ANI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2019] FCCA 3968

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANI19 V MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR [2019] FCCA 3968

Catchwords:
MIGRATION - IAA – citizen of Iran – no arguable case – application dismissed under r 44.12

Legislation:

Federal Circuit Court Rules 2001 (Cth); r 44.12

Migration Act 1958 (Cth); Part 7AA, ss 5H, 5J, 26, 36, 473CB, 476

Cases cited:

Northern Territory v Sangare [2019] HCA 25

Applicant: ANI19

First Respondent:	MINISTER FOR IMMIGRATION, citizenship, migrant services and multicultural affairs
Second Respondent:	Immigration assessment authority

File Number: SYG 290 of 2019

Judgment of: Judge Street

Hearing date: 4 September 2019

Delivered at: Sydney

Delivered on: 4 September 2019

REPRESENTATION

Applicant: ANI19 in person

Solicitor for the First Respondent: Ms J. Noakesmith

Second Respondent: No appearance

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant pay the first respondent’s costs fixed in the amount of $3,737.00.

4. The transcript of the published oral reasons may be released to any party if so requested without settling of the published oral reasons.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 290 of  2019

ANI19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

And

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT
(settled 25 July 2023)

JUDGE STREET

Background

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (‘the Act’) under Part 7AA in respect of a decision by the Immigration Assessment Authority, made on 10 January 2019, affirming a decision of the Delegate not to grant the applicant a Safe Haven Enterprise Visa. The applicant was found to be a citizen of Iran and his claims were assessed against that country. The applicant claimed to fear harm, in summary, by reason of his grandfather and uncle’s involvement with the Shah’s intelligence agency and claimed that the family have been watched by the Iranian regime.

2. The applicant claims to have made statements against the regime when he was in high school and at university during the Green Movement in 2009 and also prior to the elections in 2013.  The applicant alleges he was detained for two weeks after attending a demonstration in 2009 and he was beaten and threatened with execution and made to sign an undertaking that he would not be involved in further political activity.  The applicant claims he signed that undertaking not to be politically active.  The applicant alleges there was a record of his political activities and that he has been seen to be anti-regime and that is why he tried to seek asylum in Australia and he fears he will be tortured and executed by the authorities.

3. The applicant was born in a Shia family, but is agnostic, and of Kurdish ethnicity and fears harm because of his ethnicity, his agnostic beliefs, his family connections to the Shah’s intelligence agency and the perception that he is anti the regime.  The applicant arrived in Australia as an unauthorised maritime arrival on 26 July 2013.  On 23 October 2018 a delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise Visa.  On 29 October 2018 the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review.  The letter provided an attached fact sheet and practice direction, giving the applicant an opportunity to put on new information and submissions.  No such documents were provided to the Authority.

4. The Authority, in its reasons, identified the background to the visa application and had regard to the material given by the Secretary under s 473CB of the Act. The Authority identified that there was, in fact, a submission received on behalf of the applicant on 19 November 2018 and the Authority found this not to be new information and took the same into account. The Authority identified and summarised the applicant’s claims. The Authority referred to the applicant’s claims concerning the intelligence agency and that since the revolution his family had been watched by the regime. The Authority did not accept the assertion that there was a book in existence, given the clandestine regime, that lists the names of the intelligence agency agents.

5. The Authority made reference to the absence of any name in relation to the book or detail about its content or how the cousin came to find out about it and did not accept that such a book exists.  The Authority referred to the applicant’s father keeping a job as an accountant in the city council until he retired and that his father had worked under the new regime.  The applicant made reference to a letter that the father was given in relation to a choice as to whether he remained in the regime.  The Authority found the choice identified in the letter was inconsistent with the applicant’s claims that the family was considered to be against the new regime.

6. On the information before the Authority, the Authority was not satisfied the applicant’s family was seen as a threat or kept under observation and warned off attending political events by the Iranian authorities because of family links to the intelligent agency or for any other reason.  The Authority referred to the applicant’s claims in relation to school and university and his claim concerning an undertaking that he was required to sign.  The Authority referred to the applicant having a very superficial knowledge of political matters in Iran and referred to the applicant’s objections to the high rate of unemployment, poor economy, government corruption and lack of choices and being forced to accept the Islamic way of life and that he did not go into any detail about any of them or point as to how they affected him or those around him.

