Aka16 v Minister for Immigration

[2018] FCCA 578

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKA16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 578

Catchwords:
MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether the Immigration Assessment Authority properly characterised a claim made by the applicant – whether the Immigration Assessment Authority erred in its application of the “real chance” test – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.473GB , 474, 476

Cases Cited:

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1
Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305
Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176

Applicant: AKA16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1389 of 2016

Judgment of: Judge Emmett

Hearing date: 14 March 2018

Date of Last Submission: 14 March 2018

Delivered at: Sydney

Delivered on: 22 March 2018

REPRESENTATION

Counsel for the Applicant: Mr Radha Nair

Solicitors for the Respondents: Mr Tom Galvin
Minter Ellison Lawyers

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 1389 of 2016

AKA16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority dated 3 May 2016 (“the Authority”), affirming a decision by a delegate of the first respondent (“the Delegate”) not to grant the applicant a Temporary Protection (Subclass 785) visa.

2. A summary of the factual background and a summary of the Authority’s decision are relevantly summarised in the first respondent’s written submissions as follows:

   “B FACTUAL BACKGROUND

   4. The applicant is a citizen of Iran, who arrived in Australia on 13 October 2012 and is an unauthorised maritime arrival.  The applicant applied for a TPV on 29 June 2015 (Court Book (CB) 1–75).  In respect of his TPV application, the applicant claimed to fear harm in Iran because of his political and religious views, as he claimed to be a non-practising Muslim who was opposed to the Iranian regime. In support of those claims, the applicant recounted the following events:

   (a) in 2003, he found his former wife having an affair with a member of the Basij which resulted in him being threatened and forced to get a divorce;

   (b) after that incident, he was stopped at checkpoints 40–50 times where he was often held, his property was seized and he was forced to pay bribes;

   (c) in 2006, he was involved in a peaceful protest against joining the Basij, and he was sacked after the presidential elections and for refusing to join the Basij;

   (d) on three occasions between 2009–2011 he was caught with his new girlfriend, detained, assaulted, verbally abused and force to pay bribes;

   (e) in June 2015, his girlfriend was sacked because of their relationship; and

   (f) after his departure, his brother received phone calls asking after him.

   5. On 22 December 2015, a delegate of the first respondent (the delegate) refused to grant the applicant a TPV (CB119–141). The delegate's decision was a fast track reviewable decision and was referred by the first respondent to the IAA for review on 23 December 2015 (CB143).

   6. The IAA affirmed the delegate's decision on 29 January 2016 (CB158–172).

   7. The applicant subsequently applied for judicial review of the IAA's decision by the Federal Circuit Court.  On 4 April 2016, the Federal Circuit Court made orders (by consent) remitting the matter to the IAA for redetermination according to law (SYG387/2016) (CB173–174).

   8. On 3 May 2016, the IAA again affirmed the delegate's decision (CB188–202).

   C  THE IAA'S DECISION

   9. The IAA had regard to the review material and no new information was obtained or received (at [3]).

   10. The IAA rejected the applicant's protection claims on the basis of adverse credibility findings and because the applicant's experiences would not amount to serious or significant harm in the future.  The IAA made the following key findings:

   (a) while the three incidents from 2009–2011 occurred (at [12]), the possibility that he would face future harm in Iran on account of his relationship was 'speculative' because none of the incidents occurred in his home area of Tehran, his girlfriend is now living and working in the United Arab Emirates, and he stated that he intends to marry her and that he and her family have made plans in this regard (at [17]);

   (b) his former wife did not have an affair with a member of the Basij and he was not subsequently stopped at checkpoints nor otherwise targeted given these claims were not raised at the entry interview (at [15]);

   (c) he only experienced one incident on account of his 'dress standards' (at [16]); 

   (d) he did not face a real chance of harm on account of his refusal to join the Basij and protesting his sacking, because he was able to find other employment and there had been no other incidents (at [18]);

   (e) he did not have a profile that would expose him to harm as a failed asylum seeker and it was 'not plausible' that his girlfriend would have been sacked because of their relationship (at [19]);

   (f) in light of country information and the applicant's own claims, the applicant would not be harmed as a result of being a non-practising Muslim (at [20]); and

   (g) while the applicant may be opposed to the Iranian regime he would not face harm for that reason given his profile (at [21]–[22]).

