AMT17 v Minister for Immigration and Border Protection
[2021] FedCFamC2G 112
Federal Circuit and Family Court of Australia
(DIVISION 2)AMT17 v Minister for Immigration and Border Protection [2021] FedCFamC2G 112
File number(s): MLG 251 of 2017 Judgment of: JUDGE BLAKE Date of judgment: 6 October 2021 Catchwords: MIGRATION – Immigration Assessment Authority - Safe Haven Enterprise Visa (subclass 790) - Applicant held in Immigration Detention – section 78B of the Judiciary Act 1903 (Cth) – no matter arising out of the Constitution – Applicant not living in open detention – Applicant being held in immigration detention not unlawful – Application for Writ of Habeas Corpus refused - whether decision of Minister to designate Applicant as a fast track review applicant was invalid – whether decision of Immigration Assessment Authority was beyond power – whether decision by Minister to detain Applicant was beyond power – whether Immigration Assessment Authority failed to consider real risk of harm faced by the Applicant – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5, 5(1), 5AA, 5AA(1)(a), 5AA(2)(c), 5J(3)(c)(i), 5K, 5L, 46A, 189,189(3), 196, 197AB, 414, 473DC(2)
Judiciary Act 1903 (Cth) s 78B
Migration Amendment Act (No 2) 1980 (Cth) s 3
Cases cited: Al-Kateb v Godwin (2004) 219 CLR 562
Barnado v Ford [1892] AC 326
Commonwealth of Australia v AJL20 [2021] HCA 21
CWW18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 26
EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1012
EHZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 879
EIB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 5) [2020] FCCA
189
FFZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA
GGD18 v Minister for Home Affairs (No 3) [2019] FCCA 444
SZUJT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 612
Ruddock & Ors v Vadarlis (2001) 110 FCR 491
Division: Division 2 General Federal Law Number of paragraphs: 99 Date of hearing: 17 August 2021 Counsel for the Applicant: Mr Williams Solicitor for the Applicant: Ghaffari Lawyers Counsel for the Respondents: Mr Barrington Solicitor for the Respondents: Mills Oakley
MLG 251 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMT17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
Judge BLAKE
DATE OF ORDER:
6 October 2021
THE COURT ORDERS THAT
1.The Application filed on 8 February 2017 and amended on 13 May 2019 and further amended on 17 August 2021 be dismissed.
2.The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $9,750.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
introduction
This is an application for review of a decision made by the Immigration Assessment Authority ('Authority') on 12 January 2017. In that decision, the Authority affirmed the decision of a delegate of the Minister not to grant the Applicant a visa.
For the reasons that follow, I have decided to dismiss the application for review.
background
The Applicant is an Iranian national. The Applicant arrived on Christmas Island on 17 March 2013 after being rescued at sea on or around 13 March 2013.
Upon his arrival, the Applicant was placed in detention pursuant to section 189(3) of Migration Act 1958 (Cth) ('Act'). He was held in immigration detention from 17 March 2013 until 16 May 2013 at various locations including Christmas Island, Darwin and finally Perth.
On 16 May 2013, the Applicant was granted a bridging visa. He has held a number of visas since that time.
The Applicant lodged an application for a Safe Haven Enterprise Visa (subclass 790) on 2 May 2016 ('Visa').
On 9 November 2016, a delegate of the Minister ('delegate') refused to grant the Applicant the Visa. The matter was subsequently referred to the Authority.
On 12 January 2017, the Authority affirmed the decision not to grant the Applicant the Visa.
The Applicant commenced proceedings in this Court on 8 February 2017 by filing an application for review of the decision of the Authority and a supporting affidavit. The Applicant was unrepresented at that time.
On 18 February 2019, the Applicant filed a subpoena addressed to the Minister for Home Affairs to produce documents, specifically, the 'Suspected Irregular Entry Vessel Information Report relating to the Applicant's entry into Australia in or around March 2013'.
On 2 July 2019, Registrar Ryan made orders by consent noting that the subpoena had been complied with upon provision of a document titled 'Suspected Irregular Entry Vessel Information Report' with redactions.
On 13 May 2019, the Applicant filed an Amended Application containing three grounds of review.
Pursuant to orders made by the Court, the Applicant was to file any amended application and written submissions on 20 July 2021. No amended application or submissions were received by that date.
On 4 August 2021, the Applicant filed a number of additional documents including an affidavit of his solicitor affirmed 15 June 2020 and annexing a Further Amended Application dated 15 June 2020, a notice under section 78B of the Judiciary Act 1903 (Cth) ('78B Notice'), written submissions dated 15 June 2020, a further affidavit from his solicitor sworn 4 August 2021 annexing various documents including written submissions, and supplementary written submissions dated 4 August 2021.
The matter came on for final hearing before me on 17 August 2021.
preliminary matters
The 78B notice
The Applicant prepared the 78B Notice. At the time of hearing, the 78B Notice had not been given to any of the Attorneys-General as required by section 78B(1) of the Judiciary Act 1903 (Cth).
Given the 78B Notice had not been given to the Attorneys - General, I queried the parties as to whether the matter could proceed to be heard. The Applicant contended that a form of the 78B Notice had been prepared in other matters similar to the present matter, and no party had sought to intervene. The Minister contended that on a proper reading, the 78B Notice did not disclose any constitutional issue and the matter could therefore proceed.
It is a serious thing to proceed to hear and determine a proceeding if there is a matter arising under the Constitution or involving its interpretation, and the notice under section 78B has not been given to Attorneys-General. In that context, I have reviewed the 78B Notice carefully. I have also had the benefit in this matter of reading the parties’ written submissions, and hearing oral argument from them. In my view, in this proceeding, for reasons which will become apparent throughout the course of this judgment and upon which I rely in considering this issue, there is no matter arising under the Constitution, or involving its interpretation. Accordingly, there is not any impediment to the Court in proceeding to hear the matter.
The Further Amended Application, the proposed subpoena and proposed Statement of Claim
At the hearing on 17 August 2021, the Applicant sought leave to:
(a)rely on the Further Amended Application dated 15 June 2020;
(b)file and serve a further subpoena to produce evidence. A draft of the subpoena was not provided to the Court; and
(c)file and serve a Statement of Claim articulating claims of false imprisonment and negligence, and seeking damages. A draft of the proposed Statement of Claim was not provided to the Court.
Further to the above, in oral and written argument, the Applicant also foreshadowed that he wanted to be given discovery, and that he wanted to call witnesses to give evidence.
The Minister opposed the applications above.
Ultimately, I granted leave to the Applicant to rely on the Further Amended Application dated 15 June 2020 ('Application') for the reasons I gave orally at the time: in essence that the Minister had come prepared to meet the grounds set out in the Application and therefore while prejudiced by the late filing of the Application, his prejudice was not as great as that which the Applicant may face if he could not run the case he wished to run. I indicated, however, that I would reserve my decision on the other matters.
Having now heard from the parties in relation to the Application, I have decided to refuse the Applicant leave to file a further subpoena and leave to file a Statement of Claim. I also decline to permit discovery, or to adjourn the hearing to allow the Applicant a further opportunity to call witnesses.
This matter has been in the Court now for over four years. The Applicant's representatives have been on the record for the Applicant for in excess of two years. Despite that, and despite this matter being listed for final hearing, no draft subpoena or Statement of Claim was provided to either the Court or the Minister, either before the hearing or during the hearing. The Applicant therefore places the Court in the position of having to consider these issues without the benefit of these documents. The Applicant also by his conduct places the Minister in the position of not being able to properly consider any objection to these documents. That is a completely unsatisfactory way to run litigation, particularly litigation that has been on foot for 4 years. The delay in progressing this has not been adequately explained by the Applicant.
Further to the above, the effect of granting the applications pursued by the Applicant would result in the matter being adjourned. The Court has a wide discretion in relation to whether or not it adjourns a final hearing. Factors a Court generally takes into account include:
(a)ensuring that there is a just resolution of the proceeding for both parties and that both parties have the opportunity to advance their case;
(b)principles of case management and the avoidance of undue delay;
(c)issues in relation to the need to avoid a waste of public resources.
As I have stated above, this matter has already been in this Court for in excess of four years. Adjourning it any further would, in my view, cause undue delay. That would occur in a context where:
(a)the Applicant has been represented for two years and has therefore had the opportunity to raise the matters he now raises much earlier;
(b)no draft subpoena or Statement of Claim has been produced;
(c)the Applicant has pursued interlocutory issues in the past, yet provides no cogent explanation for why discovery was not pursued earlier, or why a Statement of Claim was not filed earlier or a further subpoena issued earlier;
(d)the Applicant knew the matter was listed for final hearing but has not taken any steps to arrange witness evidence at this hearing. He had an opportunity to arrange witness evidence, but did not take it up.
