AMI20 v Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 3127

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMI20 v Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3127

File number(s):	BRG 65 of 2020
Judgment of:	JUDGE VASTA
Date of judgment:	28 October 2020
Catchwords:	MIGRATION – Protection Visa – application for extension of time for filing – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed
Legislation:	Migration Act 1958 (Cth)
Number of paragraphs:	45
Date of last submission/s:	28 October 2020
Date of hearing:	28 October 2020
Place:	Brisbane
Solicitor for the Applicant:	Applicant appearing on his own behalf with the assistance of an interpreter
Solicitor for the Respondents:	Mr Freebourn

ORDERS

BRG 65 of 2020

BETWEEN:

AMI20

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	28 OCTOBER 2020

THE COURT ORDERS THAT:

1.That leave for an extension to proceed out of time is refused.

2.That the Application filed 4 February 2020 is otherwise dismissed.

3.That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.

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 or the Court has received a request in writing from either party seeking that written reasons be produced.

REASONS FOR JUDGMENT
(Ex Tempore)

JUDGE VASTA

1. On 25 November 2019, the Administrative Appeals Tribunal (“the AAT/Tribunal”) affirmed a decision to refuse to grant the Applicant a protection visa.  On 4 February 2020, the Applicant asked this Court to review that decision.  As can be seen from those dates, the Applicant is well outside the 35-day limit in which to file this application.  This has become an application for an extension of time in which to commence the proceedings.

2. There are three circumstances that the Court looks at in determining an extension application.  Firstly, the Court looks at what is the reason or excuse for filing the application late.  The second is what prejudice is there to the Respondent if the Court were to grant the application; and, thirdly, is there sufficient merit in the substantive application to warrant the Court hearing the matter.

3. Turning to that last aspect first, it is instructive to look at the chronology of the matter.  The Applicant, who is a citizen of Iran, arrived in Australia by boat on 28 March 2013.  He applied for a protection visa; that is, a Class XA visa, on 25 June 2013.  The delegate refused to grant the visa on 23 January 2015.  The Applicant then applied to the Tribunal for a review of that decision. 

4. In the meantime, the Parliament had changed the legislation so that you could no longer apply for an XA visa.  The legislation provided that any application for an XA visa was deemed to be an application for an XD visa.  On 29 March 2016, the AAT affirmed the decision not to grant the Applicant a protection visa; however, it noted that it was an application for an XA visa.

5. The Applicant asked this Court to review that decision of the AAT.  The Court ordered, by consent, that because the AAT had decided the matter as if it were an XA visa, and not an XD visa, they had committed an error and so the Tribunal should consider the matter again.  The matter was returned to the Tribunal, and on 10 March 2017, the Applicant appeared before a second Tribunal.

6. That particular Tribunal, the second Tribunal, set aside the decision but substituted the decision saying that the application for the XA visa was not valid and therefore could not be considered.  That decision was also then referred to this Court.  This Court ruled that the XA visa application should have been considered to be an application for an XD visa. 

7. This Court ordered that the AAT look at the matter again, determining the matter as if it were, and always was, an application for an XD visa.  That decision was made on 20 November 2017. 

8. On 7 November 2019 the Applicant appeared before the present AAT and gave evidence.  That AAT thoroughly looked at the claims of the Applicant.

9. The AAT had the Applicant’s protection visa application form, a statutory declaration and a statement.  Those matters were summarised in the previous AAT hearing.  The AAT read to the Applicant what had been said in the past. 

10. In summary, what was said was this.  The Applicant was an Iranian citizen who is a Persian and a Shia Muslim.  His father is deceased, and his mother and siblings still live in Iran.  He lived in Iran all his life before coming to Australia.

11. He had been married for 13 years, and it was a happy marriage; however, his wife’s father was a high-ranking ayatollah.  The Applicant said that his father in law was always against his marriage - that he and his father in law had different opinions and that his father-in-law was hypocritical because his father-in-law would drink alcohol, sleep with other women and take drugs.

12. He said that, in 2005, he went to the north of Iran for work and was away for one month.  When he returned, his wife was gone.  His wife had been taken by her father, and they had also taken the good furniture.  He said that he contacted his father-in-law who told him he would not allow his daughter to return to the Applicant.

13. His father-in-law lived in Malayer – that is about 366 kilometres from Tehran, where the Applicant lived.  He said that he had not spoken to his wife since that time, and that his wife and father-in-law have changed homes and phone numbers.  The Applicant said he went to court to lodge a complaint against his father-in-law and was told to wait.

