Kurd (a pseudonym) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 317
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kurd (a pseudonym) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 317
File number(s): MLG 2589 of 2016 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 6 May 2022 Catchwords: MIGRATION – application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise (subclass 790) visa – whether the Authority lacked jurisdiction on the basis that the applicant was not a ‘fast track applicant’ under s 5 of the Migration Act 1958 (Cth) – whether the Minister’s decision to lift the bar under s 46A of the Migration Act 1958 (Cth) was a dereliction of his duty under the Immigration (Guardianship of Children) Act 1946 (Cth) – where the applicant was a minor at the time of arrival – dispute in relation to the scope of the s 46A bar lift – whether the Authority’s decision was legally unreasonable because it found inconsistency in the applicant’s evidence where no inconsistency existed – no jurisdictional error established – application dismissed with costs.
PRACTICE AND PROCEDURE – where applicant administratively allocated pseudonym in Federal Circuit and Family Court of Australia in accordance with s 91X of the Migration Act 1958 (Cth) – where pseudonym consisted of letters and numbers – application to vary pseudonym to a “human pseudonym” – human pseudonym agreed by consent – orders made to vary pseudonym.
Legislation: Convention on the Rights of the Child, arts 7, 8, 9
Immigration (Guardianship of Children) Act 1946 (Cth), ss 6, 8
Federal Circuit Court of Australia Act 1999 (Cth), ss 88F, 88G
Migration Act 1958 (Cth), ss 5, 35A, 46A, 91X, 473DC
Cases cited: ASB17 v Minister for Home Affairs [2019] 268 FCR 271
Atkins v Minister for Home Affairs and Anor [2019] FCCA 245
Bennett v Minister of Community Welfare [1992] 176 CLR 408
BXT17 v Minister for Home Affairs (2021) 283 FCR 248
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
DSN16v Minister for Immigration and Border Protection [2021] FCA 202
Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 2010
Odhiambo v Minister for Immigration & Multicultural Affairs (2002) 122 FCR 29
Sadiqi v Commonwealth (No 2) (2009) 181 FCR 1
SZLPN v Minister for Immigration and Citizenship [2010] FCA 202
Division: Division 2 General Federal Law Number of paragraphs: 82 Date of last submission/s: 9 August 2021 Date of hearing: 9 August 2021 Place: Melbourne Counsel for the Applicant: Mr Albert Solicitors for the Applicant: Victoria Legal Aid Counsel for the Respondent: Mr Hosking Solicitors for the Respondent: Mills Oakley Lawyers ORDERS
MLG 2589 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MARTIN KURD (A PSEUDONYM)
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentIMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
6 MAY 2022
THE COURT ORDERS THAT:
1.The applicant’s application be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be assessed if not agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
This is an application for judicial review of a decision of the Immigration Assessment Authority (‘Authority’) made on 3 November 2016. By its decision, the Authority affirmed a prior decision of a delegate of the Minister for Immigration and Border Protection (‘the Minister’) to refuse the applicant’s application for a Safe Haven Enterprise (subclass 790) visa (‘SHEV’).
The applicant arrived in Australia without his family and at the time of the Authority’s decision was still a minor.
In his application, the applicant raises three grounds of review:
(1)first, that the Authority lacked jurisdiction on the basis that the applicant was not a ‘fast track applicant’ within the meaning of section 5 of the Migration Act 1958 (Cth) (‘the Act’);
(2)second, that the decision made by the Minister in relation to the applicant’s visa application was a dereliction of the Minister’s obligations as the applicant’s legal guardian; and
(3)third, that the Authority’s decision was legally unreasonable as it found inconsistency in statements made by the applicant where no such inconsistency existed.
BACKGROUND
The applicant was born on 2 December 1998 in Iran. He belongs to the Kurdish ethnic group and identifies as a Sunni Muslim.
The applicant fled Iran on 2 December 2012, at which time he had just turned 14 years of age.[1] He arrived and was detained at Christmas Island on 27 December 2012.[2] The applicant was released from detention on 22 July 2013[3] and thereafter has been educated in Australian schools.
