FYT18 v Minister for Immigration

[2020] FCCA 727

FEDERAL CIRCUIT COURT OF AUSTRALIA

FYT18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 727

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), ss.91W(1); 473DD

Applicant: FYT18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 613 of 2018

Judgment of: Judge Vasta

Hearing date: 11 February 2020

Date of Last Submission: 11 February 2020

Delivered at: Perth

Delivered on: 11 February 2020

REPRESENTATION

Counsel for the Applicant: Ms E. Carlean

Solicitors for the Applicant: D’Angelo Legal

Counsel for the First Respondent: Mr A. Gerrard

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. That the name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. That the Application filed 5 November 2018 is dismissed.

3. That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.

IT IS NOTED

(A)That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 613 of 2018

FYT18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOTHER

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 12 October 2018 the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant the Applicant, FYT18, a Protection visa.  By filing an originating application in this Court on 15 November 2018, the Applicant has asked this Court to review that decision.

2. The background to this matter is that the Applicant, in his application for a Safe Haven Enterprise visa, claimed to be stateless. The Applicant had been asked, pursuant to s.91W(1) of the Migration Act 1958 (Cth) (“the Act”), to provide documentary evidence of his identity, nationality or citizenship. The Applicant did not do this.

3. The claim by the Applicant was that he was born in Mashhad, Iran in 1988.  His mother was Iranian.  His father was Afghani.  He said that his parents’ marriage and his own birth in Iran were never registered.  He said that he did not have Iranian citizenship, but his father was able to obtain false identity documents for him and he is still stateless. Though, he later said that he is automatically entitled to Afghani citizenship and that if he is returned to Iran he will suffer persecution.

4. The IAA looked at the claims and looked at the whole of the circumstances with quite a deal of thoroughness.  The Applicant was asked about documentation. 

5. He said, at his entry interview, that he did have a military service ID card.  He said that he completed military service from 2007 to 2009 in Maragha.  He said that the card that he had was issued in 2009 and it was located in Iran, and he did not have that with him.

6. In his application for the Safe Haven Enterprise visa he said that he had never done military training in Iran.  He said that he made up a story about military service to support his Iranian identity and that he was never called to do military service because he was not registered as an Iranian citizen. 

7. At the SHEV interview, he said that was not feeling well at the time of the entry interview and that someone had told him that if he said that he was in a war, he would be accepted.

8. The IAA looked at these circumstances and had due regard to statements made by the Federal Court about caution to be exercised in relation to omissions by Applicants of matters at entry interviews, and to the Department’s own guidelines as to claims that are made at entry interviews.  The IAA also took into account that explanation the Applicant gave as to why he was more likely to be considered a refugee if he said he was in a war.

9. But the IAA did not accept all of those explanations as to why it was that the Applicant said that he had served in the military when he was spoken to upon entry, and why he now denies having served in the military.

10. The IAA noted that the different explanations in the Safe Haven Enterprise visa statement as opposed to the interview.  In the statement, he said that it was to support his Iranian identity, whilst at the interview he said that he was not feeling well at the time of the entry interview and had been told if you say you were in war, you would be accepted.  The inconsistencies were even more stark when the IAA noted that in the entry interview that the Applicant did not say that it was because he was in a war, or because he was in military service, that he left Iran.

11. The IAA noted that there was nothing independent of the Applicant to say that the Applicant was not well at the time of the interview and that it was conducted a month after he had arrived by boat, that the Applicant was 25 years old at the time that he was interviewed, and he had completed high school and was educated.

12. The IAA found that, on the material before it, the Applicant had actually undertaken two years of military service and, as he had acknowledged, this would have required him to be registered as an Iranian citizen.

13. As to his travel, the Applicant admitted that he had travelled out of Iran, back into Iran, and then out of Iran before he came to Australia.  He said, in his Safe Haven Enterprise visa statement, that he used his friend’s genuine Iranian passport to travel, and that his friend had sold it to him.  He said that he took the passport to a photo shop in Mashad and asked if they could make the photo look like him.  He said that the man in the photo shop manipulated the image on the passport to look like him and he was able to leave Iran without any problems.

14. At the interview, he said he used his friend’s passport and he paid a photographic person to put a photo in the passport, similar to the Applicant and his friend.  When the Delegate showed the Applicant a sample of the biodata page of an Iranian passport and put to him that it was not plausible that the passport photograph was altered in the manner described by him, the Applicant commented that, as the passport had not yet been issued, the photo of the friend was altered before the passport was issued. 

15. Again, the IAA noted the highly inconsistent nature.  The evidence in the statement was that there was an existing genuine passport of a friend and that the photo was altered, but then it was that the passport had not been yet obtained when the altered photo was produced.  Again, the IAA noted that the subsequent change only occurred after the Delegate expressed doubts about the Applicant’s evidence that the passport had been altered.

