Amb19 v Minister for Home Affairs
[2019] FCCA 2693
•25 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AMB19 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2693 |
| Catchwords: MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.36 |
| Applicant: | AMB19 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 43 of 2019 |
| Judgment of: | Judge Vasta |
| Hearing date: | 25 July 2019 |
| Date of Last Submission: | 25 July 2019 |
| Delivered at: | Perth |
| Delivered on: | 25 July 2019 |
REPRESENTATION
| The Applicant appearing on his own behalf via telephone link |
| Counsel for the First Respondent: | Mr Oliver |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
That an extension of time in which to file the Application is refused.
That the Application filed 8 February 2019 is otherwise dismissed.
That the Applicant pay the costs of the First Respondent fixed in the sum of $4,000.
IT IS NOTED:
A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 43 of 2019
| AMB19 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
On 17 December 2018, the Immigration Assessment Authority (“the IAA”) affirmed a decision of the delegate not to grant the Applicant, AMB19, a protection visa. On 8 February 2019, the Applicant filed an originating application in this Court asking this Court to review that decision.
Under the applicable rules, the Applicant had 35 days in which to lodge the application with this Court, to ask the Court to review the matter. 8 February 2019 was actually the 54th day after the IAA had made their decision. Therefore, the Applicant is some 19 days out of time. He has, therefore, asked for an extension of time in which to file the application.
The principles regarding the court’s discretion to allow an extension of time are fairly well settled. There are three main principles. Firstly, what is the excuse for the delay; secondly, what prejudice, if any, is there to the Respondents; and, thirdly, are there sufficient merits in the actual substantive application to warrant the Court considering the matter?
It is the last aspect that I will look at firstly. To do this, one has to understand the background and the decision given by the IAA.
The Applicant is an Iranian citizen. He arrived at Christmas Island as an irregular maritime arrival on 7 July 2013. He applied for a protection visa and provided a statement of claims for that protection visa on 15 June 2017. On 25 September 2018, he attended an interview with the delegate at which his representative was present. The claims that the Applicant made are in short compass.
a)He is a homosexual male. If he is returned to Iran, he will be subject to serious harm because homosexuality is punishable by death in Iran, and is not tolerated in society.
b)If he is returned to Iran, it will be as a failed asylum seeker and he will be subjected to harm because of that fact.
c)He suffers from a mental health condition, and on return to Iran would face significant psychological harm.
The IAA thoroughly looked at the claims that the Applicant had made. The tale that the Applicant told did seem to chop and change.
At his arrival interview in 2013, he said that his last address was Khazaneh Bokharhaei in Tehran, from 2012 to April 2013. He said that he left Iran because his life was in danger. This is because he was a homosexual and in a relationship with his partner, Sa’id. One of Sa’id’s friends disapproved of the relationship and told Sa’id’s brother, Ali, about it two months prior to the Applicant departing Iran. Sa’id and Ali’s family name was Agha Pour. Ali was a member of the Basij. After being told about the relationship, Ali was looking for the Applicant. So the Applicant turned off his mobile phone. He arranged to travel to Indonesia. He held a legally issued passport, and in Indonesia he made contact with a smuggler whom he paid $4500 to, and he then travelled to Australia.
In the statement that he made for the protection visa, he said that he met Sa’id in 2006. They were friends for some time and then a sexual relationship developed. They did not tell anyone about the relationship. In early 2013, the Applicant confided in one of his friends. That friend told Sa’id’s brother. The brother’s name was Agha Pour. Agha Pour was a member of the Basij. Agha Pour and other Basij then came to the Applicant’s home, took him to their base. He was blindfolded, abused, beaten and pushed through a window. He was taken to hospital, but he discharged himself two days later. From the hospital, he went to stay with a friend in Karaj, to the northwest of Tehran. He stayed there for two months. He then made arrangements to leave the country. He kept a low profile and did not leave his friend’s house. He told no one that he was leaving for fear that he would be prevented.
At the protection visa interview, a third version was then given. That version had that the Applicant was friends with Sa’id for five to six years. They saw each other every day. A friend told Sa’id’s brother about the relationship. That friend’s name was Ali. Sa’id’s brother then made trouble. The Applicant did not know much about Sa’id’s brother – only that he was in the Basij. After being injured by the Basij, the Applicant went to hospital, and he had surgery to repair the ligaments in his fingers.
He then went to stay with his friend Ehsan. He used to work with Ehsan. He told Ehsan that he had been in a fight. The Applicant said that he also called one of his own brothers and told that brother that he had been in a fight. The brother said that he would help the Applicant leave the country. He organised money and tickets, and when the time came, he brought the Applicant his ticket and the Applicant departed Iran.
