GLQ18 v Minister for Immigration

[2020] FCCA 687

FEDERAL CIRCUIT COURT OF AUSTRALIA

GLQ18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 687

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise Visa – whether the Authority rejected the applicant’s claims for protection on the basis of adverse credibility findings – whether the Authority ought to have arrived at a different conclusion – whether the Authority failed to afford procedural fairness – whether the Authority made a jurisdictional error – no jurisdictional error made out – application is dismissed.

Legislation:

Migration Act 1958 (Cth), s.36

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510
ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437

Applicant: GLQ18

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3482 of 2018

Judgment of: Judge Humphreys

Hearing date: 17 March 2020

Date of Last Submission: 17 March 2020

Delivered at: Parramatta

Delivered on: 17 March 2020

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Mr Jeyakkumar, HWL Ebsworth Lawyers

ORDERS

1. The name of the first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The application is dismissed.

3. The applicant to pay the first respondent’s costs fixed in the amount of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 3482 of 2018

GLQ18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from Transcript)

Introduction

1. The applicant claimed that he was a stateless Faili Kurd from Iran. On 13 June 2013, the applicant arrived at Christmas Island as an Unauthorised Maritime Arrival. On 7 October 2016, the applicant applied for a Safe Haven Enterprise visa (SHEV). On 21 September 2018, a delegate of the Minister for Immigration and Border Protection (“the delegate”) refused to grant that visa.

2. The delegate accepted the applicant was of Kurdish ethnicity but was not satisfied the applicant was committed to Kurdish activism or that he would engage in pro-Kurdish activities on return to Iran.

3. The applicant sought merits review at the Immigration Assessment Authority (“the Authority”). In a decision dated 14 November 2018, the Authority affirmed the decision of the delegate not to grant the applicant a protection visa.

4. The applicant now seeks judicial review of the Authority’s decision.

The Immigration Assessment Authority’s Decision

1. At paragraph 5 of its decision, the Authority outlines the applicant’s claims for protection, made in his SHEV application. They may be summarised as follows:

   ·The applicant is a stateless Faili Kurd. Due to his ethnicity and lack of citizenship, the applicant has experienced discrimination in education and employment.

   ·The applicant was arrested a couple of times by the Basij.

   ·The applicant’s family experienced discrimination and persecution from the Basij and he could not move freely around.

   ·The applicant is a Shia Muslim but does not practice in Australia.

   ·The applicant fears the Mami Tribe due to a relationship that his brother, who I will call F, had with a girl belonging to that tribe.

   ·The applicant left Iran using a false passport.

2. At paragraph 6 of its decision, the Authority notes that on 11 July 2018, two days prior to the applicant’s SHEV interview, he provided a supplementary statement amending his application. The applicant stated he was a citizen of Iran. The applicant’s earlier claim that the Basij would berate his family for lack of identification and that they could not move around freely is not correct. The applicant further claimed he experienced discrimination in Iran for reasons of his Faili Kurd ethnicity. The applicant would be mocked due to his Kurdish accent, was unable to sit his final high school exam and was arrested while working for reasons of his ethnicity.

3. The applicant strongly believes in the formation of an independent Kurdish State and is committed to Kurdish activism. The applicant is unable to do so in Iran but has been able to voice his views in Australia. The applicant is worried that Iranian people may have reported him to authorities for his views.

4. The applicant now admits using his own genuine passport to leave Iran.

5. At paragraph 7 and onwards of its decision, the Authority deals with the applicant’s claims. The Authority accepts the applicant is a national of Iran of Faili Kurd ethnicity.  

6. At paragraph 9 of its decision, the Authority found that the applicant chose to give false information about his citizenship on arrival to bolster his claims for protection. In paragraphs 10, 11 and 12 of its decision, the Authority deals with the applicant’s claims that he did not have any family in Australia. The Authority concludes that the applicant chose not to give the truth up until he was put on notice about information available within the Department. This casts grave doubts on the applicant’s overall credibility and supports the conclusion that he is not a credible witness.

7. At paragraph 15 of its decision, the Authority discusses the applicant’s claims of pro-Kurdish views. The Authority concluded that the applicant presented as a claimant of political activism, after he corrected the information about his citizenship to shift his evidence about his claim of fear of harm from being a stateless Faili Kurd to that of a pro-Kurdish activist. On the evidence presented by the applicant, apart from sharing and liking posts on Facebook, the Authority did not accept the applicant has been involved in any political activities in Australia or engaged with any person or groups of persons in Australia to express his views and opinions about the Iranian government or the treatment of Kurdish people in Iran.

8. At paragraph 19 of its decision, the Authority deals with claims that the applicant has expressed his political views on Facebook. While accepting the applicant is dissatisfied with the treatment of Kurdish people in Iran and is broadly supportive of Kurdish independence and rights, the Authority accepted the applicant has not engaged in sharing and posting some Facebook posts solely for the purpose of strengthening his claims to be a refugee.

9. At paragraph 23 of its decision, the Authority does not accept that the applicant and his family were involved with any dispute with the Mami tribe as claimed. The Authority was not satisfied that there was a real chance in the future that the applicant would be harmed by the tribe, if returned.

10. At paragraph 24 of its decision, the Authority finds the applicant was not involved in any pro-Kurdish political activities in Iran. On the information before the Authority, given the applicant left Iran legally using his own passport, the Authority was not satisfied the applicant was of any interest to authorities for any reason at the time of his departure.

11. In terms of the applicant’s internet-based activity, the Authority found, at paragraph 27 of its decision, it was very remote that the applicant’s social media activities had been monitored by Iranian authorities or that he would face any harm for reasons of having shared and/or liked posts dealing with Kurdish matters. The Authority was not satisfied, at paragraph 28 of its decision, that there was any real chance the authorities would monitor the applicant’s Facebook activities or that he would attract adverse attention for his past or future activities.