It is well known that there is a significant backlog of cases that need to be listed for hearing in this Court. A significant proportion of those cases occur in the migration jurisdiction. To not determine the matter now and defer it to a later date, will mean that the matter will have to be allocated another Court date. That will further delay the opportunity for another litigant to have his or her day in court, a situation which could have been avoided had the Applicant (who has legal advisors) properly prepared for Court. That is not an efficient use of the Court's time or resources, and causes further delays in the lists.
I have had the benefit of hearing the parties’ oral arguments in relation to the grounds of review set out in the Application. The grounds of review are not strong and ultimately, I have decided that the Application should be dismissed. That the grounds of review are not strong, in my view, provides a further reason for refusing to grant leave to serve a further subpoena and Statement of Claim, or to pursue discovery or call evidence from witnesses.
In considering these issues, I am not insensitive to the plight of the Applicant. Ultimately, if he fails to persuade the Court in respect of his Application, he faces deportation to a country where he claims he will be persecuted. That is a significant matter that needs to be properly weighed when considering the Applicant's requests. Ultimately however, in the circumstances of this case, it does not tip the balance in favour of the Applicant. There must be a limit to what the Court can accommodate even in a case involving review of a decision of whether to grant a protection visa, and in my view, this is a case where that limit has been reached. The case has been on foot for a long time. The Applicant has had access to legal representation for a long time. He has had the opportunity to run his case and to pursue any number of interlocutory applications, or call any number of witnesses he may have chosen to. He has not done so. He now needs to run his case and not embark upon a course that delays other litigants from having their day in court. I therefore decline to adjourn the matter to enable the Applicant to file a further subpoena, to file a statement of claim, or to pursue discovery or to call evidence from witnesses.
the application
The Application contains six grounds of review. Extensive particulars are provided under each ground of review.
The Applicant filed extensive written submissions. Written submissions dated 15 June 2020 and supplementary submissions dated 4 August 2021 were relied on by the Applicant, in addition to two affidavits of the Applicant's solicitor sworn 15 June 2020 and 4 August 2021 respectively. The Minister relied on written submissions and an affidavit from his solicitor affirmed 13 August 2021. I have considered all of the material above along with oral submissions made by the parties’ counsel during the hearing.
Ground 1
The first ground of review in the Application is as follows:
The decision by the Minister to designate the applicant as a UMA or fast review applicant was invalid and as a consequence the decision to detain the applicant and the decision by the IAA was beyond power
1.The decision by the delegate of the Minister made on 9 November 2016 to refuse the application for TPV and the decision by the IAA made on 12 January 2017 to uphold that decision was vitiated by jurisdictional error, as the applicant was not UMA's or fast track review applicant as defined by section 5, section 5AA or section 189 of the Migration Act 1958 (Cth). As a consequence, the decision by the delegate of the Minister made on 9 November 2016 and the decision by the IAA made on 12 January 2017 were beyond power and invalid.
Particulars
The applicant's entry into Australia
a) At [l] of the decision record, the applicant is a citizen of the Islamic Republic of lran (Iran), who claims protection in the Commonwealth of Australia (Australia) due to a real risk of harm under the refugee and complementary protection criteria for the grounds summarised from [10]-[16] of the decision record of the IAA.
The search and rescue operation by the Australian authorities
b)On 16 December 2012, the applicant departed Iran by plane destined for the Republic of Indonesia, (Indonesia). Shortly after, the applicant departed Indonesia for Australia by way of a boat, deemed by the Australian authorities as a Suspected Illegal Entry Vessel (SIEV) 610. There were many hungry and sick people on board and the boat was in distress and failing.
c)At 14:37 hours AEDST, on Wednesday 13 March 2013, the Australian Maritime Safety Authority Joint Rescue Coordination Centre and (AMSA) and the Rescue Coordination Centre (RCC) belonging to Border Protection Command (BPC) made contact with persons onboard the SIEV 610, which was in distress and split in two pieces, approximately 60 nautical miles north west of Ashmore Islands, within the Indonesian Search and Rescue Region and outside the territorial waters of the Commonwealth of Australia.
d)AMSA RCC accepted coordination of the search and rescue operation. The RCC requested any air or surface assets from the Australian Defence Force or Border Protection Command to respond to the incident. Customs Dash 8 was assigned to RCC for overwatch of the incident. ACV OCEAN PROTECTOR was released to RCC for SAR and proceeded to the area at best speed. HMAS CHILDERS was dual force assigned and proceeded to the area at best speed. RCC retained coordination of this incident. At the material time, the people on board SIEV 610, including the applicant, became formally subject to a search and rescue operation by the relevant Australian authorities.
e)About 16:25 hours AEDST on Wednesday 13 March 2013, Customs Dash 8 reported there were approximately 50 people in the water wearing life jackets, approximately 60nm north-west of Ashmore Islands, spread over approximately one nautical mile. HMAS CHILDERS was expected to be on scene approximately 17:30 AEDST. ACV OCEAN PROTECTOR was expected to be on scene approximately 18:30 AEDST.
f)A RAAF Maritime Patrol aircraft was also tasked to support the SAR and was scheduled to depart Darwin at 1800 AEDST and be on scene approximately 1900 AEDST. An RCC Dornier rescue aircraft was also assigned to the incident and was expected to be on scene at approximately 1800 AEDST.
g)Two Merchant Vessels responded to RCC 'all ships' broadcast. MV MARILOULA was anticipated to be on scene approximately 18:30 AEDST. MV AZUL VICTORIA was anticipated to be on scene approximately 18:20 AEDST.
h)HMAS CHILDERS arrived on scene approximately 17:20 AEDST on Wednesday 13 March 2013 and at the time of reporting had subsequently embarked 77 people which included three Indonesian crew. The rescue effort continued. The BPC Dash 8 surveillance aircraft remained on scene. RCC's Dornier aircraft arrived on scene approximately 17:51 AEDST, and remained on scene [sic] The revised number of people rescued by HMAS CHILDERS was 77 which included three Indonesian crew.
i)Enquiries conducted with those rescued indicated all people were successfully recovered from the water. The BPC Dash 8 surveillance aircraft, the RCC Dornier and the RAAF Maritime Patrol aircraft were released from SAR. ACV OCEAN PROTECTOR was released from SAR but remained at the scene with the intention of embarking rescued persons from HMAS CHILDERS. All responding Merchant Vessels were released from SAR. RCC retained coordination of the incident.
j)About 21:20 hours AEDST on Wednesday 13 March 2013, HMAS CHILDERS transferred the 77 rescued people to ACV OCEAN PROTECTOR. The rescued people were believed to be Iranian and consisted of adult men, women and juveniles and included three Indonesian crew members. ACV OCEAN PROTECTOR departed the scene and began passage to Christmas Island.
The detention of the applicant on Christmas Island
k)By 13:25hrs AEDST on Sunday 17 March 2013, all people from SAR 2013/1774 had been transferred to Australian Government agencies at Christmas Island.
l)On or around 17 March 2013, an officer for the Minister issued a "notice of detention of unlawful non citizens who are in an excised offshore place" pursuant to section 189(3) of the Migration Act 1958 (Cth) and the applicant was taken to the Christmas Island Detention Centre.
The detention of the applicant in community detention
m)In or around May 2013, the applicant was transferred into community detention, where he remains and faces restrictions on his liberty which members of the public do not ordinarily face, including access to employment, study, medical, housing and welfare rights.
Jurisdictional Error 1: The notice of detention on Christmas Island was invalid
n)On or around 17 March 2013, an officer for the Minister issued a "notice of detention of unlawful non citizens who are in an excised offshore place" pursuant to section 189(3) of the Migration Act 1958 (Cth). At the material time, the applicant was rescued at sea by the Australian authorities. The applicant was either rescued at sea, in which case the notice of detention was invalid or alternately, the applicant was detained prior to the execution of the instrument, whereby the detention was beyond power. Further, the applicant was rescued at sea within the Indonesian Search and Rescue Region and outside the territorial waters and contiguous zone of the Commonwealth of Australia, rendering the notice of detention invalid or beyond power. As a consequence, the applicant was not an "offshore entry person" or a "UMA" as defined by section 5, section 5AA or section 189 of the Migration Act 1958 (Cth) and the notice of detention was invalid and beyond power.
Jurisdictional Error 2: The rescue vessel belonged to the Commonwealth of Australia which was not an excised offshore place for the purposes of the Migration Act 1958 (Cth)
o)On or around 13 March 2013, the applicant was rescued at sea within the Indonesian Search and Rescue Region and outside the territorial waters and contiguous zone of the Commonwealth of Australia, and taken onboard a vessel commanded by officers belonging to the Commonwealth of Australia, carrying the flag of the Commonwealth of Australia, which is registered to Canberra, in the Australian Capital Territory (ACT) of the Commonwealth of Australia,
p)At the material time, the rescue vessel belonged to the Commonwealth of Australia, was registered to Canberra, which was not an excised offshore place as defined by section 5, section 5AA or section 189 of the Migration Act 1958 (Cth). As a consequence, the applicant was not an "offshore entry person" or a "UMA" as defined by section 5, section 5AA or section 189 of the Migration Act 1958 (Cth) and the notice of detention was invalid and beyond power.