The IAA noted the inconsistencies and variations in those three versions, and there is no need for me to spell those out. However, what the IAA said is that the fact of those variations and inconsistencies significantly undermined the Applicant’s credibility and led the IAA to conclude that he was not a witness of truth.
The IAA then set out trying to determine whether the Applicant was indeed a homosexual. The Applicant said that he had had no relationships in Iran, either homosexual or heterosexual, except with the person Sa’id. In contrast with this, the IAA noted that he now claims to have been active in the gay scene in Melbourne, regularly attending the event held at Chasers Nightclub in Chapel Street. He provided a list of the first names of men he claims to have had relationships with over the past few years, and said that he has had 14 to 15 relationships, but he did not have any contact details for any of the men he listed because he said that he changed his phone.
In the protection visa interview, he said that he first realised he was homosexual in 2006 or 2007 when he had a friend who told him that he was gay one day and they had intimate relations. Later he advised that he was attracted to boys at school and they used to talk about homosexuality. Those two statements were contradictory.
In his statement of claims under the heading After I Arrived in Australia, he mentioned that he is no longer in contact with Sa’id, and that he has not told anyone in his family that he is homosexual. He made no mention at all of any other activities or relationships he had since arriving in Australia, and provided no corroborating evidence by way of texts, emails or anything of that nature from former partners to bolster his story.
The Applicant was aware that the penalty in Iran for homosexual activities is extremely severe and can actually lead to execution. The IAA said this:
In view of my conclusion as to his credibility, as well as the lack of any corroboration of his central claim, I do not accept the applicant is homosexual.
The Applicant also had spoken about his depression and his poor mental health. The IAA noted that there was no evidence before them to indicate that the Applicant had been diagnosed with anxiety and/or depression, but was prepared to accept that he suffers from a mental health condition and has made a claim for protection on that basis.
The IAA looked at what would happen if he were returned to Iran with regard to his mental health condition. The IAA noted that the country information does not support any contention that people suffering from mental health conditions are subject to official or social discrimination in Iran.
It was submitted that on return to Iran, the Applicant will be unable to access mental health facilities required to enable him to treat his condition, but the country information does not support the contention that mental health treatment is absent in Iran; however, even if this were the case, it would be due to the lack of such facilities within the country rather than an inability to access treatment due to race, religion, nationality or political opinion or membership of a particular social group. The IAA found that there was no well-founded fear of persecution on that basis.
The IAA then looked at the fact that the Applicant would return to Iran as a failed asylum seeker. The IAA looked at the country information that indicated that Iranian authorities paid little attention to failed asylum seekers on their return to Iran, and that Iranians had left the country in large numbers ever since the 1979 revolution, and authorities accepted that many will seek to live and work overseas for economic reasons. For that reason, the IAA was not satisfied the applicant faces a real chance of harm on return to Iran because he has lived in Australia for several years or sought asylum overseas.
The IAA noted that the Applicant would have to be returned on a voluntary basis. The DFAT information was that the Department of Foreign Affairs and Trade was not aware of any legislative or social barriers to voluntary returnees finding work or shelter in Iran. Therefore, the IAA came to the conclusion that he did not fulfil the criteria for a refugee.
The IAA then looked at the complementary protection criteria. In looking at that, the IAA paid special attention to the Applicant’s claim of a mental health condition, but noted that there was no information before the IAA as to the Applicant’s actual diagnosis, his treatment or his prognosis, and therefore it was difficult to say what his future treatment needs actually were.
There was country information that did not support any contention that mental health treatment is absent in Iran, and for that reason, the IAA was not satisfied there was a real risk of the Applicant being able to access treatment for his mental health condition. Therefore, there were no substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia to Iran, that the Applicant faced a real risk of suffering significant harm.
Having made those two conclusions, the IAA affirmed the decision not to grant the Applicant a protection visa.
The grounds of the application are extremely general, and it is obvious that someone other than the Applicant has written these grounds. There is no particularity to them, and they really are meaningless as they do not disclose any jurisdictional error without that particularity. However, I did take the Applicant through each and every one of them and ask him for his comment.
The first ground is that the decision of the IAA was unreasonable. I asked the Applicant what he meant by that, and he simply replied that he was not sure.
The second ground is that the IAA took into account irrelevant considerations. I asked the Applicant what he meant by that, and he said that the IAA asked him to provide documents while he was in detention, and he said that he had to be out of detention to be able to provide those documents. He then said for years he had mental problems.
The term “irrelevant considerations” in these matters means that the IAA has taken into account considerations that it is prohibited from taking into account. There is nothing in what the Applicant has said that shows that anything that the IAA had looked at was prohibited. The Applicant’s contention that he was asked to provide documents while he was in detention and he said that he had to be out of detention to do that, could only be a complaint made about the delegate rather than the IAA.
