SZSIA v Minister for Immigration

[2013] FCCA 720

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSIA v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 720

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal misapplied s.98 of the Migration Act 1958, failed to undertake particular enquiries and denied the applicant a fair hearing and by reason that the primary decision-maker denied the applicant natural justice.

Legislation:

Migration Act 1958, ss.36, 98, 424A, 427, 474

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123
Abebe v Commonwealth (1999) 197 CLR 510
Twist v Randwick Municipal Council (1976) 136 CLR 106

Applicant: SZSIA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2819 of 2012

Judgment of: Judge Cameron

Hearing date: 26 June 2013

Date of Last Submission: 26 June 2013

Delivered at: Sydney

Delivered on: 10 July 2013

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr P. Knowles

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2819 of 2012

SZSIA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Iraq who arrived in Australia on 12 April 2012.  On 3 May 2012 he lodged an application for a protection visa with the Department of Immigration and Citizenship, alleging that he feared persecution in Iraq because he had worked for the coalition forces in Iraq and because his father had been a battalion leader in Saddam Hussein’s army.  On 13 June 2012 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa were set out on pages 4-52 of the Tribunal’s decision.  Relevant factual allegations are summarised below.

2. On 13 February 2012 the applicant applied at the Australian embassy in Jordan for a temporary business visa to travel to Australia.  Accompanying his application was a business card stating that he was the general manager of a company in Zakho, a driver’s licence issued in Duhok which gave his residence as Duhok, a membership card of the Duhok Chamber of Commerce & Industry and a travel itinerary showing that he would depart Iraq from Erbil.  Zakho, Duhok and Erbil are cities in the Kurdistan region of Iraq.  The applicant’s application also included documents, found to be genuine, issued by the Iraqi Prime Minister’s office indicating that the applicant was a member of an organising committee travelling to Australia to manage the affairs of Iraqi pilgrims travelling to Mecca.

3. The applicant arrived at Sydney airport on 12 April 2012.  When interviewed by a departmental officer, the applicant claimed that he was a businessman whose sole purpose for travelling to Australia was to look for goods to export to Iraq.  When it was put to him that his visa application stated that he was in Australia to facilitate Iraqi pilgrims travelling to Mecca, the applicant said that he was also in Australia for that purpose but had not mentioned it because he had not understood the questions asked of him and was hungry and tired.  The applicant claimed that his real birth year was 1980 and that his parents had claimed that he was born in 1986 so that he could avoid military service.  Following his airport interview with the departmental officer the applicant’s temporary business visa was cancelled on the basis that he had provided information contradictory of that provided in his visa application.  The applicant was refused immigration clearance and was then placed in immigration detention.

Protection visa application

1. The applicant made the following claims in his protection visa application and in a statement attached to that application:

   a)he is a Kurdish Iraqi businessman from Mosul.  He had lived at the same address in Mosul from April 2002 until April 2012;

   b)he owned a truck and had used it to transport goods from one American base to another.  As his work was dangerous, because his home town was the centre of armed resistance by radical Sunni insurgents, he was permitted to carry weapons;

   c)he stopped working for the coalition forces at the end of 2005 and began to trade in foodstuffs to support his family;

   d)in May 2010 he received a telephone call from someone who said that they were from the Islamic State of Iraq, a terrorist group.  The person said that he would be killed for working for the occupation forces.  He continued his business but became more cautious;

   e)on 10 January 2012 he found a piece of paper slipped under his front door.  The paper was addressed to him and said that he would be killing for having worked with the American forces;

   f)he knew that Al Qaeda was very active in home town and throughout Iraq so he decided to leave Iraq for his own safety; and

   g)he left his family with his brother in a nearby village.  He found out on 16 Aril 2012 that the Islamic State of Iraq knew that he had left Iraq.  They had contacted his brother and threatened to kill his (the applicant’s) family so his brother took them into hiding.  He did not know where his wife and children were.

2. The applicant provided the following documents with his protection visa application:

   a)a copy of an identification card issued to him by the coalition forces on 1 May 2003 authorising him to carry a pistol and an AK-47 for his personal protection; and

   b)a letter addressed to the applicant purportedly from the Army of the Murabiteens.  The letter stated that the applicant was an apostate for having worked as a guard with the American forces and that he would be killed for it.

3. The applicant also provided a submission from his migration agent dated 30 April 2012 which said that the applicant had a well-founded fear of persecution on the grounds of:

   a)religion because he was regarded by the Al Qaeda-linked Islamic State of Iraq to be an apostate and traitor and was therefore condemned to death by Islamic law;

   b)membership of a particular social group because he was identified as a member of the particular social group of “collaborators with the ‘US coalition invaders of Iraq’ ” by an Al Qaeda-linked group and had been warned that he would be killed; and

   c)political opinion because he was imputed to be hostile to the Sunni insurgency’s goal of changing Iraq into an Islamic state.