[1] Court book at page 44.
[2] Court book at page 44.
[3] Court book at page 48.
At pages 66 to 69 of the court book is a statement made by the applicant dated 16 September 2015 in which the applicant sets out his reasons for leaving Iran and his fears if he were forced to return.
In summary, the applicant claims that he left Iran for the following reasons:
(a)his father and his father’s business partner had imported goods, including petrol, from Israel which was not permitted by Iranian law;
(b)he ceased attending school because he was often beaten and discriminated against because of his religious and ethnic identity. He also says that another reason for ceasing school was because his father was in a bad financial position;
(c)he felt that because he was a Kurd and a Sunni Muslim, he could not prosper in Iran; and
(d)as a result, he asked his parents to arrange for him to leave Iran with his father’s business partner and his parents did so.
In this statement, the applicant further states that he fears harm if he were to return to Iran for the following reasons:
(a)even though he left Iran legally, he fears harm on his return because he is a Kurdish Muslim;
(b)he fears retribution because of the actions of his father and his father’s business partner;
(c)he has no future in Iran, including because his father has since been in jail;
(d)he fears harm because he has lived in a Western country and has adopted Western behaviours and views; and
(e)although not sure if his data has been compromised, the applicant states that he is aware of a data breach and if this data breach includes his details, this could also cause difficulties for him.
On or about 30 June 2015, the then Minister for Immigration and Border Protection exercised his discretion under section 46A(2) of the Act allowing the applicant, as one of a group of 1086 people who had entered Australia as an unlawful maritime arrival, to apply for a SHEV.[4] The documentation at SCR-1 makes it clear that the Minister had previously exercised his discretion under section 46A(2) of the Act to allow the same individuals to apply for a Temporary Protection visa.
[4] Annexure SCR-1 to the affidavit of Sophie Caroline Roberts affirmed and filed on 7 April 2020.
On 6 October 2015, the applicant applied for a SHEV and it was that application which, having been rejected by the delegate of the Minister on 5 August 2016, was ultimately referred, in the usual way, to the Authority. The Authority, in turn, affirmed the delegate’s decision and refused the applicant’s application for a SHEV.
By ground 2, the applicant submits that had the Minister not been derelict in his duty under the Immigration (Guardianship of Children) Act 1946 (Cth) (‘IGOC Act’), the Authority would not have had before it a decision in respect of the applicant’s SHEV, or alternatively if it did, it would have lacked power.
When the matter came on before me on 9 August 2021, the applicant sought to rely upon a further amended application, a copy of which is at Annexure A to these reasons. There was some discussion as to whether ground 2 could be dealt with or whether an extension of time ought to be granted. Ultimately, counsel for the Minister consented to the extension of time and the matter proceeding on the basis of the further amended application.
APPLICANT’S PSEUDONYM
As a preliminary issue, the applicant sought that a human pseudonym be attributed referring to the comments of Kerr J in DSN16v Minister for Immigration and Border Protection [2021] FCA 202 at paragraphs [14] and [15]. This application was not opposed by the first respondent at the hearing before me.
It is submitted for the applicant that the court has the power to make such an order, pursuant to sections 88F and 88G(1)(a) and/or (c) of the Federal Circuit Court of Australia Act 1999 (Cth). The applicant submits that such an order be made to subsist until the applicant either becomes an Australian citizen or departs Australia and that it be accompanied by an order in respect of the transcript.[5]
[5] See, for example, Atkins v Minister for Home Affairs and Anor [2019] FCCA 245. See also SZLPN v Minister for Immigration and Citizenship [2010] FCA 202 at [24].
The parties were invited to provide an agreed pseudonym. On 29 April 2022, the parties indicated their consent to the pseudonym ‘Martin Kurd’. Orders were then made in chambers by consent allocating the applicant with the proposed alternative pseudonym.[6]
GROUNDS OF REVIEW
[6] Orders of Deputy Chief Judge Mercuri dated 29 April 2022.