The IAA note at the beginning of their decision that they had received a submission from the representative of the Applicant, and because it contained no new information, it was accepted and taken into account. There was nothing irrelevant in that, so there is no merit in that ground either.
The third ground is that the IAA failed to take relevant considerations into account. Again, relevant considerations are considerations that are mandated for the IAA to consider, and the ground will only have merit if the IAA failed to mandatorily consider matters that it had to consider. When I asked the Applicant about this ground, he said he was asked why he did not call back to Iran, but he did not want to call Tehran, because if he called his parents or anyone else, they would have had trouble. He then said that he can now provide documents because he is not in detention.
I take from what he said that he is referring to a query that has been identified by the IAA as to the fact that the applicant was, according to him, in a relationship with Sa’id for some time, and it was apparently the only relationship of a sexual nature that he had ever had. Once the relationship was discovered, there is no evidence as to him trying to escape with Sa’id or being in contact with Sa’id, or, even after leaving the country, being in contact with Sa’id, or to that matter being in contact with his own family. His explanation at the interview was noted by the IAA as saying that he did not want to get people into trouble. The IAA has looked at that and taken it into consideration. It cannot be said that it has failed to take that matter into consideration, so there is no merit in that ground.
The fourth ground is that there was insufficient evidence, or no evidence, to support various findings made by the IAA. The Applicant simply says that this is regarding documentation that he could not give the IAA. The Applicant could not identify any finding that he wanted to specifically talk about as having insufficient or no evidence. It seems to me, on my recitation of the facts and of the decision of the IAA, that every finding that was made was made with a proper evidentiary basis. There is no merit in that ground.
The fifth ground is that the IAA misapplied and misinterpreted s.36 of the Migration Act 1958 (Cth) (“the Act”). The Applicant said in this Court that whatever he said was the truth, and he does not know why it was not accepted. That cannot be a misapplication or a misinterpretation of s.36. There is nothing else in what I could see from the decision of the IAA that displayed any misapplication or misinterpretation of that section so there is no substance in that ground.
The sixth ground is that the IAA’s decision involved an error of law. I asked the Applicant what the error was, and he said the error is that whatever he said was the truth and the IAA said that he was lying. That cannot constitute an error of law. It is an argument as to the merits of the decision, and so therefore there is no substance in that ground.
The last ground is that the IAA, in making the decision, did not comply with the rules of natural justice, and/or the Applicant was denied procedural fairness. It is trite to say that the rules of natural justice are codified in the Act, and the Applicant could not point to anything there that had been not complied with, and as fair as procedural fairness was concerned, he simply said that he does not know why they made the decision. He does not know why his story was rejected when he provided all of his proofs and had told the truth. That is not a denial of natural justice or procedural fairness. It is simply that the Applicant does not like the conclusion that the IAA came to.
In asking what else he wanted to say about this aspect, the Applicant simply told me that he was depressed, that he spent two years in detention, and that he has been depressed for many years and that he is trying to hide it. Again, none of that, whilst one may feel sympathy for the Applicant, illustrates any jurisdictional error. It would seem to me that there is no merit in the substantive application.
One of the other considerations that I must looking at, when considering an extension of time, is the prejudice to the Respondents. Given that this was a matter where the Applicant was only 19 days out of time, the Respondent here does not seriously contend that they have been unduly prejudiced by the delay.
I then must look at the excuse or the reason why the Applicant did file late. In his originating application, he simply wrote:
I have limited if not all knowledge of speaking and reading English, and this is the main reason why I got mixed with the dates for the application originating for review of my protection visa and during the Christmas/New Year period.
Then he wrote:
Two times my application was sent back by the Court due to mistakes in filling the form, and this confirms my ability to write English as I was helped by different people.
That second aspect was a matter that I wished to explore, because if the Applicant had attempted to file matters and they were sent back by the Court, there would be some record of that, and the Applicant could have easily provided that to show that he had tried to file the matter in time.
When I asked about this, he said that he did not send anything in. It was that he sent matters to the wrong address. I asked what proof there was of that wrong address, and he said that it was a fax – that he had faxed the application in and it was faxed to the wrong number.
The application that is before the Court is one that has been sent by facsimile, so the Applicant conceded that what he wrote was untrue and incorrect. He did not have an application that was sent back by the Court due to mistakes. It was he who faxed material to the wrong number, though it seems if he had faxed matters to the wrong number, it makes it strange that, number 1, he has not shown the facsimile transmission sheets to show that it went to the wrong number, but secondly, why it is that he would write that two times his application was sent back by the Court.
It could be asked rhetorically where is that application that has either been faxed to the wrong address or sent to the Court? That is a real deficiency in the excuse that the Applicant has given, and a reason why I totally reject that excuse.
Given that there is no merit in the substantive application and the delay in filing has not been adequately explained, I refuse the application for extension of time.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 25 September 2019
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