ABW19 v Minister for Home Affairs

[2019] FCCA 2559

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABW19 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2559

Catchwords:
MIGRATION – Application for safe haven enterprise visa – adverse credibility findings – vague and disjointed responses by applicant – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5A(1), 36(2), 46A(2), 473CB, 477(1)

Cases cited:

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

WZATH v Minister for Immigration for Border Protection [2014] FCA 969
SZNXA v Minister for Immigration and Citizenship [2010] FCA 775
Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429
CED15 v Minister for Immigration and Border Protection [2018] FCA 451
Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611
Minister for Immigration and Citizenship v Li [2013] 249 CLR 332

Applicant: ABW19

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 22 of 2019

Judgment of: Judge Egan

Hearing date: 4 September 2019

Date of Last Submission: 4 September 2019

Delivered at: Brisbane

Delivered on: 4 September 2019

REPRESENTATION

Applicant: In person

Solicitors for the First Respondent: Mr. D. McLaren of MinterEllison

Solicitors for the First Respondent: Submitting Appearance

ORDERS

1. An extension of time be granted to the Applicant for the filing of the originating application for review filed on 7 January 2019.

2. The application for review filed on 7 January 2019 be dismissed.

3. The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 22 of 2019

ABW19

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Iran who arrived in Australia on 20 May 2013 as an unauthorised maritime arrival. 

2. The Minister exercised his discretion pursuant to the provisions of section 46A(2) of the Migration Act 1958 (Cth) (the Act) to allow the applicant to make a valid application for a safe haven enterprise visa, or a temporary protection visa.

3. The applicant made an application for a safe haven enterprise visa (SHEV) which was received by the Minister on 4 July 2017.

4. On 8 October 2018, a delegate of the Minister refused to grant to the applicant a safe haven enterprise visa. The delegate’s decision was a fast track reviewable decision and was accordingly referred by the Minister to the Immigration Assessment Authority (the IAA) for review.

5. On 7 November 2018 the IAA affirmed the decision under review. On 7 January 2019 the applicant filed an originating application seeking, firstly, an extension of time within which to apply for judicial review, and secondly, seeking review pursuant to one ground of review. That ground was stated as follows:

   (1)     The Immigration Assessment Authority and the delegate of the Minister for Home Affairs erred in law in making his decision.

Extension of time

1. It was submitted on behalf of the first respondent that, in the interests of justice, the court ought not order that time be extended in this matter pursuant to the provisions of section 477(1) of the Act.

2. The application for review was filed some 25 days late. Mr McLaren, who appears on behalf of the first respondent, can point to no prejudice by reason of the late filing of the originating application.

3. The applicant is a self-represented litigant. He appears today with the assistance of an interpreter proficient in the Farsi and English languages. He has filed no written submissions or had any written submissions filed on his behalf. In circumstances where a self-represented litigant with obvious minimal command of the English language appears, it is only fair that a short period of delay in the filing of an originating application, in circumstances where no prejudice results to the first respondent, should not, at the outset, shut out the applicant from having his application heard. In those circumstances, the application for extension of time sought by the applicant is granted.

Substantive application

1. At [2] of its reasons the IAA noted that the delegate, when refusing to grant the applicant a SHEV, nevertheless accepted that the applicant experienced low level harassment for having tattoos in Iran. The delegate also accepted that the applicant attended university in Iran, was attacked by two individuals, and that he could be considered a non-practising Muslim and failed asylum seeker if returned to Iran. It was not accepted by the delegate, however, that the applicant had been arrested for having tattoos, that the applicant had a criminal record in Iran, that the applicant was forced to quit his studies at university as claimed by him, or otherwise, that the applicant was a person in respect of whom Australia owed protection obligations.

2. At [3] of its reasons, it was recorded that the authority had had regard to the material provided to it by the secretary pursuant to the provisions of section 473CB of the Act.

3. The applicant’s claims for protection were set out in [5] of the reasons of the authority, and were as follows:

   ·    He is a Shia Muslim who does not pray. He does not believe people should be punished for changing their religion. He believes in god but not in religion.

   ·    He has tattoos on his body. He obtained some of these in Tehran nine or ten years ago, for no specific reason. He obtained further tattoos, one on each hand, in Australia.

   ·    The Iranian authorities harassed and beat him because of his tattoos and because one of his tattoos resembles a cross which they believed to be symbolic of Christianity.