   11. For these reasons, the IAA found that the applicant did not satisfy the definition of 'refugee' in subsection 5H(1) of the Act, and, therefore, did not satisfy the refugee criterion (at [23]–[24]). For the same reasons, the IAA concluded that the applicant failed to satisfy the complementary protection criterion in paragraph 36(2)(aa) of the Act (at [27]–[28]).”

The proceeding before this Court

1. The applicant was represented throughout his proceeding before this Court by Mr Radha Nair, of counsel.

2. At the outset of the hearing, Mr Nair confirmed that the applicant relied on Ground 1 only of his initiating application filed on 1 June 2016. Mr Nair withdrew any reliance on Ground 2 on behalf of the applicant.

3. Ground 1 is as follows:

   “1. The Immigration Assessment Authority (“IAA”) misconstrued and misapplied the law in that it failed to apply the relevant test in purporting to determine if the applicant was owed protection as a refugee and/or complementary protection.

   i) The IAA accepted that being subjected to physical punishment because of the way the applicant choose to dress was “a denial of the most basic human rights”.

   ii) The IAA accepted that at least on one occasion in 2011 the applicant had been “slapped and briefly detained” by relevant Iranian authorities because of the way the applicant dressed. It cannot be said that the applicant's claim of a well-founded fear of persecution is not “real” in that it is illusory. It is clear that the IAA's finding (notwithstanding it found that the applicant had been persecuted for the way he dresses on at least one occasion) that there was not a “real chance” that the applicant would upon return to Iran be banned by the Iranian authorities for this reason arises from a misconstruction and misapplication of the “real chance (“Chan”) test.”

   (Errors in original)

4. Despite directions being made on 19 July 2016, for the applicant to file and serve submissions 14 days before the hearing, Mr Nair filed his submissions only 6 days before the hearing and after the first respondent had filed his submissions. The first respondent’s submissions addressed both Ground 1 and Ground 2 of the initiating application. It was not until receipt of the applicant’s submissions that the first respondent was informed that Ground 2 was no longer being pressed.

Ground 1(i)

1. The complaints in Ground 1(i) arise from the following passage at paragraph 16 of the Authority’s decision record, as follows:

   “16. The applicant claims to fear harm because of a denial of the most basic human rights, having been subjected to physical punishment because of the way he chooses to dress and his relationship with his fiancée. I note, however, that the way the applicant chooses to dress has resulted in an adverse response from members of the Iranian authorities on only one occasion: the 2011 incident when he was slapped and briefly detained by Basij in northern Iran's Sisangan Jungle. The applicant's dress standards have otherwise not resulted in attention from the Iranian authorities. On the evidence, 1 am not satisfied that there is a real chance that the applicant would, upon return to Iran, be harmed by the Iranian authorities for reason of the way he chooses to dress.”

   (Emphasis added)

2. Ground 1(i) asserts that the Authority accepted that being subjected to physical punishment because of the way the applicant chose to dress was “a denial of the most basic human rights.” However, a fair reading of the Authority’s decision record makes clear that the Authority was doing no more than summarising the applicant’s claim in terms expressed by the applicant.

3. Such a reading of the Authority’s statement is borne out when one considers the content of the applicant’s statutory declaration made on 24 June 2015, in support of his temporary protection visa application. In that statement, the applicant stated as follows:

   “My fear of harm related to my total lack of faith in Islam, denial of most basic human rights, having been subjected to physical punishment because of the way I chose to dress, my relationship with my fiancée…”

   (Emphasis added)

4. The Authority clearly identifies those matters as claims made by the applicant. I do not accept that they were findings made by the Authority. Indeed, the Authority noted that of the three confrontations with Iranian authorities in 2009, 2010 and 2011, it was only the 2011 incident where the applicant’s choice of dress resulted in an adverse response. Nowhere does the Authority find that the applicant was denied a basic human right because of his choice of dress.