4. The applicant’s migration agent submitted that the applicant faced a high risk of persecution because of his religious status, his position as a known collaborator and because he had been in Australia, a coalition country.  He submitted that the Iraqi government could not protect the applicant and that he could not relocate within Iraq because Al Qaeda’s influence stretched all over that country.

Department

1. The applicant attended a departmental interview on 22 May 2012 where he made the following claims:

   a)he had needed to work at an early age and, because he had a big build, was able to work for the coalition forces when he was under seventeen years of age;

   b)he had travelled to Turkey more than twenty times;

   c)he had not been threatened earlier than 2010 because the insurgents had been concerned about carrying out military campaigns against the Americans.  When the Americans withdrew, they started targeting those who had associated with the Americans;

   d)after receiving the threatening letter in January 2012, he took it to the police but they told him that the Islamic State of Iraq was also targeting them and that they could not do anything for him.  A scanned copy of the letter was on his laptop when he arrived in Australia;

   e)he kept himself from being monitored and extorted by Al Qaeda by keeping himself from being seen when conducting his business;

   f)he was a Sunni Muslim by name but did not practise the religion.  The Islamic State of Iraq considered him a non-believer because he had collaborated with the Americans.  He would be killed for this;

   g)his father had worked as the head of a battalion in Saddam Hussein’s army.  Because of this, when the Kurdish forces entered his home town in 2004, their home was appropriated and turned into a military base.  He moved to Mosul.  He could not go to Kurdistan because his father was wanted by the Kurds and Kurdistan was not a democratic country;

   h)the airport in Iraq was under the control of Sunni and Shi’a factions who, on his return, would identify him as being from Mosul and as having escaped to Australia; and

   i)he had planned to enter Australia legally and seek a lawyer to assist him in applying for a protection visa.  After his temporary business visa was cancelled and he was detained, he had no choice but to tell his story.

2. The applicant provided the original of his coalition forces identification card.  It was examined by the department’s document examiner who was unable to determine whether it had been legitimately manufactured and issued.

Tribunal

1. In a submission to the Tribunal dated 24 July 2012 the applicant’s migration agent claimed that the delegate had formed an unreasonable view about how Al Qaeda terrorists organised themselves in Iraq which evidenced apprehended bias.  The migration agent submitted that the applicant feared persecution on the following additional grounds:

   a)his ethnicity as a Kurd whose family was regarded as Kurdish traitors because his father had been a senior commander with the pro-Saddam Kurdish militia brigade.  The migration agent submitted that if the applicant was intercepted in Kurdistan, the Barazani faction would take revenge on him;

   b)his membership of a particular social group of collaborators with Saddam Hussein and the coalition forces; and

   c)his imputed political opinion of being hostile to the radical Sunni insurgency’s goal of changing Iraq into an Islamic state due to his status as an apostate and imputed former Ba’athist.

2. The applicant’s migration agent provided a statement made by the applicant and translated on 24 July 2012 in which he disagreed with the delegate’s decision and reiterated his claims.

3. The applicant appeared before the Tribunal on 2 August 2012 and made the following additional claims:

   a)he was born in 1986.  He did not remember saying at his arrival interview that he was born in 1980 and that his parents had registered his birth year as 1986 to avoid military service.  After further questioning from the Tribunal, the applicant said that he was born in 1980;

   b)after he received the threatening letter from the Islamic State of Iraq, he stayed at friends’ houses until he travelled to Australia.  His wife and children had remained at his home so the Islamic State of Iraq would not know that he had run away;

   c)when he left Iraq, his family was living in his home town with his brother.  Three days after he left they were threatened and his brother moved them to another village.  At the time of the delegate’s interview he had not known where they were but later found out what village they were in;

   d)he had visited Iran, Syria and Turkey.  He had visited Iran for tourism purposes but had looked at some products during his visits;

   e)the Americans had had secret names for their bases.  He did not know if they had used ones different from the ones he knew.  He later said that the bases’ names were not secret;

   f)when he transported goods for the Americans, he travelled in a convoy of forty civilian cars, eight “Hummer American cars”, special cars that detected bombs and, sometimes, tanks.  The convoys mostly travelled after midnight to avoid attacks from terrorist groups.  More than fifteen of his friends had been killed from attacks on the convoys;

   g)he had paid money to obtain his driver’s licence which showed that he resided in Duhok.  He had obtained it so that he could travel unobstructed in the Kurdish area to follow up on his goods that arrived from Turkey.  He had a work identity card referring to Duhok which was required by the Turkish authorities to allow goods to enter the Kurdish area before going to Baghdad;

   h)all his documents referring to Duhok were so that the Kurdish government would allow him to import goods from the Kurdish area.  He had to buy the documents so that he could be allowed to work;

   i)he could pass through Kurdish areas but could not live there because he was seen as a traitor.  He had not mentioned his claim that his father was a battalion leader in Saddam Hussein’s army in his written statement because he had left Iran because of his work with the American forces and not because of his father.  He only raised the claim when he was asked why he could not live in Kurdistan;

   j)he needed approval from the security forces to move from one place to another but the security forces had been infiltrated by Al Qaeda and other Islamic groups and they would know his whereabouts;

   k)the Kurds were divided into two groups which were in conflict: those who were linked to Arshad Zeibari and those linked to Barazani, which controlled the government.  He was linked to the Zeibari grouped which had supported Saddam Hussein.  He was considered a traitor to the Kurds;

   l)he did not have a warehouse in Mosul but conducted his business on a mobile basis to avoid being kidnapped and killed by the Islamic State of Iraq and Al Qaeda; and

   m)he had first sought protection when he was in detention because, at the airport, he had been trying to enter Australia legally before making a claim for protection.