Jurisdictional Error 3: The declaration of the Port on Ashmore Reef was invalid
q)The purported appointment of a port as a proclaimed port, in respect of an area of waters within the Territory of Ashmore and Cartier Islands, by notice published in the Commonwealth of Australia Gazette No. GN 3 on 23 January 2002, is invalid. As a consequence, the applicant was not an "offshore entry person" or a "UMA" as defined by section 5, section 5AA or section 189 of the Migration Act 1958 (Cth) and the notice of detention was invalid and beyond power.
Jurisdictional Error 4: The declaration of the Port on Christmas Island was invalid
r)The port on Christmas Island was declared a port on 22 January 1981. Section 3 of the Migration Amendment Act (No 2) 1980 (Cth), which provided the power to proclaim a port on Christmas Island, came into effect a day later, on 23 January 1981. As a consequence, the purported appointment of a port as a proclaimed port, in respect of an area of waters within the Territory of Christmas Island, by notice published in the Commonwealth of Australia Gazette on 22 January 1981, was invalid. As a consequence, the applicant was not an "offshore entry person" or a "UMA" as defined by section 5, section 5AA or section 189 of the Migration Act 1958 (Cth) and the notice of detention was invalid and beyond power.
Jurisdictional Error 5: The applicants were not a "UMAs" or "fast track review" persons and the decision by the IAA was beyond power
s)In the premises of ground (l)(a)-(r), the applicant was not an "Offshore Entry Person", or a "UMAs or "fast track" review candidate for the purposes of section 5, section 5AA or section 189 of the Migration Act 1958 (Cth).
t)At [1] of the decision record, the IAA observed that the "referred applicant (the applicant) is an Iranian national who arrived in Australia by boat, undocumented, on 17 March 2013. He lodged an application for a Safe Haven Enterprise visa (SHEV) on 2 May 2016. The Primary Decision Record incorrectly states that the application was for a Temporary Protection visa, and that it was lodged on 8 March 2016."
u)At [2], the IAA observed that the "delegate of the Minister for Immigration and Border Protection (the delegate) refused to grant the visa on 9 November 2016."
v)In the last paragraph, the IAA upheld the decision by the delegate of the Minister on 12 January 2017.
w)As a consequence, the IAA misunderstood, misconstrued or misapplied its jurisdiction and as a consequence, the decision made by the IAA was beyond power and invalid, giving rise jurisdictional error.
Consideration of this ground of review must begin with the Act, and what the Act defines as an 'unauthorised maritime arrival'. Section 5AA of the Act relevantly defines an 'unauthorised maritime arrival' as follows:
Meaning of unauthorised maritime arrival
(1) For the purposes of this Act, a person is an unauthorised maritime arrival if:
(a) the person entered Australia by sea:
(i)at an excised offshore place at any time after the excision time for that place; and
(ii)at any other place at any time on or after the commencement of this section; …
…
Entered Australia by sea
(2) A person entered Australia by sea if:
(a)the person entered the migration zone except on an aircraft that landed in the migration zone …
…
(c) the person entered the migration zone after being rescued at sea.
The term 'migration zone' was defined in section 5(1) of the Act as follows:
migration zone means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:
(a) land that is part of a State or Territory at mean low water; and
(b) sea within the limits of both a State or a Territory and a port; and
(c)piers, or similar structures, any part of which is connected to such land or to ground under such sea;
but does not include sea within the limits of a State or Territory but not in a port.
The term 'excised offshore place' was defined in section 5(1) of the Act as relevantly 'the Territory of Christmas Island'.
The Applicant filed extensive submissions in support of this ground of review. As can be seen from the ground of review set out above, the submissions were based on five separately identified alleged jurisdictional errors.
In connection with this ground of review, and also Ground 2, the Applicant emphasised in submissions, a document entitled 'Christmas Island JIG Information Report SIEV 60' dated 22 March 2013 ('SIEV Report') which was produced by the Minister following a subpoena issued by the Applicant. In respect of SIEV Report, the Applicant submitted that it referred to people (as I understood it, including him) being in the water approximately 60 nautical miles north-west of the Ashmore Islands, and that he would like to call expert evidence in respect of this issue. It was further submitted that the SIEV Report points to the Applicant being detained in Indonesian waters where the Authority does not have jurisdiction, that the vessel which picked up the Applicant was registered in Canberra and that Canberra is not an excised port and that prima facie the Applicant may have been in the territory of Ashmore Reef which is not an excised migration zone. Accordingly, it was submitted that the Applicant was not an unauthorised maritime arrival or a ‘fast track review applicant’ and therefore his detention and the decision of the Authority was invalid or beyond power.
The Applicant also relied on the Notice of Detention given to him. The Notice of Detention relevantly provides as follows (name of Applicant removed):
SECTION 189(3) DETENTION OF UNLAWFUL NON CITIZENS WHO ARE IN AN EXCISED OFFSHORE PLACE
DETAINEE: [X]
SECTION 189 OFFICER'S NAME: GILLIAN FELD
DATE OF DETENTION: 17/03/2013
PLACE: FLYING FISH COVE, CHRISTMAS ISLAND
VESSEL: SIEV 610 KASSBOHRER (KAS)
MY NAME IS GILLIAN FELD. I AM AN OFFICER FOR THE PURPOSES OF SECTION 189 OF THE MIGRATION ACT 1958 ('THE ACT’)
UNDER SECTION 189(3) OF THE ACT, RELEVANTLY, IF AN OFFICER KNOWS OR REASONABLY SUSPECTS THAT A PERSON IN AN EXCISED OFFSHORE PLACE IS AN UNLAWFUL NON-CITIZEN, THE OFFICER MUST DETAIN THE PERSON.
CHRISTMAS ISLAND IS AN EXCISED OFFSHORE PLACE FOR THE PURPOSES OF THE ACT. AN UNLAWFUL NON-CITIZEN IS A NON-CITIZEN WHO DOES NOT HOLD A VISA THAT IS IN EFFECT.
ON YOUR ARRIVAL AT CHRISTMAS ISLAND AT 0930hrs ON 17/03/2013, BASED ON THE AVAILABLE INFORMATION, I REASONABLY SUSPECTED YOU TO BE AN UNLAWFUL NON-CITIZEN AND I THEREFORE DETAINED YOU UNDER SECTION 189(3).
YOU ARE NOW IN IMMIGRATION DETENTION UNDER SECTION 189 OF THE ACT.
In respect of this document, it was submitted as follows. First, the Notice of Detention was signed on 19 March 2013, however the date of detention is said to be 17 March 2013. On that basis, and also because the Applicant was picked up in Indonesian waters, the Notice of Detention was void. It was submitted that the Applicant was first detained when he boarded the vessel on 13 March 2013, and that the Minister's submissions that he was first detained on Christmas Island, and became a 'UMA' as a result of that, are a legal fiction.
It is convenient to deal firstly with the Applicant's contention in relation to the Notice of Detention. The Notice of Detention specifies that it was issued under section 189(3) of the Act. Section 189 of the Act sets out the powers of an officer to detain an unlawful non-citizen. Nothing in the Act requires a Notice of Detention to be given. There is nothing in the Act that stipulates that a Notice of Detention be given to a person prior to detaining the person. The date on the notice or when the notice was given to the Applicant therefore in my view has no bearing on the validity of detention.
There is then the Applicant's submission that as the Notice of Detention was invalid, his detention was invalid, his designation as a 'fast track applicant' was invalid and that as a result of all this, the decision of the Authority was beyond power. That submission is advanced on a number of bases by the Applicant and it is appropriate to consider each of them in turn. It is appropriate to record here that the Minister's submission in respect of these matters is that the Applicant 'entered Australia by sea' at an 'excised offshore place' when he set foot on Christmas Island on 17 March 2013, within the meaning of the Act.
I have dealt already with the Notice of Detention and its effect on the validity of the Applicant’s detention. The Applicant’s next submission is that his detention was invalid because he was rescued in Indonesian waters. The evidence called in support of this submission is the SIEV Report.
The SIEV Report does not support a conclusion that the Applicant was rescued in Indonesian waters. It records events on the day the Applicant and others were rescued at sea. It makes references to distances and people, but these are all couched in imprecise language, for example, that individuals were 'approximately 60nm northwest of Ashmore Islands' (emphasis added). For the Applicant to succeed in this claim, among other things, proper evidence (and perhaps expert evidence) would need to be adduced. There is none before me. Furthermore, even assuming he could prove he was rescued in Indonesian waters, that may not necessarily produce the result that the detention of the Applicant was invalid, or that he is not an 'unauthorised maritime arrival'.
The Applicant's next contention is that among other things, the vessel that rescued him was registered in Canberra and belonged to the Commonwealth. He submits that this is not an 'excised offshore place' for the purposes of the Act. As a consequence, he says that he is not an 'offshore entry person' or an 'unauthorised maritime arrival' for the purposes of the Act.