   ·    He was arrested a few times and held for reason of his tattoos and has a record with the authorities.

   ·    In around late 2012, he was exchanging notes with a friend during a university lecture, relating to the upcoming election. The university professor took the paper and took the applicant to the Disciplinary Committee. He was accused of planning a riot and intimidated into leaving the university voluntarily.

   ·    He was returning home from work one night, and walking through a park, when he was involved in a security incident with two men. It led to a scuffle, and the men cut his jaw with a piece of glass.

   ·    He fears from the Iranian authorities on the basis of his political opinion, because he is a person with tattoos who will be perceived to be against Islam and because he has sought asylum in Australia and this would be added to his list of previous crimes on return.

4. At [8] - [16] of its reasons, the authority dealt with the claims of the applicant that he feared harm in Iran by reason of the existence of his tattoos. The applicant was recorded as having three tattoos – one on each upper arm and one on his left shoulder.

5. At [9] of its reasons, the authority recorded that the applicant feared harm if returned to Iran because of issues experienced by him at university, as well as because of the existence of tattoos, which he suggested would give rise to his arrest if discovered by the authorities.

6. At [10] of its reasons, the authority recorded that the applicant had never been arrested or detained by the police or any other security organisation. It was also recorded that these statements to the departmental officer to the effect that he had never been arrested or detained because of his tattoos contradicted the applicant’s latest statements to the effect that he had been arrested, detained and held in a watch house a few times due to his tattoos.

7. At [11] of its reasons, the authority recorded that, at the protection visa interview, the applicant was unable to recall any information concerning circumstances surrounding his first claimed encounter with police in Iran relating to his tattoos. It was noted that the applicant was unable to recall fundamental details about the reason for his first police encounter in that regard. It was recorded by the authority that it found the applicant to be generally vague when describing his stated police encounters arising as a result of his allegedly having tattoos. It was also recorded that the applicant was unable to provide any convincing specific details about the claimed incidents which he had with police allegedly involving tattoos. 

8. At [12] of its reasons, the authority noted that there had been substantial discrepancies in responses given by the applicant concerning the timing of alleged incidents surrounding his tattoo issue, the authority noting that it did not accept so the applicant’s explanation of events as given by the applicant.

9. AT [13] of its reasons, it was recorded by the authority that, though the applicant stated that it was because he was suffering from stress at the time of his entry interview as a result of the ordeals of his sea journey that he had stated that he was never arrested, that contrasted with the applicant having nevertheless provided many details at such entry interview about his alleged university incident. It was further noted by the authority that though the applicant had arrived in Australia in late May 2013, the entry interview had been conducted more than one month later on 2 July 2013.

10. At [14] of its reasons, the authority did not accept that the applicant faced police arrest, or any form of detention, by reason of his tattoos, though the authority did note that country information suggested that some individuals with tattoos could face low level harassment because of them.

11. At [15] of its reasons, the authority noted that the applicant had obtained two further tattoos in Australia, one on each hand.

12. At [16] of its reasons, the authority had doubts as to why the applicant would have had extra tattoos applied to his hands, an obvious area of high visibility.  That was particularly so in circumstances where, at the protection visa interview, the applicant had reiterated that he had known of the consequences in Iran of his having tattoos. It was found, in those circumstances, that the applicant had obtained the last two tattoos on his hands for the purpose of enhancing his claims for protection.

13. The authority was entitled to find, as it did at [29] of its reasons, that DFAT country information suggested that it was unlikely for the Iranian authorities to maintain interest in an individual who had come to their attention for having a tattoo unless the tattoo evidenced another crime.

14. At [30] of its reasons, the authority did not accept that the applicant had any existing or separate profile with the Iranian authorities, and though the authority accepted that the applicant may face low level harassment in Iran by reason of his tattoos, it was not satisfied that low level harassment which might be experienced by the applicant - in the nature of a warning or a fine - met the threshold of serious harm. The authority was not satisfied that the applicant faced a real chance of serious harm on that basis. The finding so made by the authority was a finding of fact which it was entitled in all of the circumstances to make.

15. At [17] – [20] inclusive of its reasons, the authority carefully analysed the applicant’s claims relating to his assertion that he was forced to leave the AZAD university following an exchange of politically sensitive paper notes with a university friend during a lecture. The alleged transgression on the part of the applicant, as asserted by him, was that he had written on a piece of paper handed to a friend that the candidate at elections who the applicant had voted for at a previous election had done nothing for him, and that such candidate was not suitable. It was recorded that at the protection visa interview the applicant was unable to be specific about what he had allegedly written on the piece of paper handed to his friend, notwithstanding that he had been asked on three occasions to give such information.

