Aka16 v Minister for Immigration and Border Protection

[2018] FCA 1439

FEDERAL COURT OF AUSTRALIA

AKA16 v Minister for Immigration and Border Protection [2018] FCA 1439

Appeal from:	AKA16 v Minister for Immigration & Anor [2018] FCCA 578
File number(s):	NSD 564 of 2018
Judge(s):	LEE J
Date of judgment:	20 August 2018
Catchwords:	MIGRATION – appeal of refusal to grant a temporary protection visa – whether the primary Judge erred in finding that the Authority’s decision did not contain a jurisdictional error
Legislation:	Migration Act 1958 (Cth), ss 5H(1), 36(2)(aa)
Date of hearing:	20 August 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	19
Counsel for the Appellant:	The appellant appeared in person
Counsel for the First Respondent:	Mr L Dennis
Solicitor for the First Respondent:	MinterEllison
Counsel for the Second Respondent:	The second respondent entered a submitting appearance, save as to costs

ORDERS

NSD 564 of 2018

BETWEEN:

AKA16

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:	LEE J
DATE OF ORDER:	20 AUGUST 2018

THE COURT ORDERS THAT:

1.Appeal dismissed with costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
Revised from the transcript

LEE J:

1. This matter has a long history.  In June 2015, the appellant lodged an application for a Temporary Protection (Subclass 785) visa.  A delegate of the first respondent (Delegate) refused to grant the visa in December 2015, and the Delegate’s decision was affirmed by the Immigration Assessment Authority (Authority) in January 2016.

2. In April 2016, following an application for judicial review by the appellant, the Federal Circuit Court remitted the matter to the Authority for reconsideration.  A further decision and reasons were prepared on behalf of the Authority in May 2016, affirming the Delegate’s decision. This led again to a review in the Federal Circuit Court, which was determined in March 2018, unfavourably to the appellant.  A notice of appeal was then filed in April 2018 against the order of the primary Judge.

3. The appellant is an Iranian citizen, who claimed to fear harm in Iran because of his political and religious views.  In broad summary, those claims involved the appellant contending:

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

   (b)after this incident, which, the appellant stressed before me in oral submissions, caused him great anxiety, he was stopped at checkpoints on 40-50 occasions, 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 dismissed after presidential elections for refusing to join that organisation;

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

   (e)in circumstances to which I will return, in June 2015, his girlfriend was sacked because of their relationship; and

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

4. It is unnecessary to detail the second decision of the Authority in any detail.  In short, the Authority rejected the appellant’s protection claims on the basis of adverse credibility findings and because he would not face a risk of serious or significant harm in the future, and a number of dispositive findings were made.

5. First, while the three incidents from 2009 to 2011 were accepted as having occurred, the possibility that the appellant would face future harm in Iran on account of his relationship was “speculative”; this is because none of the incidents occurred in his home area of the capital, Tehran, his girlfriend is now living and working in the United Arab Emirates, and the appellant intends to marry his girlfriend and their families have made plans in this regard. 

6. Secondly, the appellant’s former wife did not have an affair with a member of the Basij, and the appellant was not subsequently stopped at checkpoints or otherwise targeted, given these claims were not raised at the entry interview.

7. Thirdly, the appellant had only experienced one incident where he was the subject of the interest of authorities over his dress standards, and did not face a real chance of harm on account of his refusal to join the Basij and his protest against his dismissal given the appellant was able to find other employment and there were no other incidents.

8. Fourthly, the appellant 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. 

9. Fifthly, in light of country information and the appellant’s own claims, the appellant would not be harmed as a result of being a non-practising Muslim, and while the appellant may be opposed to the Iranian regime, he would not face harm for that reason given the extent of his profile.

10. It was for these reasons the Authority found that the appellant did not satisfy the definition of “refugee” in s 5H(1) of the Migration Act 1958 (Cth) (Act), and hence did not satisfy the refugee criterion and, for essentially the same reasons, the Authority concluded that the appellant failed to satisfy the complementary protection criterion in s 36(2)(aa) of the Act.

11. In the appellant’s initiating application filed on 1 June 2016, the appellant raised two grounds of review.  However, at the outset of the hearing before the primary Judge, counsel then appearing abandoned Ground 2.  Ground 1(i) was a general contention that the Authority had “misconstrued and misapplied the law” and failed to consider the appellant’s claims.  The particulars referred to various factual findings.  Again, in broad summary, her Honour determined that:

    (a)Ground 1(i) did not disclose any jurisdictional error on the part of the Authority (AB 224: [15]) because the Authority did not accept that being subjected to physical punishment because of the way the appellant chose to dress was ‘a denial of the most basic human rights’ (AB 223: [8]). Instead, that was a re-statement of the appellant’s claim (AB 223–224: [10]). Accordingly, Ground 1(i) misstated the Authority’s summary of the appellant’s claim as being a finding (AB 224: [14]).