There is an immediate difficulty with this submission. Under section 5AA of the Act, a person enters Australia if they have entered the 'migration zone'. The 'migration zone' is not defined to include or refer to the location where a ship is registered. There is a further problem confronting the Applicant. Even if it could be assumed that the Applicant was 'in Australia' from the time he was rescued, that does not deal with the issue under section 5AA of the Act. It is to be remembered that section 5AA(1)(a) of the Act deals with the question of when a person 'enters' Australia. There seems to be little doubt that the Applicant entered Australia for the purposes of section 5AA(1)(a) of the Act at least from the time he arrived on Christmas Island.
The contention by the Applicant that the declaration of the port on Ashmore Reef is invalid is perplexing. It is common ground that the Applicant did not disembark at Ashmore Reef. There is no suggestion the Applicant has ever been to Ashmore Reef. The only reference to Ashmore Reef is contained within the SIEV Report which refers to '50 people in the water wearing lifejackets, approximately 60nm north-west of Ashmore Islands, spread over approximately one nautical mile'. Whether or not the declaration of the port on Ashmore Reef is invalid or not appears to have nothing to do with this proceeding.
The Applicant next contends that the declaration of the port on Christmas Island is invalid. This contention, including the manner in which it has been put by the Applicant in this proceeding, has been considered on a number of occasions previously by the courts. The declaration of the port has been found to have been valid: see, for example, FFZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1 at [29]-[34], GGD18 v Minister for Home Affairs (No 3) [2019] FCCA 444 at [38]; CWW18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 26 at [18]-[19], [32]-[42]; EIB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 5) [2020] FCCA 1189 at [29], [36]-[41]; EHZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 879 at [60]; EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1012 at [20]. Further, the declaration of the port is not relevant to the question of whether the Applicant falls within the definition of 'unauthorised maritime arrival' in the Act.
Having dealt with the each of the asserted errors, there is one further reason why the Applicant cannot succeed under this ground of review. The Applicant has asserted numerous bases upon which he contends that he is not an 'unauthorised maritime arrival'. The Applicant has not, however, engaged meaningfully with the relevant sections of the Act that I have outlined earlier and which govern his circumstances. There can be little doubt that the Applicant 'entered Australia by sea' as contemplated by the definition of 'unauthorised maritime arrival'. There is not any doubt that Christmas Island is an 'excised offshore place' for the purposes of the Act and that the Applicant set foot on Christmas Island after his rescue. There is not any doubt that Christmas Island is a 'territory' for the purposes of the definition of 'migration zone'. Finally, whatever might be the state or location of the Applicant's rescue, there seems to be little doubt that he 'entered Australia by sea' and entered the 'migration zone after being rescued at sea' within the meaning of section 5AA(2)(c). These matters, in my view, make it clear that the Applicant falls within the definition of 'unauthorised maritime arrival' as contemplated by section 5AA of the Act. Yet despite these matters, and despite the breadth of the Applicant’s submissions, he does not engage meaningfully with the relevant provisions of the Act. I would also add that while the Applicant has sought to challenge the validity of his detention, other than pointing to the Notice of Detention, he has not engaged directly with the terms of section 189 of the Act or how, by reference to what is contained within that section, his detention was invalid.
For all of the above reasons, ground 1 of the grounds of review does not disclose any jurisdictional error and must be dismissed. The detention of the Applicant was not beyond power. His designation as an unauthorised maritime arrival was not invalid or beyond power.
Ground 2
The second ground of review is as follows:
Ground 2: The decision by the Minister to detain the applicant pursuant to section 189; section 196 and/or section 197AB of the Migration Act 1958 (Cth) was beyond power
2(i)The decision to exercise any statutory or non-statutory power by the Minister, including the Migration Act 1958 (Cth), or the decision to commence any necessary inquiry, including eligibility for the permanent protection criteria or the temporary protection criteria, and the decision itself, were not made as soon as reasonably practicable and constituted a failure to exercise jurisdiction.
2(ii)The decision by the Minister to detain the applicant pursuant to section 189; section 196 and/or section 197AB of the Migration Act 1958 (Cth), first in closed detention and then open detention from 13 March 2013 until the present day, was unlawful on the grounds that it is beyond the statutory and non-statutory of the Commonwealth of Australia and/or international law, as adopted or incorporated into Australia law.
Particulars
a) For the particulars articulated at ground (1).
The 'No Advantage Principle' - the Expert Panels Report
b)On 13 August 2012, the Commonwealth released the Report of the Expert Panel on Asylum Seekers. Pursuant to Recommendation 1:
The application of a 'no advantage' principle [is] to ensure that no benefit is gained through circumventing regular migration arrangements.
c) Pursuant to Recommendation 7:
The Panel recommends that legislation to support the transfer of people to regional processing arrangements be introduced into the Australian Parliament as a matter of urgency
d) Pursuant to Recommendation 8:
The Panel recommends that a capacity be established in Nauru as soon as practical to process the claims of IMA s transferred from Australia in ways consistent with Australian and Nauruan responsibilities under international law
e) Pursuant to Recommendation 9:
The Panel recommends that a capacity be established in PNG as soon as possible to process the claims of IMAs (irregular maritime arrivals) transferred from Australia in ways consistent with the responsibilities of Australia and PNG under international law.
f) Pursuant to Recommendation 14:
The Panel recommends that the Migration Act 1958 be amended so that arrival anywhere on Australia by irregular maritime means will not provide individuals with a different lawful status than those who arrive in an excised offshore place.
Particulars
i)Report of the Expert Panel on Asylum Seekers dated August 2012.
"5 years or more" in detention
g)The then Minister for the Department of Immigration and Citizenship (DIAC), the Hon. Chris Bowen stated in an ABC News Radio interview with Marius Benson, dated 22 November 2012, that it would take five or more years to process refugee claims under the 'No Advantage Principle.'
Particulars
i) The Hon. Chris Bowen MP, 'ABC Interview with Marius Benson,' 22 November 2012.
h)The then opposition leader and former Prime Minister of Australia, the Hon. Tony Abbott and the then Opposition Spokesperson for Immigration and now the Minister for Immigration and Border Protection, the Hon. Scott Morrison, were quoted in 'The Australian' newspaper on 30 October 2013 that 'boat people could expect to spend at least five years under a Coalition Government.'
Particulars
i) The Australian, 'Tony Abbott sets stay at five years' 19 October 2012
i) The UNHCR reported that asylum seekers had been told by Australian Government officials that 'they would have to wait five years before a durable solution would be found.'
Particulars
i) UNHCR Mission to the Republic of Nauru, 3-5 December 2012 [14]
j)The Australian Human Rights Commission reported that '…it will take five or more years to process refugee claims under the 'No Advantage Principle.'
Particulars
i) The Australian Human Rights Commission, Examination of the Migration (Regional Processing) Package of Legislation, Submission to the Parliamentary Joint Committee on Human Rights, January 2013 page 6.
k) Amnesty International reported that 'five years could be the wait time for asylum seekers under the 'No Advantage' policy.
Particulars
i) Amnesty International, Media Release, 23 November 2012
The Incorporation of the 'No Advantage Principle' into the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth).
l)On 18 August 2012, the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth), received assent and amended the Migration Act 1958 (Cth).
Particulars
i) Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth).
m)According to the Revised Explanatory Memorandum, ''the Bill implements key recommendations of the Report of the Expert Panel on asylum Seekers provided to the Prime Minister and the Minister for Immigration and Citizenship on 13 August 2012."
Particulars
i) The Parliament of the Commonwealth of Australia, Migration Legislation Amendment (Regional Processing and other Measures) Bill 2012, Revised Explanatory Memorandum
n)According to the Second Reading Speech by the then Minister for Immigration and Citizenship, dated 31 October 2012: ''this bill amends the Migration Act 1958 in accordance with the report of the Expert Panel on Asylum Seekers and the application of the 'no advantage' principle is to ensure that no benefit is gained through circumventing regular migration pathways … "
Particulars
i) Commonwealth, Parliamentary Debates, House of Representatives, 21 September 2011, 10946, (Chris Bowen, MP).
The Regional Resettlement Arrangement (RRA)
o)On 19 July 2013, Australia and PNG and Nauru formally entered into the 'Regional Resettlement Arrangement' (RRA), signed by the former Prime Minister, Kevin Rudd and the Prime Minister of PNG, the Hon Peter O'Neil (undated). According to the then Prime Minister, The Hon. Kevin Rudd:
From now on, any asylum seeker who arrives in Australia by boat will have no chance of being settled in Australia as refugees.
p)On 19 July 2013, a joint media statement was released by Kevin Rudd - Prime Minister, Mark Dreyfus- Attorney General and The Hon Tony Burke MP Australian Minister for Immigration, Multicultural Affairs and Citizenship, stating:
As of today asylum seekers who come here by boat without a visa will never be settled in Australia.
q)Subsequently, it was announced by the governments of Australia and Nauru and PNG that any unauthorised maritime arrivals found to be refugees, would "never come to Australia" and would be "resettled in PNG and Nauru." Further "[p]ersons found not to be refugees may be held in detention or returned to their home country or a country where they had right of residence."