Ground 1
The issues raised by ground 1 have been dealt with and determined by the Full Court of the Federal Court in BXT17 v Minister for Home Affairs (2021) 283 FCR 248. As conceded by the applicant, I am bound by that decision and on the basis of that decision, ground 1 is not made out. However, at the time of the hearing before me, the applicant advised that an application for special leave to the High Court had been made and on that basis, the applicant formally maintained that ground.
It is therefore not necessary for me to deal with ground 1 any further.
Ground 2
As to ground 2, the applicant submits that in making a decision under section 46A of the Act, the Minister was required to act in a manner consistent with his duty to the applicant under the IGOC Act. Moreover, it is submitted that in making the decision under section 46A in the terms he did, the Minister acted in dereliction of that duty.
Section 46A of the Migration Act 1958 (Cth) relevantly provides:
(1)An application for a visa is not a valid application if it is made by an authorised maritime arrival who:
(a)is in Australia; and
(b)either:
(i)is an unlawful non-citizen; or
(ii)holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed of the purposes of this subparagraph.
(1A) …
(2)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an unauthorised maritime arrival, determine that subsection (1) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in the determination.
(2B) …
(2C) …
(3)The power under subsection (2) … may only be exercised by the Minister personally.
(4)…
(5) …
(6) …
(7)The Minister does not have a duty to consider whether to exercise the power under subsection (2) … in respect of any unauthorised maritime arrival whether the Minister is requested to do so by the unauthorised maritime arrival or by any other person, or in any other circumstances.
At the heart of this ground is the question of whether, in making a limited lifting of the bar under section 46A of the Act in this case, the Minister’s decision has breached his obligations under the IGOC Act and if so, the impact of that breach for the purposes of these judicial review proceedings.
The applicant accepts that the Minister had the power to lift the bar on the applicant applying for a visa and that in doing so, the Minister was required to specify the class of visa which the applicant was permitted to apply for in the determination.
As stated at paragraph [23] of the applicant’s written submissions, however, the applicant takes issue with the limited scope of the bar lift in this instance, in circumstances where at the time the section 46A bar was lifted, the applicant was a minor, being 16 years of age. In those circumstances it is submitted for the applicant that in exercising his discretion under section 46A, the Minister was required to comply with his obligations as the applicant’s legal guardian by virtue of the IGOC Act. In particular, it was submitted that in exercising his powers in relation to the applicant, the Minister was required to give primary consideration to the applicant’s best interests.
It is submitted for the applicant that had the Minister properly exercised his powers in this manner, he would have permitted the applicant to apply for a wider range of visas, which would have allowed the applicant to more easily qualify to remain in Australia and ultimately to seek family reunification. For example, it is submitted in lifting the section 46A bar, that the Minister could have permitted the applicant to apply for a permanent visa removing him from the scope of the Authority’s jurisdiction or a permanent protection visa under s 35A(2) of the Act.
It is further submitted that there is no evidence that in determining the scope of the section 46A bar lift and in making the decision to lift the section 46A bar in relation to the applicant, the Minister gave any consideration, let alone primary consideration, to the applicant’s best interests.
It is common ground that pursuant to section 6 of the IGOC Act, the Minister is the guardian of a non-citizen child and that pursuant to that section, the Minister shall have ‘the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of 18 years or leaves Australia permanently, or until the provisions of this Act cease to apply to and in relation to the child whichever first happens’.
It is common ground that a SHEV did not allow the applicant, if granted, the opportunity to settle permanently in Australia and ultimately, to seek family reunification.
It was submitted for the applicant that:
(a)by operation of the IGOC Act, the Minister was the applicant’s guardian until he turned 18 on 2 December 2016;
(b)as such, the IGOC Act conferred upon the Minister a set of rights and responsibilities akin to those of a parent; and
(c)those rights and responsibilities included the need to consider the best interests of the applicant and to protect the applicant’s long-term interests.