12. At paragraph 31 of its decision, the Authority considered the applicant’s non-practice as a Shia Muslim. At paragraph 32 of its decision, the Authority was not satisfied that there was a real chance the applicant would come to the adverse attention of authorities or would suffer harm for reasons of non-practice of his religion. The Authority notes that the applicant says he has lost his passport and this would require him to obtain new travel documents. Historically, Iran does not issue travel documents to involuntary returnees who arrived in Australia as the applicant did. If the applicant were to return, it would have to be on a voluntary basis.

13. At paragraph 34 of its decision, the Authority concludes its decision by considering the applicant’s circumstances as a whole and what is accepted in relation to his claims, including his Kurdish ethnicity, non-practice of his religion, Facebook posts, his views about the government’s treatment of Kurdish people in Iran or returning as a failed asylum seeker. The Authority was not satisfied that the applicant faced a real chance of serious harm from the authorities or any other person in the reasonable future in Iran.

14. At paragraphs 36 to 40 of its decision, the Authority deals with complimentary protection considerations. For the same reasons as outlined above, the Authority concludes the applicant does not meet complimentary protection guidelines, in that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Iran, there was a real risk that the applicant would suffer significant harm. The applicant does not meet s.36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”).

Grounds of Appeal

1. In an application filed on 12 December 2018, three grounds of appeal are set out. These are as follows, verbatim:

   1. I fulfilled the Migration Act 1958 criteria for refugee section 5H(a) because it is evident that if I go back to Iran, I am unable to protect myself from persecution.

   2.   I also satisfied the criteria of section 36(1A),(1B) and (1C) as I am not a risk or danger to Australian security.

   3.   And satisfy section 36(2)(a) and (aa) as there are established grounds to be considered that I will be significantly harmed on returning to Iran.

The Applicant’s Submissions

1. The applicant appeared before the Court unrepresented. The applicant was assisted by a Kurdish interpreter. Prior to the Court hearing, the first respondent’s submissions were interpreted to the applicant and he advised the Court that he understood both the submissions and had in his possession, a copy of the green Court Book. The applicant was provided with writing materials to assist him in the taking of notes.

2. The applicant was advised that there was a possibility of the decision being handed down orally, but that he was able to apply for a written copy of the reasons or listen to a copy of the recording of the hearing, if he so wished.

3. At the conclusion of the submissions, the applicant was given the choice of either an ex tempore decision or the decision being reserved and written reasons produced at a later point. The applicant indicated to the Court that he preferred to have a decision here today, so that he would know what was happening to him.

4. Notwithstanding Court orders, no written submissions in support of the applicant’s application were provided. The applicant did, however, file an affidavit dated 3 March 2020. In that affidavit, the applicant repeated his assertion that despite being an Iranian citizen, he has never considered himself as such and is a Feili Kurd. The applicant stated he did not tell the truth initially as he did not wish to put any people at risk by mentioning their names as they were in danger from Iranian spies in Australia.

5. At paragraph 11 of the applicant’s affidavit, he indicates that he was too scared to tell authorities that his uncle was a member of the Peshmerga and was killed by Iranian Sepah (Revolutionary Guards) when the applicant was of a young age.

6. The applicant says that his family is still fighting for independence of Kurdistan. The Iranian government considers the Peshmerga to be a terrorist group. The applicant stated that Iranian security forces went to his family home and told his parents that they knew he was in Australia and wanted to know why he was there. The applicant claimed he cannot go back to Iran now. The applicant claimed that he will be killed because “they all know I’m in Australia”. The applicant states he will go back to Kurdistan, once independence is achieved for Kurdistan as a state.

The First Respondent’s Submissions

1. In relation to Grounds 1 and 3, the first respondent submits that to the extent these grounds assert that the applicant satisfies the various sections of the Act and should be granted the visa, this is not a relevant matter for the Court to examine. The Authority rejected the applicant’s claim for protection on the basis of adverse credibility findings, which were open to it. In substance, these grounds go no further than asserting the Authority should have come to a different conclusion on the merits. These grounds must fail.

2. In relation to Ground 2, the first respondent submits it was open to the Authority to find that the applicant did not satisfy the requirements of s.36(2) of the Act, on the basis that he did not satisfy either the refugee protection or complimentary protection criteria.

3. Accordingly, s.36(1B) and s.36(1C) of the Act are not relevant, as the applicant did not satisfy the requirements of s.36(2) of the Act, it follows the applicant could not have satisfied section 36(1A) of the Act. This ground also fails.

Consideration

1. It is well established that the Authority is not required to accept uncritically, any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at [451]). The Court is satisfied that the Authority’s findings were open to it on the evidence, the materials before it and for the reasons it gave, including adverse credibility findings. Those findings were not tainted by any failure to afford procedural fairness or reaching a finding without a logical, probative basis or legal unreasonableness (see ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at [84]).

2. The Court is satisfied in the circumstances that Grounds 1 and 3 do not identify any jurisdictional error on the part of the Authority. They appear more to be at a disagreement with the findings and conclusions of the Authority. The applicant’s complaints, such as they are, invite merits review, which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53] to [54]).

3. In relation to Ground 2, the Court is satisfied that the applicant did not properly satisfy the requirements of s.36(2)a) or s.36(2)(aa) of the Act. Accordingly, s.36(1A), s.36(1B) and s.36(1C) of the Act are irrelevant to this particular applicant and the consideration of his claims. This ground must also fail.

4. As the applicant is unrepresented, the Court has carefully considered the decision of the Authority. The Court is satisfied there is no jurisdictional error apparent on the face of the decision, which has not been articulated by the applicant.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:  

Date:  1 April 2020