The IAA

1. The Authority referred to the applicant’s claims concerning secretly writing messages around his high school, but found they did not give rise to raising awareness of any wrongdoings of the regime.  The Authority found the lack of detail in the Safe Haven Enterprise Visa interview was concerning in relation to the applicant’s claims in respect of political opinions and activities.  The Authority found there were other aspects of the applicant’s account of his political activity that the Authority found unconvincing.  The Tribunal identified the information that was not included in the applicant’s alleged political activities and referred to the computing course that the applicant pursued and the limited detail about his activities of the Mousavi election campaign, despite being asked about it.

2. The Authority expressed concern in relation to the basic information that the applicant had not provided.  The Authority found the applicant’s claims as to his political activities at school and university and work for the Mousavi campaign were unconvincing.  The Authority was not satisfied the applicant missed school to evade the ‘moral police’ or that he was apprehended by the authorities.  The Authority was not satisfied the applicant said or did anything that attracted the adverse attention of the Iranian authorities when he was at university.  The Authority was not satisfied the applicant worked for the Mousavi election campaign.  The Authority referred to country information in relation to the June 2009 presidential election and the Green Movement.

3. While it was prepared to accept that the applicant started gathering in front of the election office without suggesting he directed any activity the Authority found that the applicant did not play a leading or organising role in respect of that gathering.  The Authority referred to the applicant’ claims in relation to being apprehended after a week of protesting when he was walking home from a protest.  The Authority identified the inconsistency between the applicant’s information and country information and referred to the applicant not claiming to have been apprehended at home but, rather, on a public street and referred to the applicant saying that there were 30 or 40 protesters around and referred to the country information that the response to the Green Movement was immediate and overt.

4. Taking into account the country information, the Authority was prepared to accept that as a result of the applicant’s participation in the protests he was briefly apprehended, assaulted and made to sign an undertaking not to continue to protest.  The Authority found that his claims to have been detained for two weeks, tortured and threatened with execution if he protested again are embellishments and did not accept them.  The Authority referred to the applicant’s claims in relation to his involvement in the elections when he suggested that he was talking to people in public and noted that he does not claim to have expressed his views in an organised or planned way as part of a political campaign or in the manner of a public protest.

5. The Authority referred to the applicant’s claim that his name had been seen in the intelligence office and referred to country information and found that the applicant’s claim in relation to his name being seen was so vague it lacks credibility.  The Authority referred to the fact that after the elections were held on 14 June 2013 the applicant left Iran on 9 July 2013 using his own passport and that he did not change his address or take any evasive action.  Whilst the Authority accepted the applicant had expressed cynicism about the 2013 election, the Authority was not satisfied the applicant’s behaviour brought him to the adverse attention of the Iranian authorities.

6. The Authority referred to the applicant’s posts on Facebook and noted that the Facebook account is not in the applicant’s full name and noted that there was a small amount of material on the Facebook page and found that, while it set to “public”, the same had a very low reach and engagement.  The Authority took into account the applicant does not claim any member of his family received criticism, warnings or any other type of adverse action from the Iranian authorities about his Facebook activity.  It was in these circumstances the Authority found the Iranian authorities are either unaware of or unconcerned with the applicant’s Facebook activity.

7. The Authority referred to the applicant’s claim to being born in a Shia family but to be agnostic and was not satisfied that the applicant has any interest in converting to Christianity and was not satisfied the applicant had attended a Christian church.  The Authority referred to the data breach and was not satisfied that it revealed any details to the applicant’s protection claims or any contact information.  The Authority did not accept that the applicant’s behaviour prior to the 2013 election attracted the adverse attention of the authorities, nor that the Ettala’at or any Iranian Authority wanted to apprehend the applicant.  The Authority did not accept the applicant had a political profile and was not satisfied the applicant has a record of political activity in Iran, except that he was involved in the 2009 demonstrations, as were millions of other Iranians.

