a process.  This Court is here to ensure that the IAA or the AAT have conducted their inquiries according to law.  It should not be used as some form of lucky dip where a person decides to simply put a matter before the Court because they don’t know whether or not they will succeed or not. 

42. Having gone through the decision of the IAA as I have, it is clear that on the evidence that was before the IAA, the conclusions that they made were open on the material before them.  There is no jurisdictional error that has been occasioned by the IAA. 

43. As is proper in their role as the model litigant, the Minister has brought my attention to the fact that there was a certificate issued pursuant to s.473GB of the Migration Act 1958 (Cth) (“the Act”). The Minister now concedes that the certificate is invalid. However, because this was a matter that was dealt with pursuant to Part 7AA of the Act, there was no necessity for the IAA to provide the Applicant with that certificate. Accordingly, there was no procedural unfairness in failing to do so.

44. Therefore, having come to all those conclusions, the only option for the court to do is to dismiss this application with costs in the sum of $5,400.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Vasta.

Date: 2 August 2018