5. The Authority referred to the applicant’s 2015 statutory declaration and noted that the applicant had stated at the 2012 entry interview that he was beaten up at the beach on three separate occasions for wearing short pants. The Authority then noted that the 2015 statutory declaration provided detailed accounts of three confrontations with the Iranian authorities in the north of Iran said to have taken place in mid-2009 in a restaurant in the Salmanshahr; in June 2010 at Abbasabad beach; and, in June 2011 at Sisangan Jungle. The focus of all three confrontations was said to be the applicant being in public with his now fiancée, Ms F.

6. The Authority further noted that in the applicant’s 2015 statutory declaration, only the 2011 incident referred to what the applicant was wearing and stated that the Basij approached to question him about his attire, after which his relationship with Ms F became the focus of the confrontation.

7. The Authority also noted that at his 2015 protection visa interview, the applicant was asked if he had ever been arrested. The applicant referred in response to the 2009, 2010 and 2011 incidents and no others. The Authority noted that on all three occasions the applicant claimed that the reason he was arrested was that he was in the company of Ms F. The applicant made no mention of his clothes being a factor.

8. The applicant’s contention in Ground 1(i) misstates the Authority’s summary of the applicant’s claim as a finding made by the Authority of a “denial of most basic human rights”. As stated above, the Authority made no such finding.

9. Accordingly, Ground 1(i) does not disclose any jurisdictional error on the part of the Authority.

Ground 1(ii)

1. At the heart of the applicant’s complaints in Ground 1(ii), is a contention that the Authority misapplied the “real chance” test by impermissibly using a mathematical test in considering whether the applicant was owed protection as a refugee. I understood the reference to a “mathematical test” to involve assessing the risk by reference to a percentage. Mr Nair appeared to submit that because the Authority accepted in one of the three incidents that the way the applicant chose to dress resulted in an adverse reaction from Iranian authorities, the Authority was assessing the risk as 33%. A fair reading of the Authority’s decision record makes clear that it applied no such mathematical assessment in considering whether there was a real chance of harm to the applicant if returned to Iran.

2. The applicant correctly identified the “real chance” test as that set out in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (“Chan’s case”). In written submissions, the applicant correctly enunciated the “real chance” test as follows:

   “5. The correct test is the “Chan” test – which requires the IAA to determine if there is a “real chance” that the applicant’s claims of persecution is well founded.

   6. In Minister for Immigration and Citizenship v SZQRB [2103] FCAFC 33; (2013) 210 FCR 505 their Honours Lander and Gordon JJ at [242], inter alia, stated:

   The question of ‘real chance’ is, of course the test to be applied on an application for a protection visa under s.36(2)(a) when considering whether the applicant has a well-founded fear that the applicant will face persecution for a convention reason if returned to the applicant’s country of nationality: Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379; 87 ALR 412 per McHugh J at CLR 429; ALR 448-9 and Mason CJ at CLR 389; ALR 418; Dawson J at CLR 398; ALR 424-5 and Toohey J at CLR 407; ALR 431-2.

   7. In Chan, his Honour McHugh J said at 429:

   The decisions in Sivakumaran and Cardoza-Fonseca also establish that a fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. As the U.S. Supreme Court pointed out in Cardoza-Fonseca an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a far-fetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his fear should be characterised as “well-founded” for the purpose of the Convention and Protocol.

   8. In Minister for Immigration and Ethnic v Guo & Anor (1997) 191 CLR 559 at 572 their Honours Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow stated:

   Chan is an important decision of this Court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 %.

   A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. (emphasis added)”

   (Errors in original)

3. Despite slight inconsistencies, the Authority accepted that the applicant had been arrested on three occasions in the north of Iran in 2009, 2010 and 2011 and that in all three confrontations the main issue was that the applicant was in public with Ms F.

4. The Authority did not accept that the applicant’s attire was an issue in either the 2009 or 2010 incidents. The Authority accepted that in all three incidents, the applicant was briefly detained and released after payment of a bribe and was slapped in the face and verbally abused in front of Ms F. The Authority also accepted that the applicant was beaten in the 2009 incident.

