SZSSV v Minister for Immigration

[2013] FCCA 1539

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSSV & ORS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1539

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. 

Legislation:  
Migration Act 1958 (Cth), ss.36, 46A, 424AA, 424A

Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63

SZOOR v Minister for Immigration and Citizenship and Another (2012) 202 FCR 1; [2012] FCAFC 58

First Applicant: SZSSV

Second Applicant: SZSSW

Third Applicant: SZSSX

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 682 of 2013

Judgment of: Judge Barnes

Hearing date: 13 September 2013

Delivered at: Sydney

Delivered on: 13 September 2013

REPRESENTATION

Applicant: In person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The title of the First Respondent be amended to read, ‘Minister for Immigration, Multicultural Affairs and Citizenship’.

2. The application is dismissed.

3. The First and Second Applicants pay the costs of the First Respondent fixed in the sum of $5,400.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 682 of 2013

SZSSV

First Applicant

SZSSW

Second Applicant

SZSSX

Third Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 19 March 2013.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicants protection visas. 

2. The Applicants are husband and wife and their child. They arrived in Australia as irregular maritime arrivals. They applied for protection visas on 12 October 2012 after the Minister exercised his power to enable them to do so under s.46A(2) of the Migration Act 1958 (Cth) (the Act). In support of the protection visa application the First and Second Applicants provided written statements dated 11 October 2012.

3. Relevantly, the First Applicant, who is referred to for convenience as the Applicant, claimed that he and his son (the Third Applicant) were stateless Faili Kurds from Iran.  He claimed he would be at risk of harm if he returned to Iran because he did not have any documents and he left Iran on a false passport.  He claimed he had been arrested and discriminated against in the past by the authorities as an undocumented Faili Kurd and that his child would be denied health and education services in Iran.

4. The Applicant also claimed that he would face harm from the family of his brother’s wife because they disapproved of his brother’s marriage.  He claimed that his family was considered to have violated the honour of his sister-in-law’s family, which included members of Sepah and the Basij.  He claimed the family had continued to harass him and had managed to track him down after he relocated to another city in Iran.  He claimed to fear arrest and imprisonment and consequential abuse if he returned to Iran as the relatives of his brother’s wife would try to find and harm him and would arrange for the authorities to imprison and abuse him.  He claimed the police would not protect him because he was a Faili Kurd without any documents. 

5. In a written statement of 11 October 2012 the Applicant’s wife claimed that she was an Iranian citizen of Kurdish ethnicity, but feared she would be harmed as “a family member of [her] husband who [wa]s being targeted because his family ha[d] violated the honour of another family” and also because she would be “considered to have committed a crime by leaving Iran with an illegal person and staying outside the country longer than allowed”.

6. In addition, the Applicants’ then advisor provided a detailed written submission dated 30 October 2012.  It is apparent from the decision of the delegate and the Tribunal’s decision that the Applicant attended a departmental interview. 

7. The application was refused by a delegate of the First Respondent and the Applicants sought review by the Tribunal.  They were invited to attend a hearing on 22 February 2013 to give evidence and present arguments in support of their claims. 

8. The only evidence before this Court of what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for decision. The Tribunal recorded that it raised various issues with the Applicant and put certain information to him pursuant to s.424AA of the Act in order to meet its obligations under s.424A(1) of the Act. In essence, this information related to claims made and evidence given by the Applicant’s brother in connection with his earlier successful application for a protection visa. The Tribunal recorded that it explained the relevance of such information to the Applicant’s claims. It referred in particular to various inconsistencies between the brother’s claims and the Applicant’s claims and evidence about matters such as whether his family had a white card, where his father was born and the details of his brother’s relationship with his wife and her family. The Tribunal advised the Applicant that he could seek additional time to comment or respond.

9. It appears from the Tribunal account of the hearing that the Applicant chose to respond orally initially at the hearing.  Subsequently his advisor provided a written submission of 4 March 2013 that addressed in some detail the information put to the Applicant at the hearing and recorded the explanations for the inconsistencies provided by the Applicant after speaking to his brother.  The advisor also addressed matters such as the Applicant’s rights in relation to Iraq and issues in relation to the Third Applicant. 