Particulars
i) Regional resettlement arrangement between Australia and PNG, 19 July 2013
ii) Joint media release dated 19 July 2013, issued by the Prime Minister of Australia, the Minister for Immigration, Multicultural Affairs and Citizenship and the Attorney-General of the Commonwealth.
iii) Transcript of Joint Press Conference 19 July 2013
The Australian Government Fact Sheet-The 'No Advantage' Principle still applies to the Regional Resettlement Arrangements
r)As part of the announcements, the Australian Government released a fact sheet on the operation of the RRA, which states that ' [t]he government will still apply the principle of no advantage'.
Particulars
i) The Australian Government Fact Sheet
Operation Sovereign Borders
s) On 18 September 2013, the Minister for Immigration and Border Protection commenced Operation Sovereign Borders, a military-led, border security operation directed by a Joint Agency Task Force headed by Lieutenant General Angus Campbell DCS AM.
Particulars
i) The Hon. Scott Morrison, Operation Sovereign Borders update 30 September 2013. The Communique by the 22nd Papua New Guinea -Australia Ministerial Forum held at Parliament House in Canberra on 11 December 2013.
The applicant's arrival in Australia
x)On 13 March 2013, the applicant departed Iran by plane destined for the Republic of Indonesia, (Indonesia). Shortly after, the applicant departed Indonesia for Australia by way of a boat, deemed by the Australian authorities to be a Suspected Illegal Entry Vessel (SIEV). There were many hungry and sick people on board and the boat was in distress and failing.
y)At a time, date and location to be adduced, AMSA RCC accepted coordination of the search and rescue operation and officers from an Australia vessel operating under the command of AMSA RCC, located and boarded the SIEV and rendered assistance to the persons onboard.
The applicant's detention at Christmas Island
z)In or around January 2013, an officer for the Minister issued a "notice of detention of unlawful non citizens who are in an excised offshore place" pursuant to section 189(3) of the Migration Act 1958 (Cth) and the applicant was taken to the Christmas Island Detention Centre.
aa)The applicant told an officer to the Minister that he was a refugee because he feared persecution in Iran and that he claims protection in Australia.
bb)The officer to the Minister gave the applicant various information sheets under the heading of the "No-Advantage" rule and the "No-Resettlement" rule, which were different languages. The officer to the Minister told the applicant the following information.
i) The applicant would be sent to the Nauru or PNG;
ii)If the applicant was found not to be a refugee, he would be returned to Iran;
iii)If he was found to be a refugee he would be re-settled in Nauru or PNG;
iv)That he faces five or more years in detention whilst his refugee claims were processed;
v) That he could return to Iran at any time and that he would be eligible for Australian government payments to do so;
vi) The applicant would never be re-settled in Australia.
Jurisdictional error
t)The "No Advantage" regime and the "No-Resettlement in Australia" regime instituted by successive Australian governments since 2012, predetermined that unauthorised maritime arrivals would not have their protection claims heard and determined in Australia, that unauthorised maritime arrivals will face five or more years in "onshore" or "offshore" detention and that unauthorised maritime arrivals would never be resettled in Australia. As a consequence, the "No Advantage" and "No Resettlement" regime constituted a gross violation of the principles of non-refoulement and was an egregious breach of fundamental human rights, resulting in an arbitrary and indefinite detention, torture, cruel, inhuman and degrading treatment of the applicant in particular and asylum seekers more generally, which was beyond the statutory and non-statutory of the Commonwealth of Australia and/or international law, as adopted or incorporated into Australia law.
u)The decision by the Minister to commence inquiries into Australia's protection obligations with regard to applicant and his family and the decision itself, were not made as soon as reasonably practicable and constituted a failure to exercise jurisdiction.
v)In so far as section 189; section 196; section 197AB of the Migration Act 1958 (Cth), purported to authorise the arbitrary and indefinite detention of the applicants in closed and then open detention from January 2013 until the present day, such detention was not and is not necessary, or reasonably capable of being seen as necessary:
i) for the purposes of the applicant's removal from Australia;
ii) for the purposes of enabling an application for a visa to be made and considered; or
iii) for any other legitimate non-punitive purpose for which the Executive may be validly authorised to detain a non-citizen or alien.
w) Further or alternatively, at no material time has the duration of the applicant's detention been capable of objective determination by a court.
x)As a consequence, the "No Advantage" and "No Resettlement" regimes were in gross violation of Australian and international law and/or the failure to exercise jurisdiction within a reasonable time and the consequential detention of the applicant in closed and then open detention was unlawful and has been unlawful since January 2013 until the present day.
In oral argument before me in support of the above grounds and his written submissions, the Applicant contended, among other things, that he was given notice that he would be deported to Nauru and Papua New Guinea for five years. He submitted such notices and the approach of the Government was designed 'to break people' and there was no power under which such detention could be authorised. He also submitted there was a direction given to 'go slow' on the processing of permanent protection visas and the effect of that was to deny him a permanent protection visa.
Under this ground of review, the Applicant takes issue with the actions of the Minister (or his officers or delegates) under sections 189, 196, 197AB and 46A of the Act.
This ground in part proceeds on the basis that the Applicant has experienced a period of 'open detention'. This submission is advanced on the basis that while the Applicant is no longer held in immigration detention, the conditions attaching to his visa mean that he is effectively in a form of detention, or experiencing significant restraints on his liberty. The following needs to be said in relation to this submission. First, while the Applicant made submissions that he was subject to a range of conditions as a result of the visa that he currently holds, I was not taken to any evidence about these matters. I do not know what restrictions have been imposed on the Applicant. Further, to the extent that there might be restrictions on the Applicant as a result of him holding a visa, the Applicant did not engage at all with how or whether any such conditions or restrictions are unlawful. Finally, it appears common ground that whatever restrictions might be placed on the Applicant, he is living in the community.
For these reasons I do not accept that the Applicant remained in a form of detention when he was released into the community on a visa. Accordingly, to the extent this ground is pressed in relation to any detention of the Applicant, I regarded it as being pursued in respect of any period that the Applicant was physically detained.
Turning to the physical detention of the Applicant. The Applicant was detained pursuant to section 189(3) of the Act. As that subsection makes clear, an officer who reasonably suspects that a person (other than a person referred to in subsection 3A) in an excised offshore place is an unlawful noncitizen must detain the person. The Applicant under ground 1 unsuccessfully sought to challenge his designation as an unauthorised maritime arrival. I have rejected that submission. I should also add, should there be a need to repeat it given my earlier reasoning, that there is nothing before me that would persuade me the Applicant’s detention under section 189 was anything other than valid. I am satisfied the Applicant was validly detained in accordance with section 189 of the Act.
The substance of the Applicant's next submission is that he was detained for a purpose other than that permitted under the Act. Two things may be said about that submission. First, the Applicant has not put on any evidence which would enable me to make a finding that his detention was for a purpose not authorised by the Act. Second, when the terms of section 189 and section 196 of the Act are considered in the context of the facts of this case, the better view that emerges is that the Applicant was detained in accordance with section 189(3) of the Act, and then subsequently released from physical detention once he was granted a visa as contemplated by section 196 of the Act. It does not appear, in fact, that the Applicant was held in physical detention for any period longer than what is contemplated by section 196 of the Act. I therefore do not accept that the Applicant's detention on these asserted grounds is unlawful, or otherwise beyond power.
The next submission advanced by the Applicant under this ground asserts that the Minister delayed exercising his power under section 46A(2) of the Act which caused the Applicant to become ineligible for a permanent protection visa. The submission is also put in another way: that the Minister failed to exercise jurisdiction within a reasonable time, or as soon as reasonably practicable. Section 46A of the Act is concerned with visa applications by unauthorised maritime arrivals. There are at least two observations to be made about section 46A. First, the power contained within section 46A(2) is not a power that must be exercised at any time. The Minister is not compelled to exercise the power. He may exercise the power if he considers it 'in the public interest to do so'. Subsection (7) to section 46A makes it clear that the Minister does not have a duty to consider to exercise the power. Second, there is nothing within the terms of section 46A(2) that requires the Minister to exercise the power under subsection (2) within any particular time period, or even a reasonable time period.
Within grounds (t) to (x), the Applicant advances a number of other asserted jurisdictional errors. These alleged errors largely overlap with the submissions I have already sought to address above. To the extent, however, it may be said that the errors alleged under subparagraphs (t) to (x) of these grounds raise fresh matters, I address them below.
Alleged jurisdictional error (t) in the present ground of review is set out above. There is no evidence before me of the Minister attempting to 'refoule' the Applicant. There is no evidence before me that the Applicant has been subjected to indefinite detention - his period of detention was short and lawful. There is no evidence of the Applicant being subjected to torture, cruel, inhuman and degrading treatment. The asserted error cannot be made out on the evidence.