8. It was in these circumstances the Authority was not satisfied there is a real chance the applicant will be harmed if he returns to Iran because of his actual or imputed political opinion, based on his actual perceived links to the intelligence agency, his activities at school or university, his involvement in the Green Movement and/or comments he made about the 2013 elections.  The Authority referred to the applicant’s Kurdish ethnicity and referred to country information.  The Authority noted the applicant does not claim to have any links to any Kurdish political groups and was satisfied that the applicant has not.  The Authority referred to a post with the applicant under a flag associated with the Kurdish independence on his Facebook page, but found that does not equate to agitating for Kurdish cultural or political rights in a way that threatens the constitutional foundations or territorial integrity of Iran.

9. The Authority found the photo was not accompanied by any message calling for change.  The Authority found that the Iranian authorities are unaware of or unconcerned with the applicant’s Facebook activity.  The Authority was not satisfied there is more than a remote possibility of the applicant’s Kurdish ethnicity contributing to a perception that he is anti-regime.  The Authority referred to the Iranian constitution granted equal rights to all ethnic minorities and referred to his father having a job before he retired and his brothers-in-law having government jobs and his brother being employed and the applicant having obtained a university degree.

10. The Authority also took into account the applicant does not claim to have been discriminated against or harmed because of his ethnicity.  It was in those circumstances the Authority was not satisfied there was a real risk the applicant will be harmed if he returns to Iran because of his ethnicity.  The Authority referred to the applicant’s claimed fear of harm in respect of his agnostic beliefs and referred to country information.  The Authority was not satisfied that if the applicant returns to Iran he would make his agnosticism known openly or that his reason for not doing so would be a fear of harm.  The Authority accepted the applicant may be at some disadvantage in respect of some types of employment, but was not satisfied this would amount to serious harm or that he would be precluded from earning a living.

11. The Authority was not satisfied there is a real chance the applicant will be subject to any other kind of harm because he is agnostic or that there is any other than a remote chance that his agnosticism would contribute to a perception that he is anti-regime.  The Authority did not accept the applicant has a record of political activity in Iran, except that it is known he participated in the Green Movement protests along with millions of others.  The Authority was not satisfied there is more than a remote chance that the Iranian authorities would impute the applicant with anti-regime beliefs for having lived in Australia or having applied for asylum here.

12. The Authority was not satisfied there is more than a remote chance that upon the applicant’s return the authorities would detain him, question him, inquire into his social media activity or harm him in any way because of a record of political activity in Iran, having sought asylum in Australia or for any other reason.

13. The Authority referred to the applicant's claims that he will be harmed if he continues to express his political opinion.  The Authority referred to having accepted that the applicant may have signed an undertaking in 2009 not to continue to protest, but the Authority had not accepted that he was threatened with execution and that he can participate in any further political activity. 

14. The Authority also took into account that apart from a general dislike of the Iranian regime, it is not apparent what the applicant's person opinion is, or that he would express it if not for claim of fear of reprisal.  The Authority took into account that the applicant does not appear to have been associated with my political or cultural group, except for a brief low-level involvement in the Mousavi election campaign which the Authority rejected and the only time he protested was at widely attended 2009 protests, and has not displayed more than a superficial knowledge of any political issues that he complains about. 

15. The Authority did not accept that his family were under surveillance or were warned off engaging in political activity because of links to the intelligence agency or that the applicant was under surveillance in high school, was warned not to express political opinions at university, or that he was threatened with execution in 2009 if he ever engaged in political activity again. 

16. The Authority found that there is no evidence the applicant was trying to build a public following.  In relation to his posts, the Authority did not accept the applicant was genuinely afraid that the Iranian authorities were monitoring his Facebook page or that he had previously refrained from posting material or otherwise engaging in political activity in Australia out of fear. 

17. The Authority found the applicant's recent Facebook activity had be contrived, but took the statement into account.  Considering all the circumstances, the Authority was not satisfied that if the applicant returns to Iran he would have a genuine intention or desire to be political active beyond a low-level activity that he has previously engaged in.  It was in those circumstance the Authority was not satisfied the applicant would express political views in a more controversial or conspicuous way than he has done if he returns to Iran, or that his reason for not doing so would be fear of harm. 