It was submitted that in considering the nature of the Minister’s obligations in his capacity as guardian under the IGOC Act, consideration can be given to the Convention on the Rights of the Child (‘CRC’), although it was conceded that this convention, not having been enacted into Australian law, is not determinative. However, to the extent that it can assist the court, the applicant relies upon Article 7 of the CRC, which provides that a child shall have ‘the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.’ In addition, the applicant refers to and relies upon Articles 8 and 9 of the CRC.
In support of these assertions, the applicant relies upon the decisions of Sadiqi v Commonwealth (No 2) (2009) 181 FCR 1 (‘Sadiqi’) at paragraphs [299] and [302], Odhiambo v Minister for Immigration & Multicultural Affairs (2002) 122 FCR 29 (‘Odhiambo’) at paragraphs [57] to [62] and [86] and Bennett v Minister of Community Welfare [1992] 176 CLR 408 at paragraphs [11] to [13].
These decisions do support the proposition that section 6 of the IGOC Act confers on the Minister a set of rights and responsibilities analogous to those of a parent.[7] Indeed, in Sadiqi at paragraph [296], McKerracher J stated:
As North J observed in X 92 FCR 524 at [45] s 6 is plainly aimed at providing protection for the interests of children who are particularly alone isolated and often in frightening circumstances. … The Full Court (in Odhiambo) confirmed that the basic needs of the child may extend to legal advice and assistance in the appropriate circumstances following Bennett v Minister for Community Welfare …’
[7] Sadiqi v Commonwealth (No 2) (2009) 181 FCR 1, 63 [299].
However, none of these decisions go so far as to suggest that in exercising his obligations as a guardian of an unlawful maritime arrival, as in this case, the Minister is required to exercise a non-compellable discretion such as that contained in section 46A in a manner which fosters and promotes the best interests of the child.
Indeed, in Odhiambo, the court acknowledged that there might be circumstances in which there is a conflict between the Minister’s obligations as a guardian under the IGOC Act on the one hand, and his obligations under the Migration Act 1958 (Cth) on the other, although it was not necessary for the court in that case to determine how any such conflict might ultimately be resolved.
In that case, as stated, the court confirmed that section 6 of the IGOC Act confers on the Minister all the usual incidents of guardianship. It set out an excerpt from the second reading speech of the Minister who introduced the IGOC Bill into parliament in 1946 and then went on to say at paragraph [87]:
Although it is clear that the legislation was conceived as a way of ensuring adequate oversight of the welfare of children who had been, or would be, brought to Australia under voluntary migration schemes sponsored by social welfare organisations and church bodies, it was drafted in wide terms. As counsel for the Minister acknowledged, the enacted legislation extends also to children who come to Australia as asylum-seekers.
Relevantly the court then went on to say:
90. In the case of children who come to Australia with government approval, under voluntary migration schemes, there would appear to be no conflict between the role of the Minister as guardian and the Minister’s role in administering the Migration Act. However, where children come to Australia as asylum-seekers there may be such a conflict. For example, the Minister may have a policy of detaining all asylum-seekers (or all persons falling within a particular class of asylum-seekers) pending final determination of their claims to be recognised as refugees. Yet a person acting independently of the Minister might see grounds, in the particular case, for the grant of a bridging visa permitting release of the child from detention during that period.
91.Similarly, as the person administering the Migration Act, the Minister has an interest in resisting challenges to decisions of delegates and decisions of the Tribunal that uphold delegates’ decisions. That interest is directly opposed to the interests of an asylum-seeker in setting aside a decision unfavourable to him or her and obtaining reconsideration of the application for a protection visa.
92.Although it is clear from the wording of the GOC Act, and accepted by the Minister, that the Minister is the guardian of unaccompanied asylum-seeker children, the potential for conflict of roles must, of course, exist…
As stated, the court ultimately did not need to address this conflict in Odhiambo.
If one accepts, as one must on the basis of the authorities referred to above, that in the capacity as guardian under the IGOC Act, the Minister has the rights and responsibilities of a parent, the court can accept that in exercising those rights and responsibilities the Minister must have the best interests of the child at the forefront of their mind.