16. The IAA considered that this evidence was not credible.  The IAA went through the country information as to the way in which biometric passports for Iran are issued and the safeguarding by the sophisticated security features that would discover fraudulent passports extremely easily.

17. The country information indicates that, after check-in, a passenger goes to a counter where Immigration Police conduct a third security check.  Therefore, it is very unlikely that anyone can get through an Iranian exit centre with a false document given those security checks.

18. The Applicant did not claim, for example, that he had paid any bribes to officials to, as it were, look the other way while he used those documents to leave the country.  It was implausible, the IAA found, for the Applicant to have been able to use this fraudulent passport three times to exit and enter Iran.

19. The Applicant claimed when he turned 18 years of age he did not apply for citizenship.  The IAA accepted that if an Iranian woman takes a non-Iranian husband in marriage, that such a marriage must be registered with the government and that any child of such a marriage after the child has turned 18, has one year to apply for Iranian citizenship.

20. The Applicant said that his parents and he had tried to apply for citizenship and had not succeeded.  The Applicant provided a copy of his mother’s shenasnmeh.  That shows her photo, the names of her parents, the date and country of her birth, the place of issue, the name of the issuing officer and a serial number. 

21. The country information indicates that what the Applicant gave to the Department was the second page of this document.  The country information is that the third page of the document would contain information on the mother’s marriages, divorces (if any), the details of her children; and that information would be supportive or not supportive of the Applicant’s claims that his parents’ marriage and his own birth were not registered.  But such a page was not produced by the Applicant.

22. The IAA accepted that the mother was an Iranian citizen.  The IAA looked at the country information that reported that there were up to 26,000 marriages between Afghan men and Iranian women which had not been registered and that there were up to 100,000 children of such marriages that lack Iranian birth certificates and identity documents, which leaves them, as the IAA said, in legal limbo.

23. The Applicant claimed that the mother and father were one of those couples who had not registered their marriage and that he, was therefore, one of those 100,000 children that lack birth certificates and identity documents.  The IAA said that given the significant concerns they have about the Applicant’s credibility, that they did not accept those claims.

24. The IAA said that they did not accept that the Applicant was not an Iranian citizen.  They did not accept that the parents’ marriage was not registered and the IAA found that the Applicant is an Iranian national, and that Iran is his receiving country.

25. The IAA then looked at whether the Applicant, if returned to Iran, would face harm because he was a failed asylum seeker from a western country.  The IAA noted that the Applicant can only return as a voluntary returnee and so based the answer to that question on the basis that the Applicant returned voluntarily.

26. The country information, that the IAA looked at, was that it was not a criminal offence in Iran for any Iranian to ask for asylum in another country.  The Applicant had not left Iran illegally but if it were that he were to return voluntarily, he would do so on temporary documents obtained from an Iranian consulate.  This would mean that the consulate would be notifying the authorities of the return and that if the Applicant returned, he would probably face an hour or two of questioning from the authorities when he returned.

27. The IAA noted that the Applicant was not imputed to hold any anti-Iranian government political opinion.  The IAA said that there was nothing before them to indicate that the Applicant has been involved in any activities since arriving in Australia that would have brought him to the adverse attention of the Iranian authorities. The country information, from Department of Foreign Affairs and Trade and others, led the IAA to a conclusion that the Applicant would not face serious harm, amounting to persecution, on account of being a failed asylum seeker returning from residence in a western country.  Therefore he did not meet the requirements of refugee.

28. The IAA then looked at the complementary protection assessment and found that they did not accept that the treatment the Applicant may face upon return, which was questioned at the airport, amounted to significant harm.  They were not satisfied there was a real risk that the Applicant will be arbitrarily deprived of his life or be subject to the death penalty or torture.  Neither was there a real risk that he would be subjected to cruel in inhuman treatment or punishment or degrading treatment or any punishment or any harm for any reason. 

29. Therefore there were not substantial grounds for believing that if he were to return to Iran voluntarily that there was a risk that he would suffer significant harm.

30. The Applicant has only one ground for review and that is:

    (1) The Authority made a jurisdictional error in that it unreasonably concluded, and/or addressed the wrong question, namely the Applicant’s credibility, in concluding, that the Applicant is an Iranian citizen, alternatively, if he is an Iranian citizen (which is denied), that he does not have a well-founded fear of persecution.

31. The submissions made by Counsel for the Applicant were very thorough but they expanded that ground in this way. The representatives of the Applicant gave to IAA new material. That material was not accepted as coming within the parameters of s.473DD of the Act. The submission made to this Court is that the material given to the IAA should have been accepted and that, upon that material, as well as all of the other material that was before the IAA, the finding that the Applicant was an Iranian citizen was simply not open.