18. The Authority referred to country information.  The Authority was not satisfied the applicant would come to the attention of the Iranian authorities since leaving Iran.  The Authority was not satisfied that there is anything more than a remote chance of the applicant being subjected to treatment that would amount to serious harm, even if he were to occasionally express his opinion, including by participating in posts to engage in Facebook activity as he has in the past.  The Authority was not satisfied there was a real chance the applicant would be seriously harmed if he returns to Iran for expressing his political views, taking into account his Kurdish ethnicity.  Considering the applicant's claim as a whole, the Authority was not satisfied there was a real chance that the applicant would be seriously harmed, and in the reasonably foreseeable if he returns to Iran for his actual or imputed opinion, actual or imputed religious beliefs, his Kurdish ethnicity, or having sought asylum in Australia separately or cumulatively. 

19. The Authority found the applicant does not have a well-founded fear of persecution within the meaning of s 5J of the Act. The Authority found the applicant did not meet the criteria for the requirements of the definition of refugee in s 5H(1) and found the applicant did not meet the criteria in s 36(2A). The Authority turned to the issue of complementary protection and didn’t accept that there are substantial grounds for believing as a necessary and foreseeable consequence if the applicant when he returned to arrive from Australia there is a real risk the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria in s 36(2)(aa) and affirmed the decision under review.

Hearing and Findings

1. These proceedings were commenced on 13 February 2019. On 7 March 2019 the Registrar of the Court made orders giving the applicant an opportunity to put on an amended application affidavit in evidence and submissions. The applicant did not do so. At the commencement of the hearing the Court explained to the applicant the nature of the show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (‘Rules’), and the applicant confirmed he understood the nature of the hearing as explained by the Court.

2. From the bar table, the applicant maintained that he would be harmed if returned to Iran and, in particular, because of Facebook posts.  This was an issue expressly considered by the Authority, and the Authority made adverse findings that were open to the Authority.  The applicant also claimed that he would be exposed to harm because of his family's connection to the Shah.  This was a reference to the intelligence agency of the Shah which was a claim that the Authority clearly identified and made adverse findings in relation to the applicant's claims.  As summarised above, those adverse findings included finding the applicant's father was given a choice in relation to the new regime which was inconsistent to the applicant's claims that his father continued to work until retirement. 

1. The applicant also referred to his political claims from when he was young and at university.  These are claims that were referred and considered by the Authority, and not an extending acceptance of some level of involvement by the applicant.  The Authority made logical and rational findings that were open to it dispositive of the applicant's claim in that regard.  From the bar table, the applicant made reference to having photographs which the applicant identified had recently been taken by him of his sister.  Those photographs were not ones that were in evidence before the delegate or before the Authority.  The Court is not in a position to make new findings in respect of the merits of the applicant's claims. 

2. The Court explained to the applicant that the photographs in those circumstances were not relevant or admissible as they went to the merits of the applicant's claims.  The applicant's submissions from the bar table otherwise invited the Court to engage in merits review.  Nothing said by the applicant from the bar table identified any arguable case of relevant error by the Authority.  The ground in the application is a bare request for the quashing of the decision and does not identify any jurisdictional error. On the face of the Authority’s reasons, as summarised above, the Authority made dispositive findings in respect of the whole of the applicant's claims that were open to the Authority. 

3. Further, the Authority's reasons correctly identify the relevant law, and on the face of the material before the Court, there was a real and meaningful engagement by the Authority with the applicant's claims and the submission that was expressly referred to in the Authority's reasons. Nothing said by the applicant identifies any arguable case of relevant error. The application does not raise an arguable case for the relief claimed and the Court is satisfied that this is an appropriate matter to exercise the Court's powers under r 44.12 of the Rules. Accordingly, the application is dismissed under r 44.12 of the Rules.

1. It is a matter for the Minister whether the Minister seeks to enforce the costs order.  Even if you did not have funds, I would still make the costs order because impecuniosity is not a reason for not making the costs order in favour of the successful party consistent with the principles identified in the High Court, by the High Court in Northern Territory v Sangare [2019] HCA 25.

2. Accordingly, the Court orders the applicant to pay the first respondent's costs fixed in the sum of $3,737.  The Court orders that the transcript of these oral published reasons may be released to either party, or at least to any party upon request, and that the transcript will not be further settled. 

3. The Court received a request for the settled transcript of the oral reasons on 18 July 2023 and the Court received the draft transcribed reasons on 25 July 2023.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the oral published reasons for judgment of Judge Street.

Associate: 

Date: 25 July 2023