In the case of an unaccompanied minor, for example, this obligation may include ensuring that the child has adequate accommodation, access to health care, education and the like. Moreover, in the case of an unaccompanied minor who may be seeking to challenge a delegate’s decision, this obligation may include ensuring that the child has access to appropriate support and possibly legal representation to ensure that the child’s case can be advanced before the relevant court or decision maker.[8]
[8] Odhiambo v Minister for Immigration & Multicultural Affairs (2002) 122 FCR 29, 41-2 [58]-[60].
However, in determining whether to exercise the discretion conferred by section 46A, the Minister is acting in his capacity as the Minister responsible for the administration of migration matters pursuant to the Migration Act1958 (Cth). He was not acting in his capacity as the applicant’s guardian. Whilst the individual is the same, the powers and responsibilities are not. The applicant’s submission in this case, with respect, conflates these two roles.
The effect of the IGOC Act is that the Minister stands in the shoes of the parent in relation to the child asylum seeker and in that capacity, in making decisions for the child, the Minister must make decisions which are in the child’s best interest, as any parent would. It is not the case that, having been appointed the legal guardian of a child by virtue of the IGOC Act, all decisions made in exercising any of his or her powers under the Migration Act1958 (Cth) which impact the child asylum seeker, the Minister must put the child’s best interests at the forefront of his or her considerations. Those decisions are decisions made by the Minister in their capacity as Minister responsible for the administration of the Migration Act1958 (Cth), not in their capacity as guardian.
This conclusion is further reinforced by section 8(2) of the IGOC Act which relevantly provides:
(2) Nothing in this Act:
(a) affects the operation of the migration law; or
(b) …
Section 8(3) then goes on to relevantly say:
Without limiting subsection (2), nothing in this Act affects the performance or exercise, or the performance or exercise, of any function, duty or power relating to:
(a)the removal of a non-citizen child from Australia under section 198 or 199 of the Migration Act 1958; or
(b)the taking of a non-citizen child from Australia to a regional processing country under section 198AD of that Act; or
(c) the deportation of a non-citizen child under section 200 of that Act; or
(d)the taking of a non-citizen child to a place outside Australia under paragraph 245F(9)(b) of that Act, or …
Relevantly, a ‘migration law’ is defined as the Migration Act1958 (Cth) and regulations or other instruments made under that Act, or those regulations. It is clear from section 8, and in particular sub-section 8(2) when read in conjunction with sub-section 8(3), that the IGOC Act contemplates the very conflict identified by the court in Odhiambo and has addressed that conflict.
For these reasons, and contrary to the submission made on behalf of the applicant, the Minister was entitled to make the decision he made about the scope of the section 46A bar lift in the manner he did. In making that decision, he was not required to put the best interests of the applicant ahead of any other consideration to which he had regard (and as set out in Annexure SCR-1).
For similar reasons, I do not accept the applicant’s submission that the Minister is seeking to benefit from any breach of his duties in the manner alleged by the applicant and that the Authority’s decision is infected by the Minister’s dereliction of his duty under the IGOC Act. For the reasons set out above, I am not satisfied that the Minister’s decision in relation to the scope of the bar lift was a breach of any statutory obligation. Consequently, the applicant’s argument that the Authority’s decision was deficient as a consequence must also fail.
For each of these reasons, I find that there is no proper basis for a declaration in the terms sought by the applicant and ground 2 is therefore not made out.
For completeness, I accept the applicant’s submission that there is no evidence before the court that in exercising the section 46A discretion, the Minister gave any consideration to the IGOC Act. For the reasons set out above, the Minister, in exercising a non-compellable discretion conferred by the Migration Act1958 (Cth), was not required to do so, as in doing so, he was not acting in his capacity as the applicant’s guardian.
Ground 3
By ground 3, the applicant claims that the Authority’s decision was legally unreasonable in that it made adverse credibility findings on the basis of inconsistencies in evidence where no such inconsistency existed.