    (b)Ground 1(ii) did not disclose any jurisdictional error on the part of the Authority (AB 228: [29]) because the Authority did not apply a mathematical assessment in considering whether there was a real chance of harm to the appellant if he returned to Iran because of his dress choice (AB 224–225: [16]) and its finding that there was no such real chance was open to it on the material and evidence before it, and for the reasons it gave (AB 227: [21]). There was nothing to suggest that the Authority was not aware of or misunderstood the principles in assessing the ‘real chance’ test as enunciated in Chan (AB 227: [25]), and it did not misapply or misconstrue that test (AB 228: [26]).

    (c)The remainder of Ground 1 was no more than a disagreement with the Authority’s findings and conclusions thereby inviting impermissible merits review (AB 228: [28]).

12. The notice of appeal before this Court contains under the heading “Grounds of Appeal” the following appears:

    Jurisdictional error.  My barrister will draft the grounds of appeal in 28 days.  Her Honour ought to have found that there was jurisdiction error.

13. From this paragraph, I take it that what is being agitated before me is essentially the same ground, with its two different components (that were advanced before the primary Judge).  To this end, I have reviewed not only the judgment of the primary Judge but also the second of the decisions of the Authority.  Her Honour’s conclusion that Ground 1(i) was a restatement of the appellant’s claim rather than being a finding is, with respect, plainly correct.

14. Additionally, her Honour’s conclusion that the Authority did not apply a mathematical assessment in considering whether there was a real chance of harm does not manifest error, and there is no reason to think that the Authority misunderstood the principles in making its determination or that somehow misapplied or misconstrued the relevant (real chance) test.

15. Finally, not only was there no error in her Honour categorising the balance of Ground 1 as an impermissible invitation to merits review, she was correct in doing so.  For these reasons, there was no error in the way in which this matter was approached by the primary Judge.

16. Before leaving this matter, it is appropriate, however, that I come to one matter, which was the focus of the oral submissions made by the appellant.  This related to an email dated 28 May 2015.  This email had been referred to in a statutory declaration prepared by the appellant at the time of his visa application.  In paragraph 58 of that statutory declaration the following appears:

    In addition to the above problems, about two weeks ago [F] sent me an email from Dubai advising me that she had been sacked from her senior position at an Iranian bank because of her relationship with me and the fact that she had sent an email upon my request to [email protected] after my arrival in Australia (containing scanned copies of my personal identification documents).

17. The interpreter on the appeal read to me the terms of that email communication from the original Persian.  In the protection visa assessment in December 2015, reference was made to the email, in general terms, and the fact that the appellant’s then fiancée was dismissed from her work in a senior position within an Iranian bank.

18. Passing over the Authority’s first decision, where reference was made to the fact that the Authority did not find it credible that the appellant’s girlfriend was sacked while working for an Iranian bank, in the Authority decision the subject of the review before the primary Judge the matter was dealt with at some length:

    The applicant claims to fear harm for reason of his fiancée’s 2015 dismissal from her bank job because of her relationship with him and because after he arrived in Australia she sent an email to an Australian Department of Immigration email address for Christmas Island (containing scanned copies of his personal identification documents).  It is true that a Christmas Island email address would indicate to a monitoring authority that the transmitted information had been sent to support an Iranian citizen’s asylum application.  However, there is no evidence before me to indicate that the Iranian authorities take a punitive attitude toward citizens who see asylum in western countries like Australia.  Such a response might result if the person seeking asylum was perceived as being a threat to Iran’s internal security and/or the political stability of Iran.  The Iranian authorities have arrested and imprisoned a number of critical journalists and dissident political who are perceived in this way.  However, the applicant does not have a profile of this kind.  I accept that the applicant was arrested three times for code of behaviour infractions, and that in 2007 he was sacked from a government job for protesting of his salary reduction and refusing to join the Basij, but on the evidence I am not satisfied that such a history, even if known to the Iranian authorities, would result in adverse attention as a consequence of his having sought asylum in Australia.  It is not plausible that the Iranian authorities, or an Iranian bank, would sack the applicant’s fiancée for emailing the applicant’s personal identification documents to an Australian department of immigration email address for Christmas Island. I do not accept that the applicant’s fiancée was sacked on this basis.  Nor am I satisfied that the applicant, if he returned to Iran, would face a real chance of harm for reason of having sought asylum in Australia.

    (Footnotes omitted)

19. Even though this matter was not agitated before the primary Judge and it was appropriate for me to have regard to it given the way the case was conducted by the appellant’s then legal representative, it does not seem to me that the way in which the Authority approached the matter was not open to it, in the sense that it reveals some sort of jurisdictional error.  For these reasons, it is necessary that the appeal be dismissed with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee

Associate:

Dated:       20 August 2018