10. In addition, after the hearing the Tribunal wrote to the Applicant under s.424A of the Act. Its initial letter of 4 March 2013 was re-sent in corrected form on 5 March 2013 after the Tribunal apparently became aware that the original letter contained information not applicable to the Applicant. The information put under s.424A related in essence to the claims that had been made in the Applicant wife’s written statement about the circumstances of and the views of her family about her marriage. The advisor responded, referring to confirmation of some claims by the wife and to instructions from the husband.

11. In its reasons for decision the Tribunal affirmed the delegate’s decision. It set out the claims made by the Applicants at various times. It also referred to issues raised and claims made on the Applicants’ behalf by their advisor. It set out in some length what was said to have occurred at the Tribunal hearing. It referred to the s.424AA issues and the evidence in that respect and to the post-hearing s.424A letter and response. It also referred to country information relating to failed asylum seekers returning to Iran.

12. In its findings and reasons the Tribunal summarised the Applicant’s claims that he and his son were undocumented Faili Kurds and his wife was an Iranian Kurd and that he feared returning to Iran because his life would be in danger because of a dispute with his brother’s wife’s family who were members of the Basij and Sepah.  However the Tribunal did not accept that the First and Third Applicants were undocumented Faili Kurds and found that the Applicants were all Iranian citizens.  It assessed their claims accordingly. 

13. The Tribunal acknowledged the caution to be exercised in concluding that a person was not telling the truth, particularly in circumstances where evidence was given in an entry interview and there may be a degree of confusion or omission.  However it also pointed out that significant inconsistencies and embellishments should not be lightly dismissed and that it was not required to accept uncritically any and all claims made by an applicant.  The Tribunal found that the Applicant was not a reliable, credible or truthful witness. 

14. In finding that the First and Third Applicants were Iranian citizens, the Tribunal referred to the difficulty of establishing nationality in the absence of any supporting documentation, but concluded that it was not satisfied that the Applicant was undocumented for a number of reasons. 

15. First, the Tribunal found that the Applicant’s “story [wa]s inconsistent in several areas with the claims made by his brother who had successfully applied for protection in Australia two years previously”.  The Tribunal stated that it had had access to the Applicant’s brother’s file and had read and listened to his statements and interviews.  In particular, the Tribunal had regard to inconsistencies in relation to whether the Applicant’s family had been issued with a white card.  The Tribunal addressed the Applicant’s explanation for this inconsistency but did not accept that the brother was unaware of the circumstances because he was a child at the time, given that he had made such claim as an adult in a statutory declaration. 

16. The Tribunal also had regard to inconsistencies in the evidence of the Applicant and his brother about their father’s birth place.  It was of the view that insofar as the brother had indicated that he did not know where his parents were born, it did not accept that adult members of the family would be unaware of their parents’ place of birth, given the importance of the place of birth in determining a family’s access to state benefits in Iran.

17. In addition, in light of independent country information and its own experience, the Tribunal did not accept as credible the Applicant’s claims regarding his departure from Imam Khomeini Airport in Iran including his claims that a people smuggler accompanied him through the process notwithstanding that he claimed to have a real passport that was valid for 15 days.  Nor did the Tribunal accept that a people smuggler without luggage, passport or tickets could pass through the multiple check points at the airport without being stopped.  The Tribunal did not accept that the Applicants were accompanied by a people smuggler through the departure process.  It found that the Applicant was able to pass through the airport without difficulty as he was in possession of a valid Iranian passport because he was a citizen of that country.

18. The Tribunal also found that other claims relating to the Applicant’s identity were not credible and added strength to its finding that the Applicant was not undocumented, but was a citizen of Iran, including his wife’s claim that her Iranian Kurdish family had allowed her to marry the Applicant because they thought he would eventually be given identity.  Given the importance of identity in accessing state benefits for Kurds in border areas in Iran, the Tribunal did not accept “that his wife’s family would have allowed this to occur on the expectation that God would look after [the Applicant’s] identity” as had been claimed in the response to the s.424A letter.

19. The Tribunal also found that the Applicant’s claim that although he was the oldest male member of the family after his father’s death he did not take steps to obtain a white card because he was too busy working, lacked credibility. 

20. The Tribunal made no finding as to whether the Applicant was an Iranian citizen from birth or whether he was granted Iranian citizenship but found, consistent with independent country information, that he obtained citizenship through one of these methods. 

21. Based on its findings in relation to the Applicants being Iranian citizens, the Tribunal found that they, including the child, would have access to state-provided health care and that the child would have access to state provided education.