It was submitted that a central claim by the applicant was that he was at risk of harm as a result of his relationship with his father and his father’s partner, Arasto, and any political opinion imputed to him because of their importation of goods from Israel to Iran. It is submitted that this claim relied heavily on the applicant’s father having been imprisoned for his role in the illegal importation.
It is submitted that the Authority erred by finding that the applicant had been inconsistent in his evidence in relation to this issue and moreover, that this inconsistency led to an adverse finding which was determinative of his claim to fear harm due to his father’s criminal record and the fact that he had escaped Iran illegally whilst on a temporary release from prison.
In determining this ground, it is necessary to consider:
(a)the evidence that was given by the applicant in this regard;
(b)the findings made by the Authority; and
(c)whether those findings were legally unreasonable as submitted for the applicant.
Evidence given by the applicant
In the applicant’s Irregular Maritime Arrival Entry Interview on 1 March 2013, the applicant relevantly said:
My father and (his partner) who I travelled here with were business partners importing mining equipment and vehicle parts, and at the beginning of this year, in Spring, when they came across a problem with customs at the border. Customs held onto the goods that they had the intention of bringing into the country and would not release the goods unless Arasto and my father paid a lot of money and they had to sell a lot of their belongings such as their cars to pay an Iraqi businessman.[9]
[9] Court book at page 11.
In his statement made on 16 September 2015, the applicant then stated:
16.After I left Iran my father was put in jail for more than one year. He is now out on bail but he still needs to go back to court to face charges. This is in relation to the importation of goods made in Israel, but I do not know the full details of this as he has not spoken to me about it.[10]
[10] Court book at page 67.
At paragraphs [18] to [19] of his statement, the applicant went on to say:
18.I fear that I may be harmed by the authorities because I left the country with Arasto. Maybe they will think I was involved in the crime that he and my father committed and this is why I had to flee…
19.I also fear that now that my father has been in jail that things are going to be even more difficult for me. I will face more problems in my school and work life. [11]
[11] Court book at page 68.
Further at paragraph [21], the applicant said ‘I do not know what is happening with my father and whether he will be put in jail for a long time’.[12]
[12] Court book at page 68.
The issue of the applicant’s father’s arrest was also considered in the delegate’s decision which was communicated to the applicant under cover of a letter dated 5 August 2016. Relevantly, it appears from that decision that the applicant was asked about his father’s arrest during the Protection Visa interview. The delegate’s decision record relevantly states:[13]
24.… During his TPV interview I asked the applicant about his father’s arrest. He stated that he did not know any details, and was only informed by his family that his father ‘got caught and he’s in jail’. The applicant was not able to provide any further details regarding his father’s imprisonment or subsequent release.
[13] Court book at page 135.
The delegate further dealt with this issue at paragraphs [26] and [27] of their decision record and ultimately at concluded with the following:
27.I do take into account the applicant’s young age (16) when he departed Iran. The applicant stated during his interview that this incident was not the main reason why he left Iran. Considering these factors collectively, I do not accept that his father was detained or charged for importing products that were made in Israel as claimed. As I do not accept this occurred, I am unable to accept his claim that the applicant would face further problems in Iran due to his father’s arrest.[14]
[14] Court book at page 136.
By letter dated 9 August 2016, the applicant was advised of the referral of his application to the Authority.
Correspondence was sent by the applicant’s representative to the Authority dated 5 September 2016 in which the following submission was made:
Given that (the applicant) was only 14 years old when his father was arrested and was still a child at the time of the protection interview, it is to be expected that his claims are reliant on information that has been provided to him by his mother. We submit that it is plausible that his mother may seek to shield her son from seeing his father in difficult conditions and may also shield him from a full knowledge of the reasons behind his father’s detention as a way of protecting him from further psychological harm. We submit therefore that (the applicant’s) lack of knowledge as to the surrounding circumstances of his father’s arrest lends weight to the genuineness of his claims. It is certainly clear that he has not sought to embellish his claims or provide self-serving information.[15]
[15] Court book at page 168.