4. On 3 August 2012 the Tribunal wrote to the applicant inviting him to comment on or respond to information which it considered might be the reason, or part of the reason, for it affirming the delegate’s decision, including information regarding his business visa application, the authenticity of his coalition forces identity card and his failure to mention at the airport interview that a copy of the threatening letter was stored on his laptop.  In a response dated 7 August 2012 the applicant’s migration agent submitted, among other things, that the applicant’s application for a temporary business visa was a forgery.  It was submitted that the applicant had not provided any of the material particulars used to prepare the application and had not signed the application which had been made without his knowledge or consent.  The applicant’s migration agent also submitted that there did not appear to have been an attempt to establish the identity of the officer who issued the applicant’s coalition forces identity card and that the adverse opinions which had been expressed in relation to it relied on hearsay and subjective opinion.  He questioned whether the Tribunal had made “sufficient enquiries” into the genuineness of the card.  It was also submitted that if the Tribunal had any doubts as to the authenticity of the documents stored on the applicant’s computer, it should request an expert examination of the laptop to determine the date the documents were first loaded onto it. 

5. On 7 and 8 August 2012 the Tribunal wrote to the applicant advising him of information it had received from an official of the United States Central Command through the Australian embassy in Washington.  The official stated that although the applicant’s coalition identification card could be genuine, it was highly suspect and that he would not accept it as proof that the applicant had worked for or been associated with the coalition forces in Iraq.  In response to further enquiries from the Tribunal, US embassy officials in Baghdad stated that they were highly suspicious of the applicant’s identification card and the Department of Foreign Affairs and Trade stated that it was unable to reach a definitive position on its authenticity.

6. On 24 August 2012, the applicant’s migration agent replied.  Included with the applicant’s migration agent’s submissions were the following documents:

   a)a letter dated 20 August 2012 from the mayor of a village in Mosul stating that the applicant’s father, a member of the Zeibari clan, had resided in the area between 1984 and 2004 [“residing … in the year 1985 till the year 2004”] and was a company commander in the first battalion of the National Defence League (Fursan militia);

   b)a map of the Nineveh governorate with the applicant’s father’s village circled;

   c)a volunteer’s identity card issued to the applicant’s father in November 1987 identifying him as a member of the Zeibari tribe;

   d)a “rent contract” form for a property in Mosul signed by the applicant indicating that he had resided at that property since July 2004; and

   e)a coalition forces identification card issued to the applicant’s cousin on 1 May 2003 which included information and formatting identical to the applicant’s card.

   The applicant’s migration agent submitted that unless US officers in Iraq at the relevant time denied the genuineness of the cards provided by the applicant and his cousin, the Tribunal had to accept that the applicant’s card was genuine and evidence that he had worked as a contractor for the US military. 

7. On 31 August 2012 the applicant’s migration agent provided a statutory declaration declared by Nihat Osman Kerim.  Mr Kerim declared that he had travelled to Iraq between April and August in both 2010 and 2011.  He declared that he had visited the applicant and his father at their home.  Mr Kerim declared that during his first visit the applicant and his family told him that the applicant was working as a truck driver for the US military.  He declared that the applicant’s father had been a member of Saddam Hussein’s Fursan militia and that the applicant’s family was from the Zeibari faction which had a long standing feud with the Barazani faction.  Mr Kerim declared that when he returned to Iraq in April 2012 the applicant’s family was no longer at their home and he was told that they had gone into hiding.

8. On 12 October 2012 the applicant’s migration agent made the following further submissions to the Tribunal:

   a)the applicant had been stressed by the prolonged nature of his arrival interview and as a result had waived his right to legal assistance;

   b)there was no formal legal requirement that a person needed to seek protection on arrival at the airport.  The applicant had failed to seek protection at the airport because he had had no understanding of Australian protection law and had not known any lawyers to approach, he had been reduced to a state of confused shock after his visa was questioned and as an Iraqi he did not trust government officials, including an Australian immigration official, and gave answers which he thought the official would want to hear; and

   c)he (the applicant’s migration agent) had not been in Australia when the applicant’s protection visa application was prepared and his associate who had prepared the application had not been fully conversant with the intricacies of Kurdish history and clan alignments.  The applicant had not volunteered information about his father because he had not appreciated the significance to his claims for protection of his father’s involvement with the Fursan militia.