32. It was conceded by Counsel for the Applicant that if the finding that the Applicant was an Iranian citizen was not tainted by illogicality, then all other aspects to the challenge really go away.

33. With regard to the new information, the IAA noted that this information was that the Applicant is entitled to automatic Afghani citizenship and therefore he is an Afghani citizen, and is not stateless as he had originally submitted.  The country information, to which the Delegate had regard in relation to children born to Afghan men and Iranian women, whose marriages were not registered, focused on statelessness and was absent any analysis of their entitlements available under Afghan law.  This was new information as it was not before the Delegate.

34. It was argued that the Applicant had, effectively, been denied the capacity to put forward information which might clarify his citizenship status and that the Applicant, himself, was disadvantaged by his inability to understand his residency and citizenship status because he had totally relied upon his migration agent. 

35. It was noted, and conceded by the Applicant, that the former migration agent was an agent of 23 years, standing with an unblemished record of professional conduct, and that that agent had put forward coherent arguments in favour of the Applicant being stateless.

36. The submission made was that the fact that such an agent could put those arguments forward was testament to how complicated the area of law is. But the submission was that the former representative had confused the question of birth registration and entitlement to citizenship and had come to a conclusion that the Applicant was therefore stateless.

37. The IAA correctly identified this as new information. Because it was new information, the auspices of s.473DD of the Act applied. Even though this was not part of the ground, and it was not part of the written submissions, and this was the first time today that the Counsel for the Applicant or anyone on the Applicant’s behalf was putting this argument forward, I nevertheless granted whatever leave was needed for the Applicant to put these arguments forward.

38. The IAA had come to a conclusion that there were no exceptional circumstances to justify the IAA looking at this new information. None of it predated the Delegate’s decision and the information was such that it could have been provided to the Delegate before the Delegate made the decision. The IAA was not satisfied that the information was credible personal information which was not previously known, and if it had been known, may have affected the consideration of the Applicant’s claims. For those reasons s.473DD of the Act had not been met.

39. Realistically, the information is that the Applicant was entitled to Afghani citizenship.  It is put to me, that if that information had been considered, then the only possible outcome would be that the IAA could not have concluded that the Applicant was an Iranian citizen. It was submitted to me that such information was therefore compelling. 

40. With regard to the argument that the decision that the Applicant was an Iranian citizen was illogical was concerned, the submission really was that the IAA relied too much on credibility findings to make its decision.  The IAA noted that there was no evidence that the mother and father of the Applicant had registered their marriage, and that there was no evidence that the Applicant had utilised the mechanism available to him to apply for Iranian citizenship.

41. The submission was that the Applicant should have been accepted that he had made up the story about serving in the Iranian military and that the IAA was, more or less, required to ignore that statement from the entry interview because of the shortcomings that matters or omissions made in the entry interview were such that they cannot be relied upon, as much as statements that are then made in Safe Haven Enterprise visa statements.

42. It was also said that regardless of the Applicant’s credibility, even if he had done military service, the IAA could not conclude that the Applicant was therefore a citizen of Iran.  It is trite to say that for a decision of the IAA to be illogical or irrational, it must be that upon the evidence before it, it was simply not open for the IAA to have come to that conclusion.

43. With all respect to the arguments of the Counsel for the Applicant, the arguments as to why such a conclusion was not open simply were merits based arguments.  As I have recounted, in going through the IAA decision, there was ample evidence for the IAA to be satisfied that the Applicant was an Iranian citizen.  His statement as to military service was made at the entry interview.  It was not that he had omitted details at the entry interview.  He made a positive statement that this had occurred.

44. When that is coupled with the objective evidence that the Applicant left Iran, returned to Iran and left Iran again all on the same passport, and one takes into account the country information as to the unlikeliness and nigh impossibility of such being able to have been done upon a fraudulent document, there was ample evidence to show that such a conclusion, as was made by the Immigration Assessment Authority, was open.

45. When one couples that with the inconsistent explanations that have been given by the Applicant, which did damage his credibility, all of that is further material upon which the IAA could have come to the conclusion that it did.

46. It seems to me then that even if there were some problem with the IAA’s rejection of the new material under s.473DD of the Act, that such error, if there be one, was not a material one. If the evidence had been considered, all it could have shown was that the Applicant was eligible, or may have been eligible, for Afghani citizenship. None of that derogates from the evidence that was before the IAA that the Applicant actually did have Iranian citizenship.

47. It then seems to me then that it cannot be said that the decision of the IAA was illogical or irrational.  That is because such a decision was open.  As every other complaint about the decision of the IAA is centred upon this one finding, it means that if such a finding was open, then any other complaint against the decision has no merit either.

48. I therefore dismiss the application and order that the Applicant pay costs in the sum of $7,467.00.

49. I will amend the name of the First Respondent.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  2 April 2020