14. He said he was arrested by police who came and that his father-in-law was with them.  He said that he was able to escape, and he ran away.  He said that he went back to Tehran, and to other places, and hid.  He confirmed that this occurred seven years before he had made the move to leave Iran.  He said that he fears that if he goes back to Iran that his father-in-law would cause him harm.

15. He said that he will be persecuted by people in government and the police because of his father-in-law, and his father-in-law would arrange for him to be arrested, imprisoned, harmed or even killed.  He said that the police are in the pocket of his father-in-law and that they would not protect him.  He said that if he returned, he would be returning as a failed asylum seeker and would be targeted. 

16. He said that he would be arrested at the airport and that there would be no place in Iran that he could live safely because his father in law had influence everywhere. 

17. The Applicant agreed that this was the substance of the claims that he was making the first time he went to the AAT.  He provided a statutory declaration to this Tribunal where he was critical of some of the things that were said by that first Tribunal.

18. He was critical that the first AAT said that they did not believe that the Applicant was divorced.  The Applicant explained why he had not gotten a divorce certificate.  He said that he would explain even further, if it was needed, how it was that he was able to escape on the way to prison. 

19. He said that, whilst he was in Iran for seven years after this particular event, he lived in constant fear.  He explained that since he has been in Australia he has injured his neck, so he has not been able to do anything that would amount to work.  He said that his life has not been the same since that injury. 

20. He then gave to this Tribunal three other documents.  Those documents were a copy of his marriage certificate, a divorce certificate and a letter from Pastor Philip Cutcliffe of the Springfield Christian Family.  The Applicant confirmed that this was now the totality of the claims that he had made and that these were the only documents he had given to the Tribunal.

21. The Applicant was asked about how he left Iran.  The Applicant said that he left through the airport and flew to Indonesia.  He said he spent eight days in Jakarta before boarding a boat that went to Darwin.  He said that the people smuggler asked for his passport, and he gave him the passport, and the people smuggler threw the passport into the ocean. 

22. The tribunal asked the Applicant when he last saw his ex-wife.  The Applicant replied that he had not seen his ex-wife since she left him.  The Applicant was asked when the last time he saw his former father in law was.  He said that the last time he saw him was a month or so before his wife left him. 

23. The Tribunal asked him if he was sure about that, and he replied he was.  He reiterated that he went up north for work about a month before his wife was taken him.  The Tribunal put to him that he had earlier stated that he went to court to lodge a complaint against his former father in law, and that the police came and arrested him, and that his father in law was with them.  The Applicant replied that he did now remember that and that was true, but it had been a long time.

24. The Tribunal noted that the Applicant did not leave Iran until March 2013, and, when the Tribunal was looking at this matter, it was now 2019.  The Tribunal noted that it was now 14 years since the last time the Applicant had contact with his former father-in-law.  The Tribunal asked the Applicant why his former father-in-law would still be interested in him after all of this time.

25. The Tribunal noted that the former father-in-law had not bothered the Applicant’s mother or his brother in all of that time and that there had been no contact at all.  The Applicant replied, stating that he believed that his father-in-law was revengeful.  The Tribunal reminded the Applicant that the father-in-law had not been revengeful for the seven years in which the Applicant remained in Iran.

26. The Tribunal then went through the country information that spoke of the sophisticated security processes employed at Iran’s airports.  This cast great doubt on any claim that the Applicant was wanted by police or anyone if he were allowed to leave the airport.  The AAT looked at the country information as to how society treated Zoroastrians, Jews and Christians.

27. The AAT also had regard to the country information in relation to returning failed asylum seekers.  The Applicant was asked about all of that country information.  The Applicant said that the authorities might say they do not care about failed asylum seekers, but they actually do.  The Tribunal looked at the injury that the Applicant had and noted the country information about the health system in Iran.

28. The Tribunal then asked the Applicant about his Christian faith.  The Applicant said that he now lives better than when he was a Muslim because he now has faith and as a Muslim he did not.  The Tribunal asked the Applicant whether, if he went back to Iran, he would still practice as a Christian.  The Applicant said that he now has faith but he asked, rhetorically, how he would practice in Iran, saying that he would have to be discreet.

29. He said that if ordinary people find out or the government finds out, they will bother him.  The Tribunal noted the country information that Iranian Authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to converting to Christianity. 

30. The Applicant was invited to comment on that, and he replied that ordinary people will not give him jobs.  The Tribunal assessed the Applicant’s credibility and found that it was unconvincing and not compelling.  The Tribunal accepted that the Applicant had a difficult relationship with his former father-in-law and accepted that the father in law took the Applicant’s wife away in 2005.