Alleged jurisdictional error (u) in the present matter has been set out earlier. I do not accept the Applicant's submission that what is set out in subparagraph (u) to this ground gives rise to jurisdictional error for the reasons I set out previously regarding the nature and operation of section 46A of the Act.
Alleged jurisdictional error (v) and (w) in the present matter has been set out earlier. I do not accept the Applicant's submission that what is set out in subparagraph (v) to this ground gives rise to jurisdictional error. For the reasons given previously, I do not accept that the Applicant has been arbitrarily or indefinitely detained, or that he remains in ‘open detention’. I do not accept, for the reasons given previously, that the Minister has acted contrary to sections 189, 196 or 197AB of the Act or that the Applicant's detention is unlawful or otherwise beyond power.
Jurisdictional error (x) in the present matter has been set out earlier in these reasons. This alleged error relies on earlier aspects of this ground of review which I have previously rejected. I do not accept the proposition advanced under this ground that there has been a failure to exercise jurisdiction within a reasonable time or that the Applicant's detention has been unlawful.
For all of the above reasons, I am unable to accept the proposition that the detention of the Applicant was unlawful because, inter alia, the Minister did not as soon as reasonably practicable to commence inquiries into the grant of a temporary or permanent protection visa, or because any detention was beyond statutory power or contrary to international law. Ground 2 of the grounds of review must therefore be dismissed.
Grounds 3 and 4
It is convenient to consider grounds 3 and 4 together as both relate to the claim by the Applicant that he faced harm because he was apostate under Sharia law. Grounds 3 and 4 are as follows:
Ground 3: The IAA failed to consider the real risk of harm faced by the applicant as an apostate under Shariah [sic] law and therefore constructively failed to review the applicant's claims under the refugee and complementary criterion
3.The decision by the IAA was affected by jurisdictional error as the IAA failed to respond to a substantial, clearly articulated argument relying upon established facts with regard to the applicant's claims or an integer of those claims, as an apostate, which carries the death sentence under Sharia law in Iran under the refugee criterion at [15] of the decision record and under the complementary criterion at [47] of the decision record. The IAA therefore constructively failed to review the applicant's claims.
Particulars
The protection claims as an apostate under Sharia law
a)At [39], the IAA found that the applicant is a male citizen of the Islamic Republic of Iran (Iran) who claims protection in the Commonwealth of Australia (Australia) based on his religious belief, political opinion and membership of a social group as a non-Muslim and apostate, which carries the death sentence in Iran.
15. He claims that in Iran he was not a practising Muslim, but since he has been outside the country, he does not believe in any God. He claims that this would be exposed on return and he would be punished as an apostate.
The IAA's findings under the refugee criterion
b)At [41], the IAA erred by failing entirely to consider the applicant's claim of a real risk of harm as a non-practicing Muslim and an apostate under the refugee criterion.
41. While I accept that the applicant no longer believes in Islam, I am not satisfied that there is a real chance that this would come to the attention of the authorities and lead to the applicant being harmed. I am satisfied that the applicant could express his religious (and political) views, and choose not to observe Islamic religious practices, in the same manner he did prior to his departure from Iran without facing adverse consequences. I consider that this would not require him to modify his behaviour or conceal his beliefs in a manner not permitted by s.5J(3).
The IAA"s findings under the complementary criterion
c)At [47], the IAA failed entirely to consider entirely the applicant's claim of a real risk of harm as an apostate under the complementary criterion.
47. For the reasons set out above, I have not accepted that the applicant faces a real chance of harm on return to Iran because he was considered to be a security risk after being rejected for employment with the sepah, or because as a consequence he possessed classified information, or because he was perceived as a critic or political opponent of the government; or because he is or would be imputed to be an atheist; or as a failed asylum seeker returning on a temporary travel document. For the reasons set out above, I am also satisfied that there is not a real risk that he would face significant harm for any of those reasons.
Ground 4: The decision by the IAA was affected by an excess of jurisdiction due to the absence of a jurisdictional fact regarding the DFAT 2016 Report
4. The decision by the IAA substantially relied on and was in large part affected by country information regarding the punishment of apostasy by the death sentence in Iran by the DFAT report in 2016, which was superseded by country information regarding the punishment of apostasy by the death sentence in Iran by the DFAT report in 2018. The new country information raises sufficient doubt over the relevance and cogency of the DFAT 2016 report, giving rise to an absence of jurisdictional fact, resulting in a "practical" injustice and a constructive failure to properly review the applicant's protection claims under section 414 of the Migration Act 1958 (Cth), or a failure to satisfy the implied condition of procedural fairness.
Particulars
The country information-the DFAT Report 2016
a)At [31], the IAA observed that "[c]ountry information indicates that while under Iranian law a Muslim who leaves the faith and converts to another religion or becomes an atheist can be charged with apostasy, this is rare; the last known case was in 2011".
b)Since the publication of the DFAT 2016, the Minister and the IAA have received an updated country report for Iran by DFAT, which was published on 7 June 2018 and is contrary to the findings of DFAT 2016 report.
The DFAT Country Information 2018
c)The most recent report by "DFAT Country Information Report Iran", June 2018, at page 25, [3.44] observed that in March 2017 the Supreme Court upheld the decision of a criminal court in Arak to sentence a 21 year old man to death for apostasy after he made social media posts considered critical of Islam and the Koran while on military service in October 2015."
3.44. Death sentences in apostasy and blasphemy cases are now rare. However, in March 2017 the Supreme Court upheld the decision of a criminal court in Arak to sentence a 21 year old man to death for apostasy. Authorities had arrested the man after he made social media posts considered critical of Islam and the Koran while on military service in October 2015. Human rights groups claim authorities tricked the man into confessing to the charges with the promise of release if he did so. The death sentence had not been carried out as of March 2018. The court also convicted two co-defendants of posting anti-Islamic material on social media, sentencing them to prison.
The finding by the IAA under section 5J(3)
d)In light of the most recent country information on Iran contained in the DFAT 2018 report, the findings by the IAA at [41] were affected by an absence of jurisdictional fact, giving rise to a practical injustice.
41. While I accept that the applicant no longer believes in Islam, I am not satisfied that there is a real chance that this would come to the attention of the authorities and lead to the applicant being harmed. I am satisfied that the applicant could express his religious (and political) views, and choose not to observe Islamic religious practices, in the same manner he did prior to his departure from Iran without facing adverse consequences. I consider that this would not require him to modify his behaviour or conceal his beliefs in a manner not permitted by s 5J(3).
Jurisdictional error: Absence of jurisdictional fact and practical injustice
e)The new country information raises sufficient doubt over the relevance and cogency of the DFAT 2016 report, giving rise to an absence of jurisdictional fact, resulting in a "practical" injustice and a constructive failure to properly review the applicant's protection claims under section 414 of the Migration Act 1958 (Cth), or a failure to satisfy the implied condition of procedural fairness.
In respect of Ground 3, the Applicant submitted as follows. The Authority failed to respond to or engage with a substantial and clearly articulated claim that the Applicant was an apostate and therefore at risk of harm. It was submitted that the Authority failed to consider the Applicant's claim of a real risk of harm as a non-practising Muslim under the refugee criterion and also failed to consider it entirely when assessing the Applicant's claims under the complementary criteria.
In order to assess these contentions, it is necessary to have regard to the decision of the Authority. A review of the decision of the Authority discloses the following:
(a)the Authority summarised the Applicant's claims for protection at paragraphs [10]-[16] of its reasons. At paragraph [15], the Authority noted that the Applicant '…claims that in Iran he was not a practising Muslim, but since he has been outside the country, he does not believe in any God. He claims that this would be exposed on return and he would be punished as an apostate.';
(b)the Authority set out its factual findings from paragraph [17] of its reasons onwards. At paragraph [31] of its reasons, the Authority considered a 'DFAT Country Information Report Iran April 2016' ('2016 Report'). The Authority stated that:
Country information indicates that while under Iranian law a Muslim who leaves the faith and converts to another religion or becomes an atheist can be charged with apostasy, this is rare; the last known case was in 2011. DFAT considers it unlikely that an individual would be prosecuted for apostasy, or that religious observance - such as attendance at mosque or participation in religious occasions - would be monitored. The authorities would likely only become aware of a person's views if s/he sought to publicise them.
(c)the Authority at paragraph [32] of its reasons stated:
The applicant has described having conversations with his friends about his unfavourable views of the regime as well as his lack of belief in Islam. What he has described appears to me to fall within DFAT’s assessment of what constitutes acceptable parameters for the open expression of political and religious views by ordinary citizens in Iran. On the applicant’s own account, he has not suffered any adverse consequences as a result of having expressed his views publicly; indeed, he claims that security officials were aware of his having expressed such views but that they took no action, apart from a veiled threat which in my view does not represent harm or a genuine or serious threat of harm.
