Navaser v Minister for Immigration and Multicultural Affairs

[2002] FCA 505

FEDERAL COURT OF AUSTRALIA

Navaser v Minister for Immigration & Multicultural Affairs [2002] FCA 505

MIGRATION – review of decision to refuse an application for a protection visa – whether s 424A required the tribunal to afford the applicant an opportunity to deal with information arising from information supplied on his behalf – whether tribunal obligated to give to the applicant particulars of alleged inconsistencies arising from documents supplied on behalf of applicant forming part of the reason for affirming the decision adverse to his application – whether a failure to afford that opportunity was a breach of the procedures required by the Act to be observed

Migration Act 1958 (Cth) ss 36(2), 424(1), 424A, 424A(3), 424(3)(a), 424A(3)(b), 476, 476(1), 476(2)(a)

Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919 (Ryan, Merkel and Conti JJ, 24 July 2001, unreported) referred to

SADIQ SAMIKHALEF NAVASER v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
W429 of 2001

RD NICHOLSON J
29 APRIL 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRLIA DISTRICT REGISTRY	W429 of 2001

BETWEEN:	SADIQ SAMIKHALEF NAVASER APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	29 APRIL 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRLIA DISTRICT REGISTRY	W429 of 2001

BETWEEN:	SADIQ SAMIKHALEF NAVASER APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	RD NICHOLSON J
DATE:	29 APRIL 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) given on 22 August 2001. The decision affirmed a decision of the delegate of the respondent not to grant a protection (class XA) visa to the applicant. The application is made pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”), the application having been filed on 11 September 2001.

2. The Tribunal reasons describe the applicant as a person who claimed to be a citizen of Iraq, having arrived in Australia on 2 November 2000.  The refusal by the delegate occurred on 27 June 2001. 

   Relevant legislative provisions

3. Under s 36(2) of the Act a non- citizen in Australia is eligible for a protection visa if that person is someone: “… to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.” The Refugees Convention is the Convention Relating to the Status of Refugees 1951 and the Refugees Protocol is the Protocol Relating to the Status of Refugees 1967. The expression “Convention” will be used to mean the Convention as amended by the Protocol. The same criterion appears in Sch 2 of the Migration Regulations items 785 and 866.

4. Article 1a(2) of the Convention defines a “refugee” to be any person who:

   “…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”.

   The reasons specified in Article 1a(2) are known as Convention reasons.  The existence of such reasons threatening the life or freedom of a refugee in a territory to which it is proposed he or she be expelled or returned gives rise to a protection obligation prohibiting such expulsion or return as a consequence of Article 33 of the Convention.

   Applicant’s circumstances

5. In his first interview the applicant claimed to have Iranian citizenship having been born in Khozestan, Iran.  He gave details of his education, work and military service in Iran.  He said that he only spoke Persian.  He said that his parents and eight siblings resided in Iran, he being unmarried.  Page 2 of the record of the arrival’s interview with the applicant shows that at least two different forms of handwriting are used on the page completing personal particulars in relation to the applicant, including his citizenship and date of birth.

6. He claimed that he left Iran because his life was in danger.  The reason he gave for that was that three to four years ago persons who had problems with the Iranian Government left a bag with him.  After escaping to Iraq that person returned to collect the bag.  Some days later the applicant’s house was raided by members of the security forces and he was questioned.  Three days later when one of his relatives left the home after a visit carrying a similar briefcase, he was shot at.  He said he was under pressure from the Government and civilians and arranged to leave Iraq. 

7. Approximately seven months after providing that information the applicant lodged his application for a protection visa accompanied by a statutory declaration.  In that he stated that he was a citizen of Iraq and a Shi’ite Muslim.  He said he was not a citizen of any other country and did not have a right of temporary or permanent residence in any other country.  He claimed to have been forced to leave Iraq in 1980 when he was around three or four years old.  He said his father had told him that the family had been forced to leave Iraq because they were told by the Iraqi regime they were Shi’ite Muslims with no ancestors in Iraq and they had to return to their own country.  However, Iranians did not recognise them as citizens. 

8. He further claimed that all his family including himself had been issued with a green card.  He described its characteristics and use as follows:

   “7. All our family including myself were issued with a green card.  The green card is a green colour with black writing.  There is a photo in the top left hand corner with a seal over the photo.  The official signature is in the bottom left hand corner.  There are two serial numbers on the bottom left and right sides.  The personal details are on the front of the card.  The symbol of Iran is in the top middle.  There are two diagonal lines across the card from the top right corner to the bottom right corner, but do not extend all the way to each corner.  On the back is the date of renewal.  I was issued one when I was a young child and it was renewed when I was a teenager.

   8.The green card did not allow me to travel or live outside the designated area of Khuzestan.  If anyone wanted to go outside the province, one had to obtain permission from the government office.  The green card was used as an ID card.  In the four years I was studying in the mosque the basiji and other government organs often checked my green card because I went home at night.  It was normal for the government to check identity cards for all persons.”