In addition, the applicant’s representative further stated at page 171 of the court book, under the heading ‘Complementary protection’:
If you do not accept that (the applicant’s) father is detained for reasons relating to importing products that were made in Israel, we submit that you should still accept that his father is in fact detained. As (the applicant’s) father is still detained and (the applicant will be returning to Iran as a young vulnerable Kurdish male without adult male protection, we submit he would be returning to the same situation of risk and that therefore there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia he will face a real risk of cruel, inhuman treatment as defined in s 5(1) of the Act.
The applicant provided a further statement dated 20 September 2016 in which he provided the following further information and statements:
2.My father had been in jail in Iran for a long time, as previously disclosed in my Protection Visa Application.
3.In conjunction with the Eid festival in Iran, my father was granted a pardon and was allowed to leave prison. …I think this was under bail conditions and he was expected to return to prison after Eid.
4.… after my father was released from prison, he illegally left Iran to join my mother and sister in Turkey. My mother told me my dad started his journey to Turkey on Sunday 11 September 2016 … and he arrived on Tuesday 13 September 2016.
5. …
6.… I am afraid that I could be harmed because of what my father has done. … I am afraid that I will be punished by the Iranian authorities because my father broke the law and left Iran illegally.[16]
[16] Court book at page 177.
Annexed to the applicant’s statement were two flight itinerary receipts for the applicant’s mother and sister and three documents evidencing that the applicant’s parents and sister had registered with the UNHCR seeking protection in Turkey.
It is submitted for the applicant that his statement of 20 September 2016 could be read consistently with the earlier statements made on his behalf in relation to the applicant father’s imprisonment.
The applicant, in his submissions, takes issue with the manner in which the Authority resolved the applicant’s evidence about his father’s imprisonment. It was submitted that the evidence given by the applicant over the course of a three year period essentially was that:
(a)after the applicant came to Australia, his father was imprisoned for over a year and then released on bail;
(b)by September 2015, the applicant was unclear as to whether his father would return to jail as it was his understanding that his father had to return to court to face charges;
(c)by 5 September 2016, the father had been sentenced to a period of imprisonment; and
(d)at Eid 2016, he was temporarily released and he took the opportunity to leave the country, albeit illegally, and seek asylum in Turkey.
The applicant concedes that there was no express evidence about the father’s sentencing and imprisonment in 2016, however, it is submitted that this was implicit in the applicant’s written submissions filed on his behalf on 5 September 2016.
It is further submitted that in failing to consider whether to exercise its discretion under section 473DC of the Act to obtain new information, the Authority denied the applicant an opportunity to clarify this issue.
I am not satisfied that the applicant has established that the Authority fell into jurisdictional error by not seeking further information from the applicant. In circumstances where the applicant was represented, where the applicant’s representative provided the Authority with two submissions and a further statement from the applicant in September 2016 and where no request was made for the Authority to obtain any further information, it cannot be said that the Authority’s decision not to request further information from the applicant on this issue amounts to a jurisdictional error.
The applicant gave evidence about his father’s alleged imprisonment. It was within his power, through his representatives, to provide any evidence which would support that claim. In those circumstances, the applicant has not established that the Authority’s failure to exercise its discretion under section 473DC is legally unreasonable.
The applicant further submits that in considering any apparent inconsistency between the applicant’s statements, or statements made by his legal representatives, the court must be cognisant of the applicant’s age at the time, and the fact that on his own evidence, his understanding of his father’s situation was garnered from information provided by his mother. In this context, it is submitted that to give a relatively minor ‘lacuna’ in the evidence such significant weight was not reasonable.
Findings made by the Authority
In its reasons regarding the applicant’s claims arising from his father’s imprisonment, the Authority’s reasons at paragraphs [9] to [14] of its decision record are particularly relevant.[17]
[17] Court book at pages 201 to 203.
In particular, at paragraph [9], the Authority accepts that the applicant’s father and his partner had imported goods from Israel, that they were confiscated at the border and that this had a significant impact on the applicant’s father and his partner.