16. It was recorded that the vague answers provided to the interviewing officer at the protection visa interview were similar to the applicant’s having omitted reference to alleged arrest details relating to his alleged persecution for having tattoos. It was noted by the authority that it was not satisfied that the applicant’s difficulty recollecting the contents of the paper notes related to his memory, the inference being that the applicant had concocted the story about such incident.

17. At [18] of its reasons, the authority considered it implausible that the applicant had been asked to leave the university for the alleged exchange of information with his friend in circumstances where, as the applicant alleged, the applicant’s friend was more politically active than the applicant, but where such friend was allowed to stay at university on the giving of an undertaking by him not to participate in similar activity and, further, notwithstanding that such friend was said by the applicant to be a student activist.

18. At [19] of its reasons, it was noted that the applicant was not a member of any political or cultural group at the university, although he said that he would think about and discuss issues with others at such university. When asked about the contents of those discussions, it was recorded that the applicant’s response was vague. It was also noted that the applicant had not provided any credible evidence that he had a profile at the university that would plausibly explain why he would be required to leave the university after what was said to be a minor incident.

19. At [20] of its reasons, the authority found that the university incident as alleged by the applicant did not take place. The applicant made claims which were not accepted by the authority. The authority was entitled to form an adverse view as to the applicant’s credibility based upon his vague and conflicting answers.

20. At [21]-[23] inclusive of its reasons, the authority dealt with what was referred to as a “security incident” which related to the applicant asserting that two men had ambushed him one night when he was walking through a park when returning home from work. The applicant had alleged that the two men had cut his jaw with a piece of glass. The authority at [22] of its reasons referred to a later version of events where the applicant said that he had been knifed rather than glassed. Though the authority was prepared to accept that the applicant had been the subject of some attack, it was not prepared to accept that the applicant had lodged a police complaint which led to his being subsequently detained for having tattoos after his records had been searched, or otherwise that the applicant had been targeted by reason of his having tattoos.

21. The authority again did not find the applicant’s story to be credible. In all of the circumstances, the authority was entitled to so find.

22. At [31] of its reasons, the authority referred to DFAT country information which suggested that Iran had a relatively low rate of violent crime. The authority found that it was satisfied that any incident which had occurred whereby the applicant may have been attacked was not indicative of the applicant having a real chance of suffering similar harm in the future, or evidence of likely future persecution should he be returned to Iran.

23. At [24] of its reasons, the authority noted that the applicant might be considered as a failed asylum seeker by the Iranian government if returned to Iran, but the authority did not accept that the applicant had any list of existing criminal records with the Iranian authorities such that upon return he may be incarcerated.

24. At [25] of its reasons, it was noted that at the protection visa interview, when asked by a delegate whether he considered himself to be a practising Muslim, the applicant had responded “not necessarily”. That contrasted with the applicant’s response at his entry interview, and in his statutory declaration, wherein he said that he did not pray and did not believe that people should be punished for changing their religion. The authority found that based on the applicant’s statements to date, it did not accept that the applicant had entirely abandoned the Shia Muslim faith, or would be seen as having done so on his return to Iran, though it was accepted by the authority that the applicant would be considered to be a non-practising Muslim on return. In that regard, country information suggested that a large number of young people in Iran were increasingly disinterested in religion, particularly Shia Islam, as so found at [32] of its reasons. The authority found that it was unlikely that the beliefs of a person such as the applicant would come to the attention of authorities.

25. At [33] of its reasons, the authority found that based on the applicant’s individual and personal circumstances, as well as country information, it did not accept that the applicant faced a real chance of coming to the adverse attention of the Iranian authorities if returned to Iran, either by reason of his failure to practice Islam or due to his tattoos.

26. At [35] of its reasons, the authority found that Iranian authorities would usually question a voluntary returnee only if the individual had already come to the official attention of the government such as by committing a crime in Iran before departing. Country information was recorded as suggesting that Iranian authorities paid little attention to failed asylum seekers who returned to Iran. It was recorded that the Iranian authorities had little interest in prosecuting failed asylum seekers for activities engaged in abroad, including activities relating to protection claims.  Even if questioned upon return, it was found that the majority of persons questioned would be released after an hour or two.