1. Attached to the agent’s submissions was a statutory declaration declared by the applicant on 12 October 2012.  In it the applicant claimed that he had provided the man who organised his visa to travel to Australia with his passport and two photographs only.  He claimed that when the man returned his passport with the visa, he told him to tell anyone who asked that he was a member of the Iraqi Hajj group.  When he arrived at Sydney Airport he forgot what the smuggler had told him and said he was travelling for business because that was what his visa said.  He claimed that he only remembered what the smuggler had told him when he was asked if he was a member of the Iraqi Hajj committee.  He said all of this because he wanted to enter Australia in a legal way and then find a lawyer to help him apply for a protection visa.

2. In a further statement submitted on 2 November 2012, the applicant claimed that because of the heavy volume of traffic on the highway he had never been stopped and questioned when passing through Kurdish regional area checkpoints.  He claimed that the Kurdish security forces were concerned with persons who resided in the Kurdish regional area and that he had not resided there since 2003.  The applicant claimed that if he returned to the Kurdish regional area he would have to report to the police and register his family and tribe details which would put him in danger.

3. The Tribunal send a further s.424A notice to the applicant on 23 October 2013 concerning consistencies between the details on his business card and his incoming passenger card. On 6 November 2012 the Tribunal received a submission from the applicant’s migration agent which characterised the business card as a forgery.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or pursuant to s.36(2)(aa) of the Act.

2. For the following reasons the Tribunal found that the applicant was not a witness of truth:

   a)the applicant did not make any claims for protection when he was interviewed on numerous occasions over a period of several hours when he arrived in Australia.  The Tribunal did not accept the applicant’s various explanations for failing to do so; and

   b)it was implausible that the applicant had remained unaware of the lodgment of his temporary business visa application, had not authorised it and had not provided any information in support of it. The Tribunal found that the application had been filled in on the applicant’s behalf and that, pursuant to s.98 of the Act, he was taken to have filled in the visa application form and lodged it, regardless of his claim that he had not specifically instructed any other person to do so.

3. For the following reasons the Tribunal did not accept that the applicant was ever employed or worked as a truck driver, contractor or in any capacity with the American or coalition/multi-national forces in Iraq:

   a)the applicant stated that he started working for the US military when he was sixteen years old but at his arrival interview and Tribunal hearing stated that he was born in 1980 which meant that he was twenty-three years old when he commenced working for the US military;

   b)although in his protection visa application the applicant claimed that he had been living in Mosul since May 2002 and had commenced working for the Americans in May 2003 in Mosul, at the delegate’s interview he claimed to have been living in a village with his father until 2004 when the Kurdish militia appropriated their house.  The Tribunal noted that at its hearing the applicant provided a letter from the mayor of the village where he lived until 2004 and a map and stated that the village was some distance from Mosul;

   c)despite claiming to work for the US or coalition/multi-national forces for more that two and a half years, when questioned the applicant was unable to provide anything more than general observations about his alleged work.  The Tribunal found the applicant’s account of his claimed work to be unconvincing and said that this cast doubt on whether he had ever worked with the US or coalition/multi-national forces as a truck driver or in any capacity;

   d)the applicant was only able to name one of the US military bases to which he claimed he delivered goods.  The Tribunal found that the names of the bases were well known and publicly available and said that it would have expected the applicant to have been able to name more than one;

   e)although the applicant provided the Tribunal with a copy of a coalition forces identification card which he claimed belonged to his cousin, who was also a truck driver, and had been issued on the same day as his own, at the Tribunal hearing he did not refer to having worked with his cousin or to having travelled with him to obtain the card.  The Tribunal gave the applicant’s cousin’s identification card no weight because it found that the applicant’s failure to refer to his cousin, either in his written statements or in the Tribunal’s hearing, cast doubt on whether the copy of the applicant’s cousin’s identification card was genuine; and

   f)although the Tribunal did not draw any adverse conclusions about the applicant’s coalition forces identity card based on opinions it had received as to its veracity, it gave the card no weight because of the applicant’s inconsistent and unconvincing evidence about his work with the coalition forces.

4. Having found that the applicant had never associated with the US or coalition/multi-national forces in Iraq, the Tribunal did not accept that he would be considered an apostate from Islam by any armed Islamic group or by any group or individual in Iraq for the reasons he claimed.  The Tribunal did not accept that the applicant had received a threatening telephone call in 2010 or a letter in 2012 from any armed Islamic group, whether or not associated with Al Qaeda.  The Tribunal stated that it was strengthened in this view by the applicant’s failure at his arrival interview to make this claim or to show the threatening letter which he claimed he had been carrying.  The Tribunal also found that the applicant’s inconsistent evidence about where he and his family had lived after receiving the threatening letter cast doubt on whether he had received that letter or any threats, either in 2010 or any other time, and it did not give the alleged threatening letter any weight.