However, at paragraph [10] of the decision record, the Authority went on to say that notwithstanding these findings, it did ‘not accept that the applicant’s father was arrested, or that he subsequently left the country whilst released on bail’. The Authority went on to say, also at paragraph [10], that it found it ‘implausible that if the applicant’s father and Arasto were under suspicion over the importation of goods from Israel in early 2012, the authorities would harass, threaten and intimidate them but yet wait until sometime in 2013 to make an arrest’.
In addition to this principal finding, the Authority then went on to say that it also found that the applicant’s claims about the father’s imprisonment were contradictory and therefore undermine the applicant’s credibility on this issue. The Authority referred to the fact that the applicant had stated in his SHEV application in 2015 that his father had already spent some time in jail but that at the time of his application had been released on bail and was expected to have to face court again. Moreover, the Authority noted at paragraph [11] that at the SHEV interview, the applicant confirmed that at that time, his father was out of jail and living in Tehran.
In the context of this information, the Authority found that the applicant’s claim that the father had been in prison just prior to Eid in 2016 when he received permission to leave prison for a period of time was not consistent with his earlier evidence. The absence of any evidence from the applicant explaining how and when the father was imprisoned was also noted by the Authority as a reason for concluding that there was an inconsistency.
Ultimately, and notwithstanding giving consideration to the applicant’s young age, the Authority concluded that the inconsistency about the father’s incarceration was ‘so significant as to undermine the credibility of the claim that he was ever imprisoned at all’.[18]The Authority therefore concluded that although it accepted that the applicant’s father had lost money as a result of the importation issue, it did not accept that the applicant’s father had ever been imprisoned as a result of that issue.
[18] IAA decision record at paragraph [12] at court book page 202.
The first respondent concedes that an adverse credibility finding can give rise to a jurisdictional error.[19] However, ‘… considerable caution must … be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error … That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJJ … made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned’.[20]
[19] CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496, 517-8 [60].
[20] CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496, 517-8 [60] quoting Wigney J in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 2010.
Whether the Authority’s findings were legally unreasonable
It is well accepted that a decision maker must ‘assess the significance of (any) inconsistency and the weight to be given to it’ … simply attaching the label ‘inconsistency’ and moving immediately from the label to an adverse finding of credibility or reliability, may not be a rational or legally reasonable approach’.[21]
[21] ASB17 v Minister for Home Affairs [2019] 268 FCR 271, 283 [44].
As noted at paragraph [45] of the Full Court’s decision in ASB17 v Minister for Home Affairs [2019] 268 FCR 271, complete consistency itself can suggest a lack of credibility. Further, care must be exercised in weighing and assessing evidence given by an applicant who has been ‘required to give more than one account or narrative of events, often separated by considerable periods of time and circumstances, care needs to be taken in weighing and assessing the probative value of various accounts’.
In this case, not only was the applicant a minor, but he was also giving his evidence through an interpreter, and there is no evidence as to the interpreters’ accreditation level.
A fair reading of the Authority’s reasons for decision indicate that it understood the particular vulnerabilities of the applicant, in particular his age, and had regard to the submissions made on the applicant’s behalf in relation to the making of credibility findings.
However, in finding that the applicant’s father was not imprisoned as claimed, the Authority did not act unreasonably or irrationally. In coming to this view, in addition to the lack of consistency in the applicant’s own evidence about his father’s imprisonment, the Authority had regard to:
·the implausibility that the authorities would allow the applicant’s father to remain in the community for over 12 months without charge; and
·the lack of any evidence from the applicant which could have addressed this issue of his father’s imprisonment definitively in circumstances where this was clearly a central aspect of his claim and one in respect of which he was on notice after having received the delegate’s decision which also did not accept that the applicant’s father had been imprisoned.
I therefore find that the Authority’s findings in this regard were reasonably open to it. Consequently, ground 3 is not made out.
CONCLUSION
For each of these reasons, I therefore dismiss the applicant’s application and order that the applicant pay the first responde nt’s costs in a sum to be fixed if not agreed.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 6 May 2022
Annexure A
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