22. The Tribunal also considered, but for reasons which it gave did not accept as credible, the Applicant’s claims that his brother was married to someone who had family members who were in Sepah and the Basij.  It found that his claims and evidence in this regard were vague, lacked credibility and, in particular, were inconsistent in specified respects with the account given earlier by his brother in connection with his protection visa application.  It detailed its concerns in this respect, in particular in relation to the Applicant’s vagueness about how the couple met, and the lack of credibility in the claim that the daughter of a strictly religious Sepah member and sister to two Basijis would be in a position to meet, establish contact with and marry into an undocumented Faili Kurd family.  The Tribunal also had regard to inconsistencies in the brothers’ accounts of troubles in the marriage and the actions and attitude of the wife’s family. The Tribunal considered, but rejected as fabrications, the Applicant’s explanations for such inconsistencies. 

23. The Tribunal’s finding that there was no marriage between the Applicant’s brother and a woman with family members from the Sepah and Basij was said to be strengthened by other concerns in relation to the actions of the brothers that were said to lack credibility.  These included the claim that while the Basij brothers were unable to locate their sister despite the fact she lived with the Applicant and his family for nearly a year, they could track down the applicant some years later, although he was undocumented, had changed jobs and worked in an entirely different city of over a million people.  The Tribunal also had regard to the fact that, despite the ongoing harassment the Applicant claimed from these Basij family members over several years, he could not remember either of their names. 

24. The Tribunal took into account that the claims for protection made by the Applicant’s brother had been accepted, but found on the basis of the evidence before it that key elements of the brother’s claim were fabricated.  It rejected the claims and the impact on the Applicant of such claims. 

25. The Tribunal accepted that the Applicants were Iranian Kurds.  It considered whether any of them, including the wife, had a well-founded fear of persecution as an Iranian Kurd.  It acknowledged that there was evidence that Kurds may face discriminatory practices in Iran, including restrictions on cultural expression, but did not accept that such actions constituted serious harm for Convention purposes.  While it accepted that the First Applicant had carried out unskilled work, it found he was not restricted from working and that his employment was commensurate with the level of his education.  It did not accept that the conditions in which most Iranian Kurds lived were such as to constitute an environment in which the Third Applicant would suffer serious harm for any Convention-related reason.

26. The Tribunal also had regard to the situation for the Applicants on return to Iran as failed asylum seekers.  It referred to country information relating to the treatment of returnees and failed asylum seekers.  It found there was no evidence to suggest that merely being a returnee would in itself result in mistreatment.  It did not believe that the First Applicant was politically active, either in Iran in Australia, or that he or his family would come to the attention of the Iranian authorities for any real or imputed political opinion.  It was not satisfied there was a real chance that the Applicants would be subjected to serious harm for being failed asylum seekers.

27. The Tribunal also considered the complementary protection criterion, but found that it did not accept that the Applicants were undocumented Faili Kurds, that the Applicant had a brother who was married to a girl whose family had members in the Basij and Sepah; that he was assaulted or wanted by these Basij members; that he had come to the attention of the authorities for political reasons, or that the Applicants would be unable to access health care; that the Applicant child would be unable to access education. Hence it was not satisfied that there were substantial grounds for believing there was a real risk that any of the Applicants would suffer significant harm as provided for in s.36(2)(aa) of the Act.

28. The Tribunal affirmed the decision not to grant the Applicants protection visas.  The Applicants sought review by application filed in this Court on 4 April 2013.  There are two grounds in the application. The first ground is an unparticularised claim that the Tribunal decision was “affected by jurisdictional error”.  Ground two is that the Applicants “would like a lawyer from the Court Legal Advice Panel to check [the] decision for jurisdictional error”.  The Applicants had the benefit of advice under the panel advice scheme.  They did not file an amended application, a transcript of the Tribunal hearing, other affidavit evidence or written submissions prior to the hearing.  No jurisdictional error is established on the basis contended for in ground two. 

29. In the hearing today the Applicant made lengthy submissions in effect taking issue with the fact that the Tribunal did not believe that he was telling the truth.  He sought to reiterate or provide further explanations for matters that had been of concern to the Tribunal.  As I endeavoured to explain to him, merits review is not available in this Court.  His disagreement with the Tribunal’s conclusions does not establish jurisdictional error. 