5. The Tribunal noted that the applicant gave inconsistent evidence about the whereabouts of his wife and children and found that this cast doubt on his claim to have received a telephone or written threat from any armed Islamic groups or that since his departure armed Islamic groups had threatened his family.  The Tribunal did not accept that the applicant moved from house to house before departing Iraq in April 2012, that an armed Islamic group or any individual became aware he had left Iraq, that any member of his family had been threatened, that his family had gone into hiding at some location not advised to him or that his family was facing grave danger.  The Tribunal noted that the applicant had not mentioned in his protection visa application that he had reported the threatening letter to the police even though he provided some detail about how he had received it.  The Tribunal did not accept as plausible that the applicant would have forgotten that he had sought police protection and found that the applicant’s evidence on this issue was contrived to enhance his application.

6. The Tribunal found that the applicant’s inconsistent evidence about his place of residence in Iraq after April 2002 cast doubt on his claim that his family home had been appropriated by the Kurdish militia.  The Tribunal noted that the applicant had not made the claim in his protection visa application and did not accept his reasons for not having done so.  In this connection, the Tribunal did not accept as plausible that the applicant would have forgotten or omitted to mention this claim in his written statement, given that he alleged that it was the basis of his fear of travelling to the Kurdish regional governorate area.  The Tribunal again noted that the applicant had given inconsistent evidence about where he had lived from 2002 and found that this cast doubt on his claims about his father and his failure to travel to the Kurdish area.  The Tribunal found that the applicant’s failure to mention these claims at his arrival interview or in his written claims lodged with the protection visa application was not because he wanted to avoid “unpleasant repercussions”, did not appreciate the significance of his father’s position to his claims or because person who assisted him to prepare the application did not know enough about Iraq, but rather because he had contrived those claims in order to enhance his application for protection.

7. The Tribunal found that the applicant gave inconsistent evidence about his business card with the name of his company and an address in Zakho: at the Tribunal hearing he claimed that the card, along with other documents, had been created so that he could enter the Kurdish area to travel to Turkey and to access his goods coming from Turkey whilst in his statutory declaration made on 12 October 2012 he claimed that the card and all his other identification documents had been fabricated by a smuggler for the purpose of obtaining his business visa. The Tribunal noted that although the applicant claimed that he had never had a business card and that the email address on the card was incorrect, he provided the same email address on his incoming passenger card and confirmed that one of the telephone numbers on the card belonged to his brother.  The inconsistencies in the applicant’s evidence led the Tribunal to reject the applicant’s claims that the business card and all the other identification documents provided to the Australian Embassy in Amman were forgeries created by the smuggler or alternatively forgeries he created himself for the purposes of doing business or travelling through the Kurdish regional area.  The Tribunal consequently found that the business card and all the other identification documents, including the driver’s licence, work permit and membership of the Duhok Chamber of Commerce & Industry were genuine documents.  It gave significant weight to the driver’s licence which indicated that the applicant had been residing in Duhok since at least February 2007.

8. The Tribunal found that Mr Nihat’s passport details contradicted the information he had given in his statutory declaration about when he had travelled to Iraq and how long he had been there.  The Tribunal found that as Mr Nihat’s passport cast doubt on his claims that he had had contact with the applicant’s family and had obtained information about the applicant and his family, it gave his statutory declaration no weight.

9. The Tribunal did not accept any of the applicant’s claims related to his father.  In this regard:

   a)the Tribunal noted that the applicant had first made those claims at his departmental interview and did not accept the applicant’s explanations for this delay; and

   b)the Tribunal noted that although the applicant claimed that he was unable to travel to the Kurdish area, his passport indicated that he had entered and exited the Kurdish area on over twenty occasions when travelling to Turkey, Iran and Australia.  The Tribunal concluded that the applicant had contrived his claims relating to his father for the purpose of enhancing his claim for protection.

10. The Tribunal did not accept that the applicant would return to Baghdad or any other part of Iraq outside the Kurdish regional area given his past history of travel into and out of the Kurdish regional area.  In this regard, the Tribunal found that the applicant had resided and worked in the Kurdish regional area for many years and that his home region was the Kurdish regional area, evidenced by his identification and business cards.  The Tribunal noted that the applicant had travelled through Erbil International Airport on journeys to and from Turkey and to Australia and had made twenty other journeys across the Kurdish regional area’s land borders.

11. In relation to the applicant’s clamed fear of living in the Kurdish regional area:

    a)the Tribunal found that the applicant would not need to register his presence in the Kurdish regional area as he had already been residing and operating a business there.  As it did not accept that the applicant had ever worked as a truck driver for the US or coalition forces, or was at risk of any harm for having travelled to Australia, the Tribunal did not accept that he would be perceived as a collaborator, apostate or traitor or face any form of serious harm by any armed Islamic group or individual in the Kurdish regional area;

    b)the Tribunal noted country information which indicated that persons with certain profiles, such as journalists, protesters, members of opposition parties and women threatened by “honour” killing, had been targeted by agencies of the Kurdish regional area government.  However, it found that as the applicant had never claimed to be a member of any of those groups, he would not be at risk of any harm for any Convention reason in the Kurdish regional area;