27. At [36] of its reasons, the authority found that the applicant would not have an elevated profile on his return to Iran such that he would face a real chance of any Iranian authority doing anything more than involving itself in routine questioning of the applicant upon return. The authority was not satisfied that any routine questioning would meet the threshold of serious harm.

28. At [37] of its reasons, the authority found that the applicant did not meet the requirements for the definition of a refugee under the provisions of section 5A(1) of the Act, nor that the applicant satisfied the protection criteria as set out in section 36(2)(a) of the Act.

29. At [38]-[42] inclusive of its reasons, the authority appropriately dealt with the relevant criteria for the finding that Australia owed complementary protection obligations to someone such as the applicant. Having analysed all of the relevant circumstances of the applicant’s case, the authority found that there was not a real chance that the applicant would be harmed on return to Iran, or that he would suffer a real risk of significant harm if returned to Iran. It found that the applicant did not meet the relevant section 36(2)(aa) complimentary criteria.

30. On the question of the adequacy of the grounds for review, there is a basis for finding that the ground was so vague and un-particularised such that that alone ought to warrant a dismissal of the application simpliciter. There is authority for such proposition, but the matter was not pressed by the first respondent. [1]

    [1]        WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] per

31. In any event, the authority appropriately dealt with each of the applicant’s claims in a careful and considered way. It did not accept that the applicant’s claims were credible.

32. It cannot be said that the authority, when analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429 at [25]-[27] where it was said:

    [25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

    [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

    [27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.

1. The conclusions reached by the authority were open to it on the evidence before it. As Thawley J said at [21]-[24] inclusive in CED15 v Minister for Immigration and Border Protection [2018] FCA 451:

   [21] In his written submissions, the appellant was more specific.  The complaint centred on paragraphs [69] and [70] of the Tribunal’s reasons, which provided:

   69.    The applicant has consistently claimed that a Tamil family of four in his neighbourhood was killed and has provided a TamilNet news article referring to the murders, which took place in November 2008. The tribunal accepts that a family in the applicant’s neighbourhood was murdered at that time, along with Tamils in other villages.

   70.    However, in his evidence to the department, the applicant merely claimed that the family were his neighbours and acquaintances. At the hearing the applicant claimed for the first time that the head of the family, Vinayakamoorthy, was his cousin. He claimed that he had previously mentioned this while he was “at the camp” however this significant detail is not mentioned in either his written statement or in the decision record summary of his evidence at departmental interview. The tribunal does not accept that, if this was true, the applicant would have failed to mention a familial relationship with the deceased Tamil family in either his written statement or at his departmental interview. Given the concerns the tribunal holds about the applicant’s credibility and his failure to mention his relationship with the Tamil family at key times during the processing of his application, the tribunal does not accept that the applicant previously mentioned that Vinayakamoorthy was his cousin while he was “at the camp”.

   [22] The appellant submitted that the “later” evidence, given for the first time to the Tribunal, that the man killed by the army in 2008 was the appellant’s cousin was a detail of less importance than the horrific murder of the family and the appellant’s fear of the army because of his being a witness.

   [23] It is not demonstrated that the Tribunal committed any jurisdictional error in reaching its conclusions in paragraphs [69] to [70].  The conclusions which the Tribunal reached were open on the evidence before it.  Specifically, it was open to the Tribunal to conclude that the appellant would have mentioned earlier than he did that the head of the deceased family was his cousin if it were true.  Reasoning which takes into account the time at which claims were, or were not, made is entirely orthodox. 

   [24] The fact that a different decision-maker may have reached a different conclusion on the evidence which was before it is not of itself a basis for concluding that there was jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].

2. Further, it cannot be said that no other rational or logical decision-maker could not have made the same decision as the authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611 at [130]:

   [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.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.  The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error.  A court should be slow, although not unwilling, to interfere in an appropriate case.

3. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 at [66] and [76] where it was said:

   [66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

4. The applicant seeks a merits review of factual findings made on the part of the authority, something which this court is not permitted to do.

5. The applicant has not demonstrated jurisdictional error on the part of the authority. The application is without merit and is dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate: 

Date:  11 September 2019

         Gilmour J citing WZATH v Minister for Immigration for Border Protection [2014] FCA 969;
         SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 at [21], per Reeves J.