5. The Authority found that the applicant’s choice of dress had resulted in an adverse response on only one occasion, namely 2011. The Authority found that the applicant’s dress had not otherwise resulted in attention from the Iranian authorities, although the Authority accepted the applicant’s dress was a factor in that incident. The Authority found that what the applicant was wearing in 2011 caused the Basij to approach and question him about his attire, but thereafter “his relationship with Ms F became the focus of the confrontation.” The Authority found, on the evidence before it, that it was not satisfied that there was a real chance of harm by the Iranian authorities, if returned to Iran, by reason of the applicant’s dress choice.

6. In the circumstances, the Authority’s finding that there was not a real chance of harm by the Iranian authorities, if returned to Iran, by reason of the applicant’s dress choice was open to it on the material and evidence before it and for the reasons it gave.

7. As stated above, the Authority accepted that the applicant being in public with Ms F, to whom he was not married, resulted in three confrontations with the Iranian authorities in 2009, 2010 and 2011.

8. In considering whether, if returned to Iran, there was a real chance of harm to the applicant because of his relationship with Ms F, the Authority found that the three incidents occurred in the north of Iran, as claimed by the applicant, and that he had not experienced harm of this kind in his home area of Tehran. The Authority also accepted that Ms F is currently not living in Iran. Rather, she is living and working in the United Arab Emirates. The Authority also accepted that the applicant intends to marry Ms F and that plans are underway with her family in that regard. Those findings led the Authority to conclude that the possibility that the applicant would face future harm in Iran because of his relationship with Ms F was “speculative”.

9. The Authority therefore found that it was not satisfied that if the applicant returned to Iran, he would face a real chance of harm from the Iranian authorities because of his relationship with Ms F. The Authority’s finding that there was not a real chance of harm by the Iranian authorities, if returned to Iran, by reason of the applicant’s relationship with Ms F was also open to it on the material and evidence before it and for the reasons it gave.

10. There is nothing to suggest that the Authority applied a mathematical test and was not aware or misunderstood the principles in assessing the “real chance” as enunciated in Chan’s case, either in its consideration of the applicant’s claim to fear harm because of his dress code or because of his relationship with Ms F. The Authority correctly identified the “real chance” as involving the same standard as “real risk” and referred to Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505, which referred to Chan’s case at [242].

11. The Authority did not misapply or misconstrue the real chance test in the manner contended for by the applicant, or at all.

12. As stated above, the Authority’s findings were open to it on the evidence and materials before it and for the reasons it gave. Those findings were not tainted by any failure to afford procedural fairness, reaching a finding without a logical or probative basis or unreasonableness (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).

13. Otherwise the complaints in Ground 1 are no more than a disagreement with the findings and conclusions of the Tribunal thereby inviting impermissible merits review (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

    “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

1. Accordingly, the complaints in Ground 1(ii) do not disclose any jurisdictional error on the part of the Authority.

Section 474GB Certificate

1. In its role as a model litigant the first respondent raised the existence of a certificate issued pursuant to s.473GB of the Act. The first respondent submitted that the review scheme relevant to the Authority under Part 7AA of the Act is distinct from the schemes under Parts 5 and 7 of the Act such that the reasoning in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1; [2016] FCA 1081 and Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305; [2016] FCAFC 183 does not apply (Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [90]–[101])

2. The first respondent submitted that there was no error by the Authority for not informing the applicant of the existence of the s.473GB certificate and not inviting him to comment on its validity.

3. Mr Nair informed the Court that the applicant had nothing to say about the s.473GB certificate and did not wish to be heard further on the issue. In the circumstances, in my view and with the agreement of the parties, it is not necessary for the Court to determine that issue.

4. In any event, I note that the description of the document the subject of the certificate was as follows, “29651262102 – JAU048 – Identity Assessment Form – 17.09.2015”. It appears to be a document relating to his identity. I note that the applicant claimed to be a citizen of Iran and the Authority accepted that claim.

Conclusion

1. A fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the applicant; and, had regard to all material provided in support.

2. The Authority then made findings based on the evidence and material before it. Those findings of fact were open to the Authority on the evidence and material before it and for the reasons it gave. A fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.

3. There was no error by the Authority in its application of the “real chance” test and no suggestion that it applied an impermissible mathematical calculation in its application of the “real chance” test to the facts it had found.

4. In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

5. The Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.

6. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

7. The proceeding before this Court should be dismissed with costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 22 March 2018