    c)as the applicant had not claimed to have been involved in any demonstrations, to have voiced any opinions demanding reform or to have engaged in any political activities, and had not indicated that he would voice any opinion if he returned to the Kurdish regional area or anywhere else in Iraq, the Tribunal did not accept that he had ever engaged in any political activities or was likely to engage in any political activities or voice any opinions against the government of the Kurdish regional area or Iraq.  The Tribunal did not accept that the applicant had a well-founded fear of persecution for any Convention reason relating to the political situation in the Kurdish regional area; and

    d)the Tribunal noted that the applicant’s claim that he was a member of the Zeibari tribe, and as a result at risk of persecution from the Barazani tribe, was first made at its hearing.  The Tribunal did not accept that the applicant had failed to make this claim earlier because he had not been asked or given an opportunity to do so.  The Tribunal noted that it had been unable to find credible independent country information indicating that members of the Zeibari tribe were discriminated against or suffered any form of harm or persecution in the Kurdish regional area or throughout Iraq.  Having regard to the failure of the applicant to make the claim earlier than its hearing, the Tribunal did not accept that the applicant had a well-founded fear of persecution for any Convention reason relating to his membership of the Zeibari tribe from any member of any other tribe or any political group in the Kurdish regional area.

12. In relation to the applicant’s claim that having travelled to Australia he would be considered to have associated with the coalition forces and have a hostile political opinion imputed to him, the Tribunal noted that it had found that the applicant had not worked as a truck driver or in any other capacity for the coalition forces.  The Tribunal found that there was no evidence before it to support a claim that Iraqi citizens who had travelled on a short term basis to other countries which were members of the coalition forces in Iraq had a well-founded fear of persecution for any Convention reason.

13. The Tribunal noted in relation to a submission made by the applicant’s migration agent that there was an apprehension of bias on its part, that it had followed the statutory requirements which required it to put information to the applicant that would, subject to his comment or response, form the reason, or a part of the reason, for affirming the delegate’s decision.  It did not accept that it had unnecessarily delayed the consideration of the review.  The Tribunal noted that the applicant or his migration agent had made several requests for additional time to respond to information put to the applicant and that it had agreed to extend the periods of time to respond.

14. Having considered the applicant’s claims singularly and cumulatively, the Tribunal found that there was no real chance that he would be persecuted for any Convention reason if he returned to the Kurdish regional area of Iraq, then or in the reasonably foreseeable future.  The Tribunal found that the applicant did not have a well-founded fear of persecution in Iraq.  The Tribunal further found that, in light of its reasons for rejecting the applicant’s Convention claims, it was not satisfied that there were substantial grounds for believing, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, that there was a real risk that he would suffer significant harm.

Proceedings in this Court

1. In the amended application the applicant alleged:

   1.The Tribunal's decision was affected by jurisdictional error in that the Tribunal misinterpreted the effect of s 98 of the Migration Act 1958.

   Particulars

   The Tribunal applied s 98 of the Act to an application for a visa lodged under the Applicant's name at the Australian Embassy in Amman. The Tribunal considered that the Applicant was "taken to have filled in the visa application form, and lodged the application, regardless of his claim that he did not specifically instruct any other person to complete or lodge that application" [CB 506 at [289]). The question before the Tribunal, however, was not whether the applicant was legally responsible for the claims made but whether they were in fact true, which the applicant claimed they were not. The Tribunal thus misdirected itself in assessing the applicant's overall credibility by comparing the statements made in the visa application with his claims for a protection visa.

   2.The Tribunal failed to make an obvious inquiry about a critical fact which could have been easily ascertained.

   Particulars

   a) It was critical to the Tribunal's determination that the applicant had not raised any claim to fear harm in Iraq until after he had been taken to the detention centre at Villawood, with the necessary implication being that he had fabricated the claim after his visa was cancelled.  The applicant claimed that the letter containing the threats was on his laptop at the time of his arrival in Australia and that he had no access to the machine which was in the possession of the detention centre management.  He said that the laptop could be examined to substantiate that claim.  It was entirely within the Tribunal's power to inquire about what was in the laptop, but it did not do so.

   b) During the hearing, at 3:52 on the recording, the applicant's representative requested that the Tribunal make inquiries in the United States about the applicant's identity document.  It was entirely within the Tribunal's power to do so, but it did not.

   3.The Tribunal denied the applicant procedural fairness in the manner in which it conducted the hearing.

   Particulars

   During the hearing, at 3:43:28 on the recording, the Tribunal indicated that a further hearing would be necessary but the applicant's representative was unavailable to attend.  The Tribunal made no attempt to make alternative arrangements.

   4.During the hearing, at 2:44 on the recording, the applicant's representative complained that the applicant had a problem with the Immigration officer who had interviewed him previously.  The Tribunal ignored this complaint.