30. The solicitor for the First Respondent addressed the issues raised by the Applicant in oral submissions.  I have considered whether any of the matters raised by the Applicant are indicative of jurisdictional error.

31. The Applicant took particular issue with the Tribunal’s reliance on inconsistencies between his evidence and the evidence given by his brother in support of his brother’s successful protection visa application.  As indicated, he reiterated or endeavoured to provide further explanations for such inconsistencies.  However it was open to the Tribunal to have regard to such inconsistencies in considering the credibility of the Applicant’s claims.  It was not bound to accept such claims, notwithstanding that the brother had been granted a protection visa (whether by a delegate or an earlier Tribunal decision or, indeed, by an independent merits reviewer).  The Tribunal was not bound by such earlier factual findings in considering the separate applications of the Applicants before it in this case. 

32. It is the case that the Tribunal had regard to the brother’s file and the evidence and statements given by him. However, it put to the Applicant such information that, subject to the Applicant’s comments, would be the reason or part of the reason for affirming the decision under review in accordance with s.424AA of the Act. There is nothing in the material before the Court to indicate that there was any other information on the brother’s file that constituted information within s.424A(1) of the Act that should have been put to the Applicant.

33. It is apparent from the Tribunal’s account of what occurred in the hearing that it explained the relevance of such information, invited the Applicant to comment or respond, and advised him he may seek additional time.  He did not seek additional time although the Tribunal in fact received a further response from the Applicant’s advisor after the hearing, as well as the response the Applicant gave at the hearing.  It considered the explanations provided by the Applicant and his advisor. 

34. Moreover in addition to raising issues in relation to inconsistencies with the Applicant’s brother’s evidence at the hearing, the Tribunal also raised dispositive issues (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63) It made clear to the Applicant that his credibility was in issue. It expressed concern about the vagueness in the Applicant’s evidence about his brother’s family and the need to provide details and, as indicated, it raised inconsistencies between his evidence and that of his brother with him. It addressed such matters in its findings and reasons.

1. I have considered whether the Tribunal’s approach, either to the inconsistencies between the Applicant’s evidence and that of his brother or more generally, demonstrates irrationality or illogicality such as to give rise to jurisdictional error in the sense considered by the High Court in the Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 as explained by the Full Court of the Federal Court in SZOOR v Minister for Immigration and Citizenship and Another (2012) 202 FCR 1; [2012] FCAFC 58.

2. As Crennan and Bell JJ stated in SZMDS at [130]:

   In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65 is one at which no rational or logical decision-maker could arrive on the same evidence. 

3. Their Honours went on to elaborate, suggesting that “not every lapse of logic [would] give rise to jurisdictional error” and that “a court should be slow, although not unwilling, to interfere in an appropriate case” (at [130]).  Their Honours pointed out at [131] that if probative evidence could give rise to different processes of reasoning, then logical or rational or reasonable minds might differ in respect of the conclusions to be drawn and that “a decision [could] not be said to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion” (also see the remarks of Rares J in SZOOR at [15], referring to the limited scope for a finding of jurisdictional error based on irrationality or illogicality).

4. Relevant to the concerns the Applicant expressed about the accuracy of the Tribunal’s views, while minds may differ about the conclusions the Tribunal reached, this is not a situation in which only one conclusion was open on the evidence to which the Tribunal did not come.  Nor can it be said that the decision was not open on the evidence or that there was no logical connection between the evidence and the inferences or conclusions drawn by the Tribunal.  The fact that there was an earlier decision favourable to the Applicant’s brother does not render the Tribunal decision unreasonable, given that the Tribunal is not bound by factual conclusions reached by an earlier decision-maker in relation to a different applicant.  The Tribunal had before it additional information not before the earlier decision-maker (in particular the inconsistent accounts of the brothers) and it addressed the explanations provided for such inconsistencies. 

5. It has not been established that it was unreasonable in the sense considered by the High Court in SZMDS for the Tribunal to rely on such inconsistencies in finding that the Applicant’s claims were not credible. 

6. Insofar as the Applicant took issue with the Tribunal’s findings in relation to the ease of departing Iran through the airport and whether the people smuggler accompanied him, again the Tribunal’s findings in that respect were open to it on the material before it for the reasons which it gave.  The Applicant’s disagreement with the Tribunal’s findings, and, with independent country information in relation to the situation at the Imam Khomeini Airport does not establish jurisdictional error.  The selection and weight to be given to items of independent country information is a matter for the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10).