   The applicant also stated:

   “As an Iraqi I did not have any rights in Iran.  I could not live a normal life.  I was afraid that I could be deported to Iraq at any time.   Whenever I had contact with Government like basiji and national police they said I should return to Iraq.  I decided to leave Iran.”

   Additionally the applicant stated the story he had given in his initial interview about looking after a bag for a friend was not true. 

9. The applicant attended a hearing of the Tribunal at which he gave evidence and answered questions from the Tribunal. 

10. Following the hearing the Tribunal occasioned a letter to be sent to the applicant putting two matters to him that would be reasons for deciding he was not entitled to a protection visa.  These were as follows:

    “a)In your first interview in Australia, held on 14 November 2000, you told the interviewer that you were born in Khozestan, Iran.  When you were asked “What is your citizenship”, you responded “Iranian”.  When asked your “ethnic group”, you responded “Persian”.  You also stated that you had performed your military service in Iran, gave details of three barracks where you did this, said that you had a military service card and said that a friend with whom you had done your military service had helped you leave Iran.  You also said that you gave your passport to that person in exchange for another Iranian passport.  You now claim that you were born in Iraq, that you fear persecution in Iraq and that you have never been granted Iranian citizenship.

    b)You claimed in the first interview that you left Iran for a particular reason relating to a bag left at your home.  In your written submission to the Department you stated that this claim was untrue.  In your Tribunal hearing, you said the only reason you left Iran was because of your fear of being forced to return to Iraq.”

11. In a letter from the solicitors for the applicant to the Tribunal dated 14 August 2001 reference was made to the fact that an initial interview can be extremely stressful on applicants.  Further it was stated that the applicant had been then scared that if his real place of birth and background was revealed he would be sent back to Iran.  It said the applicant “has acknowledged all areas in which he may not have told the complete truth about in the initial interview” having identified those areas in his statement and at the hearing. 

12. In relation to the bag incident, the solicitors stated that the only untrue element of that was his claim at the initial interview that it was the main reason for him leaving Iran. 

13. In support of the fact that the applicant was an Iraqi citizen the solicitors attached additional information, being translations of the identity or green card of the applicant and his father. 

    Tribunal’s findings and reasons

14. The Tribunal made the following findings:

    (i)The applicant did not claim to fear being persecuted in Iran for any reason other than his Iraqi nationality, which he claimed led to a fear that he would be deported to Iraq.

    (ii)The Tribunal was unable to accept that the photocopy identity card purporting to be that of the applicant is a copy of a genuine card issued to him by the Iranian authorities.  The Tribunal was not satisfied that either photocopy identity card was that of a green card issued to the applicant or his father.

    (iii)The Tribunal accepted that the applicant may have refused to sign a statutory declaration confirming his nationality when he first arrived in Australia, but it considered implausible his assertion that he refused to do this because he did not want to confirm that he was a citizen of Iran.  The Tribunal was further not satisfied that the applicant’s refusal to sign was because he was an Iraqi national.

    (iv)The Tribunal was satisfied, and found, that the applicant is a national of Iran.

    (v)The Tribunal was not prepared to accept the applicant’s more recent assertion (in the post-hearing submission by the applicant’s advisers dated 14 August 2001) that the applicant had any problems with the Iranian authorities as a result of minding a bag for some friends.

    (vi)The Tribunal also did not accept the applicant’s claim that he was warned he would be deported to Iraq as a result of suspicions about a bag or for any other reason.

15. The applicant’s case was founded on his alleged fear of being persecuted in Iran because of his Iraqi nationality. The Tribunal did not accept that he was an Iraqi national. Consequently, it followed that it concluded he did not have a well-founded fear of Convention related persecution in Iran. Therefore, he was not a person to whom Australia owed protection obligations under the Convention and so he did not satisfy the criterion set out in s 36(2) of the Act to qualify for a protection visa.

    Grounds of review

16. The applicant was unrepresented and is unskilled in the law. Understandably he was not able to articulate grounds identifying errors of law which might fall within s 476(1) of the Act, the source of jurisdiction for this Court in relation to this application. His only stated ground was to reassert that he was an Iraqi.

17. Other matters raised by the applicant at the hearing are discussed in what follows.

    Reasoning

    Identity card

18. In his oral submission the applicant said that documentary evidence relating to the green card had been forwarded to the Tribunal following the hearing.  He asked why the Tribunal had not rescheduled a further hearing and given him the opportunity to make submissions in relation to those documents. 

19. In its reasons the Tribunal listed five matters which led to its conclusion not to accept the photocopy card as genuine.  They were:

    ·    As a copy it was difficult to establish whether it was what it claimed to be.