Ground 1

1. Section 98 of the Act provides:

   A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

   The applicant alleged that the Tribunal should not have relied on him having been deemed by the Act to have completed his business visa application form when deciding on the credibility of the allegations which he had, in fact, made. This argument does not take account of the fact the Tribunal found that the applicant had actually been involved in the lodgment of the business visa application. In para.289 of its decision it said:

   The Tribunal finds it implausible that the applicant could have remained unaware of the lodgement of the Subclass 456 visa application, he did not authorise it and had provided no information in support of that application.  All of this leads the Tribunal to find that the application was filled in on his behalf. 

2. The relevance of this preliminary finding of fact was that the Tribunal subsequently concluded, although principally based on other evidence, that the business card and other identification documents provided to the Australian embassy in Amman were genuine, a finding which was neither inconsistent with the passage quoted above nor based on the deeming effect of s.98. That was the only finding to which the question of who completed the application form was relevant. Specifically, the deeming effect of s.98 did not form part of the basis for the Tribunal’s finding that the applicant was not a credible witness.

3. For these reasons, the first ground of the application does not disclose error on the Tribunal’s part.

Ground 2

1. In the first particular of the second ground of the application the applicant alleged that he had had no access to his laptop computer while he was in detention and that any queries which the Tribunal might have had in relation to the authenticity of the threatening letter said to have been stored on the laptop could have been resolved by making enquiries into whether the letter had been on the laptop at the time he arrived in Australia.  This echoed the 7 August 2012 submission from the applicant’s migration agent to the Tribunal inviting it to request an expert examination of the laptop to determine the date on which the documents on the laptop had first been loaded onto it, if it had doubts as to the authenticity of those documents.

2. To the extent that the applicant alleges in the amended application that he did not have access to his laptop while in detention, this is contradicted by the evidence contained in the Court Book (“CB”), which was exhibit A.  Commencing at CB 389 there is an email chain from which it can be inferred that if the applicant had sought access to his laptop, access would have been given under supervision.  Moreover, in addresses to the Court the applicant stated that he had accessed his property while in detention, although in the presence of an officer, and that he had had access to his laptop in order to send documents to his migration agent.

3. Turning to the suggestion that the Tribunal should have investigated the threatening letter, s.427(1)(d) of the Act provides the Tribunal with the power to order an investigation or a medical examination but does not require it to exercise that power. Circumstances may arise in a particular case by reason of which the Tribunal has to make particular enquiries: a failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome of the review to constitute a failure to review: Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 at 1129 [25]. Nevertheless, it is for an applicant to advance whatever evidence or argument he or she wishes the Tribunal to consider: Abebe v Commonwealth (1999) 197 CLR 510 at 576 [187]. In this case, the applicant had access to the relevant material and adduced no evidence to suggest that he had sought, and been refused, the sort of access which would have been able to support his allegation that the document in question had been loaded onto his laptop before he came to Australia.

4. In any event, the date the document was loaded into the laptop, assuming that it was, was never a matter of significance principally, it would appear, because the letter itself was of no particular relevance to the Tribunal’s decision.  Importantly, its date and genuineness were not amongst the matters cited by the Tribunal in para.329 of its reasons where it set out the matters on which it placed significant weight in concluding that the applicant was not a witness of truth.  Moreover, proof of the date on which the document was loaded onto the laptop would not, without more, have proved anything more than that, for instance it would not have proved that the document was genuine.  That being so, it could not be said that the Tribunal’s failure to make the suggested investigation deprived the Tribunal of evidence which was critical to the review.  

5. In such circumstances, no duty to enquire arose and the fact that the Tribunal did not undertake the examination suggested by the applicant’s advisers did not amount to a failure to review of the sort discussed in SZIAI.

6. The second element of the second allegation concerned an assertion that the Tribunal should have made enquiries in the United States about the applicant’s coalition forces identity document.  This allegation is not made out on the facts.  As the summary of the Tribunal’s decision record set out earlier in these reasons discloses, the Tribunal did make enquiries in the United States, as well as in Iraq, to determine the genuineness of his identity document.  Those enquiries suggested that it was bogus.  Submissions made to the Tribunal by the applicant’s migration agent suggested that the Tribunal should have attempted to establish the identity of the officer who purportedly issued the applicant’s identity card or should have shown the card to American forces who were in Iraq at the time it was purportedly issued and their opinions on it obtained.  Enquiries of that sort do not meet the SZIAI test of ones by which a fact can be easily ascertained such that a failure to make them constitutes a failure to review.

7. I do not conclude that the Tribunal’s enquiries were deficient, let alone sufficiently so that its decision was affected by jurisdictional error.

Ground 3

1. In the third ground of the application the applicant alleged that the Tribunal indicated that a further hearing would be necessary but did not schedule one when the applicant’s migration agent advised that he would be (temporarily) unavailable.  In his address to the Court the applicant submitted that the Tribunal had offered a further hearing but his migration adviser had not accepted the invitation because he was to be in Perth at the time.  Assuming this to be correct, the applicant is taken to have declined the alleged suggestion of a further hearing and so cannot now be heard to complain that such a hearing did not take place. 