7. The Applicant also took issue with what he said was reference by the second judge (which I took to be a reference to the Tribunal) to the evidence of his wife about departure from Iran, on the basis that his wife did not give evidence at the Tribunal hearing. As the Applicant claims, the Tribunal’s account of the Tribunal hearing does not suggest that the Applicant wife gave any evidence at the hearing. In any event, there is nothing in the Tribunal’s findings and reasons referring to evidence of the Applicant wife in relation to departure from the airport. The Applicant was not able to point to any such findings and reasons or discussion in the Tribunal reasons for decision. It may be that he is confusing the Tribunal’s decision with the delegate’s decision. The decision under review in this case is the decision of the Tribunal. Insofar as the Tribunal referred to the wife’s evidence about her family’s attitude to her marriage, this was a reference to the claims she made in her written statement of 11 October 2012, not to any oral evidence. This is apparent from that statement and from the s.424A letter.

8. The Applicant also sought to provide further explanations about seeking or obtaining documentation from the authorities.  He seeks impermissible merits review in this respect.  Similarly, his explanation to the Court for why he could not recall the names of the members of his brother’s wife’s family does not establish jurisdictional error.  It was open to the Tribunal to have regard to the Applicant’s lack of knowledge in this respect.  Insofar as the Applicant claimed that he was unable to remember the names at the Tribunal hearing because he was under stress, there is nothing in the Tribunal’s account of the hearing to indicate that the Applicant gave such an explanation for his inability to remember names.  Nor is there anything to suggest that the Applicant raised such a concern, or that anything that occurred in the Tribunal hearing was such as to raise doubt about the Applicant’s fitness to participate in the hearing.  In any event, no evidence in that respect has been put before the Court. 

9. I note for the sake of completeness that the Tribunal put the wife’s written claims to the Applicant under s.424A. While the initial s.424A letter dated 4 March 2013 appears to have been based on a template from an unrelated matter and referred to claims irrelevant to those of the Applicant, the Tribunal sent a fresh s.424A letter to the Applicants on 5 March 2013 advising them to disregard the letter dated 4 March 2013 sent to them in error and stating that the letter of 5 March was the correct and relevant letter for their response.

10. There is nothing in the material before the Court to suggest that the Tribunal failed to comply with its obligations under s.424A in relation to this information. As indicated, the advisor responded and the response was taken into account by the Tribunal.

11. The Applicant took issue with the Tribunal’s findings that the three of them were Iranian citizens and raised with the Court what might be seen as humanitarian issues about the circumstances of their departure from Iran, travel to Australia and their circumstances in Iran.  The proceedings in this Court are not an opportunity for a rehearing of the Applicants’ claims to be refugees.  The Tribunal’s credibility findings were open to it for the reasons which it gave on the material before it, even if a different decision-maker might not have reached the same conclusion.  The Applicant’s disagreement with the Tribunal’s conclusions in this respect, or indeed in other respects, does not establish jurisdictional error.  The humanitarian issues that the Applicant raises are not matters that can be taken into account by the Court in proceedings of this nature.  Insofar as he raised such issues, or suggested or appeared to suggest at the start of the hearing that he may have claims to protection on some other basis, these may be matters he could raise with the Minister, but they do not establish jurisdictional error on the part of the Tribunal.  The Applicant did not suggest and nor is it apparent that the Tribunal had failed to consider any integers of the claims that he and his family in fact made. 

12. In submissions in reply the Applicant again endeavoured to provide explanations for inconsistencies in the evidence and took issue with the Tribunal’s approach to matters of concern in its reason for decision.  The concerns raised by the Applicant seek impermissible merits review. 

13. No jurisdictional error has been established on any of the bases apparently contended for or arising out of the submissions made by the Applicant.  Accordingly the application must be dismissed.

    RECORDED  :  NOT TRANSCRIBED

14. The Applicant told the Court that he had no money.  However the Applicant’s lack of funds is not a sufficient reason to depart from the normal principle that an unsuccessful Applicant should meet the costs of the First Respondent.  He also again sought to raise with the Court concerns about the truth of his claims.  As I have explained, merits review and the truth of the Applicant’s claims are not matters to be determined in proceedings of this nature.  The adult Applicants should pay the costs of the First Respondent.  The amount sought is reasonable and appropriate in light of the nature of this and other similar matters. 

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  10 October 2013