31. The Tribunal noted the evidence that the Applicant gave to them about when he had last seen his father-in-law.  The Tribunal accepted the Applicant was correct that he had not seen his father-in-law for about a month before his wife left.  The Tribunal did not accept that the Applicant has any ongoing problems with his father-in-law.  The Tribunal did not accept that there was any incident where the Applicant escaped arrest or that he was wanted by the police.

32. This was corroborated by the fact the Applicant was able to leave Iran through the airport.  At paragraph 132 the tribunal said this:

    132. Furthermore, on the applicant’s own evidence, he has had no contact with his former father-in-law, former wife or any of her family since 2005.  His mother, who is related to his former father in law, has no contact with the former father-in-law.  In addition, the applicant’s brother has not received any attention at all from the former father-in-law or any member of his family.

33. The Tribunal did not consider that there was any real chance that the Applicant would suffer serious harm at the hands of his former father in law or any person acting on his behalf.  The Tribunal found that there would be no serious harm suffered in Iran by the Applicant because of his neck injury.  The Tribunal was not satisfied that the Applicant would face any harm because of the conversion to Christianity.

34. The Tribunal found that the Applicant would not suffer any serious harm because of being a failed returning asylum seeker.  The Tribunal found the Applicant did not meet the criteria of being a refugee. 

35. The Tribunal also assessed the Applicant’s claims against the criteria for complementary protection.  The Tribunal did not find that the Applicant met those criteria either. 

36. Having made those findings, the AAT affirmed the decision not to give the Applicant a protection visa. 

37. The only ground of the application is this: 

    1.The Administrative Appeals Tribunal and the delegate of the Minister for Home Affairs erred in law in making his decision.

38. The Applicant is unrepresented, though he has had the assistance of an interpreter today.  I asked the Applicant how it was that he said that the Tribunal had erred.  The Applicant said that he sent the Tribunal all his documentation.  He said that the Tribunal had said that he would not have a problem if he went back because of his Christianity.  He said:

    They showed me some sheets that said this during the hearing.

39. He said to me:

    They are lying.

40. He said:

    If you change religion in Iran you are hanged.

41. He said that, on the first occasion, he was not believed that he was divorced because he did not have papers.  He said that his family was able to find the divorce papers and send them to him. 

42. He said that the AAT had said that there was nothing to show that the Applicant was on the run.  He said that his family did find that paper that showed he was on the run, and he was able to forward it to the Court. 

43. He reiterated that a change of religion is not accepted in Iran. 

44. After listening to the submissions of the respondent, in reply he rhetorically asked:

    Are you saying that I won’t be killed?

45. He said he would be taken at the airport and killed.  He said that, even now, his father-in-law is asking questions of his family, asking has he come back. 

46. There does not seem to me to be any arguable claim that there was an error made by the AAT.  Having gone through the AAT judgment as thoroughly as I have, it is clear that the Applicant did not ever make a claim that he would be killed because of his conversion to Christianity.

47. His claim that he sent papers to the AAT showing that he was actually on the run and wanted by police is not an argument that could be accepted.  This is especially so when the Applicant himself conceded to the AAT that he had only sent the documents that the AAT had and nothing more. 

48. His argument that he would be taken at the airport and killed was not a claim that he made to the Tribunal, and his claim now that his father in law is still asking questions of his family is totally contrary to the evidence that he gave at the Tribunal. 

49. Given all of those matters, I cannot see that the Applicant has an arguable case on the merits to warrant this Court considering the claim.

50. As to the prejudice that would be suffered by the Respondent if an extension of time were granted, there has been a concession by the Minister that the Minister would not suffer prejudice to any great extent. 

51. As to the reason why the Applicant filed the application late, the Applicant said that he was depressed.

52. He said that, when he was rejected (by the AAT), he stayed at home and just cried.  He said that the church people came and asked why he was so sad.  He said that he had been rejected and he didn’t know what to do.  He said that they said:

    Don’t worry.  We will look after you.

53. He said that they took him to the doctor, and he was prescribed some medication for his depression.  He said that they took him to the church and:

    …they helped me and did what needed to be done.

54. He said that they were only there on Saturdays and that is why it took so long. 

55. I do not think that this excuse is a sufficient excuse.  The Applicant has had the benefit of two previous Tribunal hearings, albeit that one of them ended up being a Minister’s application to this Court. 

56. There is no medical evidence that shows that the Applicant’s depression was such that it meant that he could not actually function so as to make this application in time. 

57. When I put all three aspects together – that is, the reason for filing late, the prejudice to the respondent and the merits of the application – it is totally insufficient to warrant the Court granting an extension of time.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Dated:       17 November 2020