…
As discussed above, I am not satisfied that the applicant refrained from expressing his views because he was afraid to do so. I consider that in Iran he did express his views to the extent and in the manner that he wished to do so. I consider that the applicant would be able to continue to express his political and religious views – including choosing not to observe religious practice - on return to Iran in the way he has in the past. There is no credible evidence before me to suggest that the applicant would modify his behaviour on return to Iran in order to avoid persecution.
The Authority then proceeded to assess the Applicant's claim in relation to the refugee criterion. At paragraph [41] of its reasons, the Authority concluded as follows:
While I accept that the applicant no longer believes in Islam, I am not satisfied that there is a real chance that this would come to the attention of the authorities and lead to the applicant being harmed. I am satisfied that the applicant could express his religious (and political) views, and choose not to observe Islamic religious practices, in the same manner he did prior to his departure from Iran without facing adverse consequences. I consider that this would not require him to modify his behaviour or conceal his beliefs in a manner not permitted by s.5J(3).
The Authority then assessed the Applicant’s claim under the complementary protection criterion. At paragraph [46] of its reasons, the Authority stated:
The applicant has made no specific claims that he requires protection under the complementary protection criterion, separate from those claims made in relation to the refugees criterion.
At paragraph [47], of its reasons, the Authority concluded as follows:
For the reasons set out above, I have not accepted that the applicant faces a real chance of harm on return to Iran because he was considered to be a security risk after being rejected for employment with the sepah, or because as a consequence he possessed classified information, or because he was perceived as a critic or political opponent of the government; or because he is or would be imputed to be an atheist; or as a failed asylum seeker returning on a temporary travel document. For the reasons set out above, I am also satisfied that there is not a real risk that he would face significant harm for any of those reasons.
Then at paragraph [48], the Authority concluded as follows:
There is no basis arising from the credible evidence before me to support a finding that the applicant faces a real risk of significant harm for any other reason, or arising from his personal circumstances considered cumulatively.
When the reasons of the Authority are considered, it is clear that the Authority recognised the Applicant's claim to fear harm on the basis of being considered an apostate, engaged with that claim and dealt with the claim. The Applicant suggested there was a deficiency in the reasons given by the Authority at paragraphs [41] and [47] of its reasons which discloses that the claim was not properly reviewed. I disagree. Paragraph [41] deals directly with the claims advanced in so far as the Authority was required to assess those claims against the refugee criteria. Paragraph [46] - [48] of the reasons likewise demonstrate that the Authority dealt with the claim when it came to assessing the claim under the complementary protection criteria.
There is then the contention by the Applicant advanced under Ground 4. The Applicant says the 2016 Report was superseded by a further country information report produced by DFAT in 2018 ('2018 Report'), and that this newer information raises doubt over the relevance and cogency of the 2016 Report. This is said to give rise to, inter alia, an absence of jurisdictional fact resulting in a 'practical' injustice to the Applicant and a constructive failure to properly review the Applicant's claims for protection.
The submission by the Applicant under Ground 4 is one that is able to be quickly disposed of. The decision of the Authority is dated 12 January 2017. The Applicant's written submissions made clear that the 2018 Report was published on 7 June 2018. How it can be said that the Authority should have had regard to the 2018 Report when it was not published or available at the time the Authority made its decision was not explained at all. Furthermore, this all occurs in a context where the Authority is not under any duty to obtain new information: see section 473DC(2).
For all of the above reasons, grounds 3 and 4 do not disclose any jurisdictional error by the Tribunal and should be dismissed.
Ground 5
Ground 5 of the Grounds of Review is as follows:
Ground 5: The IAA misapplied section 5J(3)(i) of the Migration Act 1958 (Cth) by finding expressly or by implication that the applicant can or should modify his behaviour so as to avoid a real chance of persecution
5.The IAA misapplied section 5J(3)(a)(b)(c)(i) and (iii) and sections 5k and 5L of the Migration Act 1958 (Cth) at [41] under the refugee criterion and at [47] under the complementary criterion, by failing to give genuine, proper or realistic consideration to whether the applicant will be forced to modify his behaviour so as to avoid a real chance of persecution in Iran that (a) with a characteristic that is fundamental to the person's identity or conscience; or (b) conceal an innate or immutable characteristic of the person; or (c)(i) alter his religious beliefs as a non-practising Muslim; or (c)(iii) alter his political beliefs; or his membership of a social group pursuant to section 5K and 5L of the Migration Act 1958 (Cth) as an apostate, which punishable by death under Sharia law, so as to avoid persecution. Alternatively, the IAA erred by implication that the applicant can or should modify his (a) characteristics fundamental to his identity or conscience, (b) immutable characteristic; (c) his religious beliefs, or (d) his political opinion or (e) hismembership [sic] of a social group as an apostate, which punishable by death under Sharia law, so as to avoid a real chance of persecution.
Particulars
The protection claims as a non-practising Muslim and as a male who has adopted Western values and a Western lifestyle
a)The IAA observed at [15] that the applicant "claims that in Iran he was not a practising Muslim, but since he has been outside the country, he does not believe in any God. He claims that this would be exposed on return and he would be punished as an apostate."
The finding by the IAA under section 5J(3) of the Migration Act 1958 (Cth)
b)The IAA erred at [41] by finding that I am satisfied that the applicant could express his religious (and political) views, and choose not to observe Islamic religious practices, in the same manner he did prior to his departure from Iran without facing adverse consequences." Moreover, the IAA erred by finding that "I consider that this would not require him to modify his behaviour or conceal his beliefs in a manner not permitted by s.5J(3)."
41. While I accept that the applicant no longer believes in Islam, I am not satisfied that there is a real chance that this would come to the attention of the authorities and lead to the applicant being harmed. I am satisfied that the applicant could express his religious (and political) views, and choose not to observe Islamic religious practices, in the same manner he did prior to his departure from Iran without facing adverse consequences. I consider that this would not require him to modify his behaviour or conceal his beliefs in a manner not permitted by s.5J(3).
The IAA"s findings under the complementary criterion
c)The IAA failed entirely to consider entirely whether the applicant will be forced to modify his behaviour as an apostate, punishable by death under Sharia law so as to avoid a real chance of persecution in Iran by simply adopting the findings under the refugee criterion to the complementary criterion.
47. For the reasons set out above, I have not accepted that the applicant faces a real chance of harm on return to Iran because he was considered to be a security risk after being rejected for employment with the sepah, or because as a consequence he possessed classified information, or because he was perceived as a critic or political opponent of the government; or because he is or would be imputed to be an atheist; or as a failed asylum seeker returning on a temporary travel document. For the reasons set out above, I am also satisfied that there is not a real risk that he would face significant harm for any of those reasons.
Under this ground, the Applicant takes issue with the findings of the Authority at paragraphs [41] and [47] of its reasons. I have set out those paragraphs earlier in these reasons. The Applicant submits that there was a failure by the Authority to give proper consideration to whether the Applicant will be forced to modify his behaviour in respect of, inter alia, his religious beliefs, so as to avoid a real chance of persecution or harm under the refugee criteria and complementary protection criteria. The Applicant also submits the Authority erred by implying that the Applicant should modify his behaviour, so as to avoid a real chance of harm or persecution under the refugee criteria and the complementary protection criteria.
In order to consider this ground, it is necessary to have regard to section 5J(3)(c)(i) of the Act. That section provides as follows:
5JMeaning of well‑founded fear of persecution
…
(3)A person does not have a well‑founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
…
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
I have considered the submissions of the Applicant and in particular, paragraphs [41] and [47] of the reasons of the Authority. The Applicant's submissions under this ground are founded upon a misreading of what is contained in paragraph [41] of the reasons of the Authority. The Authority stated that the Applicant 'could express his religious (and political) views and choose not to observe Islamic religious practices in the same manner he did prior to his departure from Iran without facing adverse consequences'. In light of that finding, the Authority found that 'I consider this would not require him to modify his behaviour or conceal his beliefs in a manner not permitted by s.5J(3)'. There are three immediate observations to be made about this. First, contrary to the Applicant's submission, the Authority did consider whether the Applicant will be forced to modify his behaviour. Second, there was no finding by the Authority that the Applicant should modify his behaviour. Third, the Authority was of the view that when the Applicant's past behaviour was considered, such behaviour was not of a kind that would attract the attention of the Iranian authorities. No modification of behaviour was called for.
Under this ground of review, the Applicant also makes the same submissions above in respect of the manner in which the Authority approached its task under the complementary protection criteria. I have set out earlier in these reasons paragraphs [46]-[48] of the reasons of the Authority. The Authority expressly recognised at [46] of its reasons that the claims made under the complementary protection criteria were the same as the claims made under the refugee criteria. The Authority at [47] then makes clear that it relies on its earlier reasons and findings to conclude that the Applicant does not face a real risk of significant harm for any of those reasons under the complementary protection criteria. There is nothing unusual about the Authority’s reasoning. The Applicant's submission in so far as it concerns the application of the complementary protection criteria to this ground must therefore fail.