    ·    The document showed the date of issue as “20/8/2000” whereas in his evidence he had said that his green card was issued when he was a child and renewed when he was a teenager (he being aged 25 years of age when giving that evidence) and no mention had been made in his evidence of a new card having been issued. 

    ·    He claimed to have left Iran on 6 September 2000 so that the card would have issued just seventeen days before he left the country and it is not explained why he would have applied for a card at such a time.

    ·    There was evidence from DFAT (2001) that such cards were only being issued in exceptional circumstances to Iraqis in Iran in the year 2000.

    ·    There was an inconsistency between the content of the card granting identity for one year from the date of issue (that is valid until around 20 August 2001) and his claims he had repeated that he had left Iran because he had received repeated ultimatums to leave. 

    I accept the submission for the respondent that this conclusion of the Tribunal member was a strong conclusion and not one in relation to which she exhibited any real doubt. 

20. The obligation of the Tribunal to give information to an applicant is addressed in s 424A of the Act which relevantly reads:

    “424A

    (1)Subject to subsection (3), the Tribunal must:

    (a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

    (c)invite the applicant to comment on it.

    (2)…

    (3)This section does not apply to information:

    (a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

    (b)that the applicant gave for the purpose of the application; or

    (c)that is non-disclosable information.”

    Doubtless it was this section which occasioned the Tribunal to write its letter of 10 August 2001 which in turn led to the response from the applicant’s solicitors of 14 August 2001. The obligation would arise in relation to the identity card if the evidence relating to it was such “that the Tribunal considers [it] would be the reason, or part of the reason, for affirming the decision that is under review” and the obligation was not precluded by s 424A(3).

21. The documentary evidence concerning the identity card arose from and was supplied by the solicitors in their letter of 14 August 2001 on the applicant’s behalf. It was, therefore, information which came on behalf of the applicant and of which he therefore had knowledge. The position was otherwise in relation to the five matters relied upon by the Tribunal to reach a finding (ii). Those issues were not known to the advisers or the applicant at the time the documents were made available so that the significance of adverse inferences sought to be drawn by the Tribunal and relied upon it as the reason or part of the reason for affirming the decision under review were not the subject of submission on behalf of the applicant. There is support for the view that under s 424A, an obligation would arise on the respondent to give the applicant the opportunity to comment on those five matters unless the application of the section were excluded by s 424A(3): cf Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919 (Ryan, Merkel and Conti JJ, 24 July 2001, unreported) per Merkel J at [39], [40] and [53]. For reasons which follow, it is unnecessary to examine subsequent reference to those paragraphs in later decisions.

22. It is apparent that the information relating to the identity card was “about the applicant” and not “just about a class of persons of which the applicant …is a member” so that the application of the section is not precluded by s 424A(3)(a). However, the position is otherwise in relation to s 424A(3)(b). The information relating to the identity card was information “that the applicant gave for the purpose of the application”. It was forwarded by the applicant’s advisers in response to a letter from the Tribunal after the hearing occasioned by the making of the application. Section 424(1) did not therefore apply to require the Tribunal to refer the inferences it drew from the information or inconsistencies arising to the applicant. Even if it could be argued that s 424A does not preclude the common law rules of natural justice, no ground of review under s 476(1) of the Act could arise in relation to a breach of the common law in that respect because it is also precluded by Statute: s 476(2)(a). The absence of any reference back by the Tribunal to the applicant on the matters arising from the identity card information cannot therefore assist him to obtain an order of review.

    Nature of his persecution

23. The applicant also contended that he had told the Tribunal about his problem with authorities in Iran and Iranian intelligence and that there were difficulties in obtaining employment.  Consequently, he disagreed with the Tribunal’s reasoning which he understood to mean that he did not have any problems or difficulties with Iranian authority other than in relation to “the bag incident”. 

24. However, the applicant’s claim of such persecution was grounded fundamentally in his claim that he was an Iraqi citizen and so attracted such persecution.  If the Tribunal was entitled to its conclusion that he was not an Iraqi citizen, nothing new would arise from these matters.

    Missing piece of paper

25. The applicant said he had answered questions upon arrival and explained everything about his citizenship.  However, he claimed it had not been located by his lawyer or seen by the Tribunal.  Presumably the applicant seeks to argue this evidence could have shown he did not change his account in relation to citizenship.  That was not what his representatives stated in their letter of 14 August 2001.  The Tribunal was entitled to proceed on the evidence before it. 

    Handwriting variations

26. The applicant inquired why there were handwriting variations on page 2 of his arrival interview and whether someone had changed it.  There was no issue before the Tribunal on this and no ground of review is activated by it.

    Conclusion

27. For the above reasons I consider that the application must be dismissed.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Associate:

Dated:             29 April 2002

The applicant represented himself
Counsel for the Respondent:	Mr PR Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	25 March 2002
Date of Judgment:	29 April 2002