2. But in any event, the relevant exchange was reproduced in the transcript of the Tribunal hearing which was annexed to the affidavit of Katherine Nicole Hooper affirmed on 25 June 2013.  It was in the following terms:

   Tribunal Member:          I’ve got all this information.  Is there anything, in particular, about the evidence today that you wanted to raise or - - -

   Applicant’s adviser:  Yes.  About the - - -

   Tribunal member:          Because you will have a chance also to raise it - - -

   Applicant’s adviser:  …

   Tribunal member:     You will also have a chance to raise it in a written statement or a written submission.

   Applicant’s adviser:  … how busy I am.  You know, I … to Perth to attend a dinner that [counts] … really to send me … to take some of the work, but if there are any particular matter that you are to put forward to us, then I will be more than able to answer you.

   I have compared the transcription against the sound recording of the Tribunal hearing and find that it sets out accurately what of relevance was said.  Much of what the applicant’s migration agent said was indistinct and could not be made out, however, this is of no particular importance.  The important thing to emerge from the exchange was that the Tribunal did not suggest or foreshadow a further session of its hearing but rather the ability of the applicant and his migration agent to raise any further matters in writing.

3. This reality was re-enforced by the Tribunal’s statement, found at p.48 of the transcript:

   You’ve written all these submissions and I’ve considered them.  So if you want to put anything else, you could do so, I think, in writing.  Mr [SZSIA] is there anything else that you would like to say before we close the hearing?

   and its further statement found at p.49 of the transcript:

   I will call the hearing officer in and close the hearing.  I will need to write to you, so you will receive a letter about there are issues under section 424A that have to be put in writing or have to put and you’ve got a time limit to respond to that and then if you wanted to submit further documents, whether it’s translation or any other document you …

4. There was no other exchange which suggested that the Tribunal had raised the possibility of a further session of the hearing.  I therefore conclude that the Tribunal did not, as the applicant alleged, suggest a further session of the hearing and thus his allegation to that effect is not made out.

Ground 4

1. At the hearing of this application the applicant clarified this allegation concerning a complaint made to the Tribunal about the “Immigration officer” who had earlier interviewed him and said that his complaint was directed to the delegate who had decided to refuse his application for a protection visa, not the immigration officer who had interviewed him at the airport and cancelled his business visa. 

2. I have listened to the recording of the Tribunal’s hearing and compared it with the transcript.  The allegation is that a complaint was made at 2’44” of the sound recording of the Tribunal hearing.  The corrected transcript indicates that at the Tribunal hearing the applicant complained about the delegate in the following terms:

   At the immigration interview, the officer didn’t even come to talk to me face-to-face.  The interview was done over the phone over an hour and a half, so when I would give an answer and I would try to explain my answer more, you can have a look at the records, she would say, “No.  You just have to answer my question only”.  I was not able to elaborate, but how you are going to need the …[recte: but now you are giving me the chance to … ]

3. Contrary to the applicant’s allegation, the Tribunal did consider the complaint he made about the delegate conducting her interview with him by telephone. In doing so, it observed that the applicant’s migration agent had agreed that the interview be by telephone. The Tribunal did not further consider that issue and the applicant has identified no basis on which it should have. Specifically, matters adverse to the applicant’s claim for protection which arose out of that interview were put to him by the Tribunal pursuant to s.424A of the Act. By doing so in the context of a re-hearing, the Tribunal addressed any unfairness which might have arisen out of the manner in which the delegate’s interview was conducted: Twist v Randwick Municipal Council (1976) 136 CLR 106 per Mason J at 114 and 116. Consequently, no error by the Tribunal has been demonstrated in relation to that complaint made to the Tribunal.

4. Further, the applicant did not identify why any failure to consider his complaint against the delegate would amount to jurisdictional error.  Without further elaboration, no link to a reviewable error is identifiable.

5. For these reasons, the fourth ground of the application is not made out.

Ground 5

1. At the hearing the applicant submitted that he believed the Tribunal was wrong and queried how, if it had taken all his documents into account, it could have decided to affirm the delegate’s decision.  To the extent that the applicant suggested that the Tribunal had not considered some or all of the material which he had provided to it, he did not identify what material had not been taken into account or, were that to have been the case, why such a failure meant that the Tribunal’s decision on his review was affected by jurisdictional error.  It is not apparent that any information was overlooked in the Tribunal’s lengthy and detailed decision.

2. Further, to the extent that this allegation sought to challenge the Tribunal’s decision on the merits of the applicant’s application for a protection visa, it raised a matter over which the Court has no jurisdiction.  The Court’s power is limited to determining whether the Tribunal’s decision is affected by jurisdictional error with the consequence that, even if it disagrees with a finding made by the Tribunal as to the merits of a visa application, it has no power to substitute its own views on that question or to set the Tribunal’s decision aside because of that disagreement.

3. For these reasons, the issues raised by the applicant for the first time at the hearing of this application did not identify a basis upon which the Tribunal’s decision should be set aside.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  10 July 2013