In my view, the Applicant has not made out this ground of review. It should be dismissed.
Ground 6
Ground 6 of the Grounds of Review is as follows:
Ground 6: The IAA erred by failing to distinguish the application of section 5.J(6) of the Migration Act 1958 (Cth) to refugee criterion from the complementary criterion
6. The decision by the IAA was affected by jurisdictional error as the IAA failed to consider the applicant's claim that he faces a real risk of significant harm as an apostate under the complementary criterion at [47] of the decision record. The IAA therefore erred by misinterpreting, misunderstanding or misapplying the applicable law by conflating the considerations regarding the applicant's claims as an apostate under the refugee criterion at [41] and [46], with the considerations under the complementary criterion at [47] of the decision record.
Particulars
The IAA findings under the refugee criterion
d)The IAA erred at [41] by finding that I am satisfied that the applicant could express his religious (and political) views, and choose not to observe Islamic religious practices, in the same manner he did prior to his departure from Iran without facing adverse consequences." Moreover, the IAA erred by finding that "I consider that this would not require him to modify his behaviour or conceal his beliefs in a manner not permitted by s.51(3)."
The IAA's findings under the complementary criterion
e)At [46], the IAA erred by conflating the findings under the refugee criterion at [41] with the findings under the complementary criterion at [47] of the decision record.
46. The applicant has made no specific claims that he requires protection under the complementary protection criterion, separate from those claims made in relation to the refugees criterion
f)The IAA failed entirely to consider entirely whether the applicant will be forced to modify his behaviour as an apostate, punishable by death under Sharia law so as to avoid a real chance of persecution in Iran by simply adopting the findings under the refugee criterion to the complementary criterion.
47. For the reasons set out above, I have not accepted that the applicant faces a real chance of harm on return to Iran because he was considered to be a security risk after being rejected for employment with the sepah, or because as a consequence he possessed classified information, or because he was perceived as a critic or political opponent of the government; or because he is or would be imputed to be an atheist; or as a failed asylum seeker returning on a temporary travel document. For the reasons set out above, I am also satisfied that there is not a real risk that he would face significant harm for any of those reasons.
Jurisdictional error
g)It was not enough for the IAA to simply dismiss the applicant's claims for protection as an apostates under the complementary criterion by applying the IAA's findings under the refugee criterion. The IAA failed to appreciate that the considerations under the refugee criterion are different in kind to the considerations under the complementary criterion. The IAA erred by failing to examine entirely the applicant's claims of apostasy under the complementary criterion and by conflating the findings regarding the applicant's claims regarding apostasy under the refugee criterion at [41] with the applicant's claims of apostasy under the complementary criterion at [47] of the decision record. As a consequence, the IAA failed to constructively review the applicant's claim of apostasy under the complementary criterion, giving rise to reviewable error.
Under this ground of review, the Applicant takes issue with the reasoning of the Authority at paragraph [41], [46] and [47] of its reasons. I have set out those paragraphs earlier.
The Applicant contends that there was a failure by the Authority to consider his claim that he faced a real risk of significant harm as an apostate under the complementary protection criteria. He contended, inter alia, that when making a claim of apostasy in respect of the complementary protection criteria, he was entitled to expect that the Authority would squarely address it. In his submission, it is not enough for the Authority to simply dismiss his claim for protection as an apostate under the complementary protection criteria by applying its findings in respect of the application of the refugee criteria.
The Authority in dealing with this matter was clearly aware that it had to assess the Applicant's claims under the refugee criteria and the complementary protection criteria. In addressing the complementary protection criteria, the Authority expressly set out the definition of significant harm in paragraph [45] of its reasons. Then, at [46], the Authority noted that the Applicant had not made specific claims that require protection under the complementary protection criterion, separate from those claims made in relation to the refugee criterion.
The Authority ultimately relied upon the findings it made in paragraph [41] of its reasons in reaching its conclusions as to whether the Applicant ought to be afforded protection under the complementary protection criterion. Importantly, the findings at [41] encompassed findings of fact in respect of how the Applicant expressed his views, and whether any modification of that expression of views was required by him.
When the Authority came to consider the application of the complementary protection criteria to the Applicant's claims, it relied, inter alia, on the factual finding that it made. The claim for complementary protection in relation to the Applicant's claim of apostasy could not succeed given the factual finding made by the Authority.
There is not, in this case, any conflation of the refugee criteria and the complementary protection criteria. The claim had a factual foundation. The Authority made a finding of fact. It then relied on that finding to deal with the claim under the complementary protection criteria. That approach does not disclose error. That the Authority is entitled to reason in this way is well-established: see SZUJT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 612 at [59].
For all of the above reasons, this ground of review should also be dismissed.
disposition
Given the conclusions that I have reached above, I decline to grant all of the relief set out by the Applicant in the prayer for relief set out in the Application. There are two aspects of the prayer for relief, however, that warrant particular mention.
The application for a Writ of Habeas Corpus
In the Application, the Applicant seeks a Writ of Habeas Corpus directing the Minister to bring the Applicant before the Court to show cause as to the legality of the Applicant's detention from 17 March 2013 until the present day, first in closed detention and then in community detention. The Writ of Habeas Corpus directs the Minister to show cause as to the lawful basis for placing restrictions on the liberty of the Applicant which ordinary members of the public do not experience and to submit to the further orders of the Court as to the custody of the Applicant.
Habeas corpus has traditionally required detention or a physical restraint on liberty by a public officer or authority: Al-Kateb v Godwin (2004) 219 CLR 562. It does not apply, and cannot issue where an applicant seeking the remedy has already been released: Barnado v Ford [1892] AC 326, Lord Halsbury L.C at [333].
It has been recognised that there is a variety of views about the level of restraint on liberty necessary to attract the remedy of Habeas Corpus: see for example, the discussion in Ruddock & Ors v Vadarlis (2001) 110 FCR 491 by Black CJ (dissenting) at [68] – [89] and French J at [207] to [215].
In this matter, the Applicant contended that the Writ of Habeas Corpus could issue because he was initially subject to detention and subsequently continues to live in 'open detention'. .
There are two difficulties that confront the Applicant’s submission. First, while there may be debate about the level of restraint on liberty necessary to attract the remedy of Habeas Corpus, there does not seem to be any debate that in order for the Writ of Habeas Corpus to issue a person must be detained without lawful authority. In this matter, I have found, inter alia, that the Applicant was not detained unlawfully when he was subjected to immigration detention, initially on Christmas Island. Further, while the Applicant contended generally that his detention was unlawful, he has not engaged with the fact that section 189 of the Act required his detention given his circumstances (a non-citizen without a visa). In Commonwealth of Australia v AJL20 [2021] HCA 21 at [61], the High Court observed that sections 189 and 196 of the Act:
…require the segregation of unlawful noncitizens, both before they are admitted pursuant to a visa and in order to facilitate the removal if a visa is not granted. Given this statutory requirement, it matters not why an officer of the Executive might detain a person because, provided that person is in fact an unlawful noncitizen, the Parliament has required that he or she be detained. Because the evident intention of the Act is that an unlawful noncitizen may not, in any circumstances, be at liberty in the Australian community no question of release on habeas can arise.
There is then the Applicant’s submission that he continues to be detained – that he lives in ‘open detention’ – because of the conditions placed upon him as a result of the visa he holds. I have already made findings about this and rely on my earlier findings. To summarise, I was not taken to any evidence about these matters. I do not know what restrictions have been imposed on the Applicant such as to be able to properly assess whether any restriction on him might be unlawful such as to found relief for the grant of habeas corpus. Indeed, without evidence of the restrictions, it is not possible to assess whether such restrictions might be unlawful. Further, and on that point, to the extent that there might be restrictions on the Applicant as a result of him holding a visa, the Applicant did not engage at all with how or whether any such conditions or restrictions are unlawful such that a writ of habeas corpus might issue.
Finally, I observe that in this matter, the Applicant attended the hearing before me on Microsoft Teams, and the Court provided an interpreter for him so that the proceedings could be translated. Quite how it can be said that a Writ of Habeas Corpus should issue given that fact was not explained.
I therefore refuse to grant a writ of habeas corpus.
Claim for damages for false imprisonment
The Applicant also sought relief in the nature of damages for false imprisonment. I decline to make such an order. No case was properly pleaded to this effect. It is not said with any precision how a tort of false imprisonment is made out. It seems to be assumed by the Applicant that damages will automatically flow as a matter of course, though that is not necessarily the case. No evidence as to damage or damages was placed before the Court. I also refer to and rely on what I have already said in respect of the Applicant's contentions that his detention was unlawful. Finally, and although it has not been fully argued before me, it seems to me that any claim would be statute barred: see EHZ18 at [35]-[43]. Accordingly, I decline to grant the relief sought.
The Applicant has failed to make out any of the grounds of review. The Application should be dismissed.
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of His Honour Judge Blake . Associate:
Dated: 6 October 2021
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