APB17 v Minister for Immigration
[2018] FCCA 144
•25 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| APB17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 144 |
| Catchwords: MIGRATION – Protection visa – grounds of review made without particulars – none of the five grounds successful. |
| Legislation: Migration Act 1958 (Cth), ss.473DB, 473DC, 473DD |
| Cases cited: Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 |
| Applicant: | APB17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 282 of 2017 |
| Judgment of: | Judge Wilson |
| Hearing date: | 8 December 2017 |
| Date of Last Submission: | 8 December 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 25 January 2018 |
REPRESENTATION
| Applicant in person |
| Counsel for the First Respondent: | Mr C Tran |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 14 February 2017 is dismissed.
The applicant pay the costs of the first respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 282 of 2017
| APB17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed 14 February 2017 the applicant sought judicial review of a decision of the Immigration Assessment Authority (“IAA”) made on 6 January 2017 pursuant to which the IAA affirmed a decision of the delegate to refuse to grant the applicant a protection visa.
The applicant relied upon five grounds of application for judicial review including legal unreasonableness and a denial of procedural fairness (expressed in four different ways). The applicant did not provide particulars of those grounds. Most were very difficult to follow by reason of the fact that the applicant gave no detail of any of the grounds on which he relied.
As is my usual practice when an applicant is unrepresented, as was the case in this case, I required the applicant to go into the witness box and to affirm the truth of the version he gave me about what he said the IAA did wrong in this case. In essence, the applicant said he was dissatisfied that he was not treated fairly and that the IAA’s decision was adverse to him. Perfectly properly, Mr Tran of counsel for the Minister submitted that I was not permitted to undertake a merits review on the hearing of the judicial review application.
Synopsis
For the reasons that follow, I was not persuaded that any of the grounds advanced by the applicant in support of his application for judicial review had merit. In my judgment this application should be dismissed.
Short factual narration
To better understand the nature of the application brought, it is necessary for me to say a little about the background facts of this case.
The applicant was a citizen of Iran who arrived in Australia by boat on 6 February 2013. He applied for a protection visa on 29 June 2016. When completing part C of his irregular maritime arrival entry interview document, the applicant gave no information that suggested he left Tehran for a reason that would justify the grant of a protection visa. In response to question 1 he referred to his inability to study and attend sport. He denied being a member of a social or religious group. He denied having an association or involvement with any political group or that members of his family were involved in activities of a political nature. He denied having been arrested or detained by the police previously. In large measure, the statement that accompanied his protection visa application focused upon his interest in Christianity while living in Australia.
On the applicant’s behalf, written submissions were filed with the delegate in support of his application. Those submissions were filed after his interview with the delegate. In those submissions,
the applicant canvassed his conversion to Christianity, issues related to any forced return as an asylum seeker as well as anti-government views associated with his religious beliefs. The applicant claimed to fear harm on account of –
a)not engaging in compulsory military service;
b)a data breach;
c)his brother working as a tattoo artist in Turkey; and
d)his posting of a picture of the former Iranian flag on Facebook.
On 1 September 2016 the delegate refused the applicant’s application for a visa.
Upon referral to the IAA, on 6 January 2017 the IAA affirmed the delegate’s decision.
In the IAA
The IAA received material that the applicant put before it, notwithstanding the statutory constraints on it so doing by operation of ss.473DB, 473DC and 473DD of the Migration Act 1958 (Cth)
(“the Act”). Before me, the Minister did not take issue with the IAA receiving and acting upon the material provided by the applicant.
Mr Tran said, in written submissions filed ahead of the hearing before me, that this was not a case where the applicant could complain about the IAA not acting upon material provided to it.
Mr Tran submitted that the IAA’s reasons were “very careful and detailed”.[1] I agree. In rejecting the applicant’s claims, the IAA –
a)did not accept that the applicant was suffering from a condition or illness that, if he were returned to Iran, would amount to serious harm;
b)did not accept that the applicant objected to military service to such an extent that he would conscientiously object to it with the consequence that the IAA did not accept that he would face the repercussions which occasionally follow from evasion of compulsory military service;
c)was not satisfied the applicant had a genuine commitment to or interest in Christianity;
d)was not satisfied that the applicant’s posting on Facebook would come to the attention of the Iranian authorities;
e)was not satisfied the applicant would be harmed by the authorities by reason of his non-adherence to Shia Islam or his general dislike of the government;
f)was not satisfied the applicant would face a real chance of serious harm as a returning asylum seeker; and
g)rejected other assorted claims advanced by the applicant.
[1] First respondent’s written submissions filed 24 November 2017 at [9].
Mr Tran correctly pointed out that the grounds of review were very general and lacked particularity. He called in aid the decision of Gilmour J in WZAVW v Minister for Immigration and Border Protection[2] contending that by reason of that generality and lack of particularity in the grounds of review, on that basis alone the application for judicial review could have been dismissed. I have declined to dismiss this application for judicial review merely on the basis of the generality and absence of particularisation of the grounds of review. Instead, I have chosen to consider each of the grounds advanced by the applicant.
[2] [2016] FCA 760 at [35].
However, having done that in respect of each ground, in my view none had merit.
Ground 1
It is as well to record verbatim the applicant’s contentions in respect of his first ground. In it, the applicant contended that the IAA’s decision was –
legally unreasonable given my claims and circumstances and age, illogical, irrational, unfair and plainly unjust and lacks any intelligible justification as no other decision-maker would have come to the same conclusion on the evidence that was before the decision-maker.[3]
[3] Application filed on 14 February 2017.
Recognising that English was not the applicant’s first language and that he personally prepared the application for judicial review, it seemed to me that it was not appropriate to express any view about the formal wording used for the first ground. It was plain enough that the applicant was intending to convey the concept that in his view,
the IAA’s decision ought to have been set aside for legal unreasonableness amounting to jurisdictional error. The legal basis of such a claim was, as the Minister pointed out, Minister for Immigration and Citizenship v Li and Anor[4] and subsequent Full Court authorities such as Minister for Immigration and Border Protection v Singh,[5] Minister for Immigration and Border Protection v Stretton[6] and Minister for Immigration and Border Protection v Eden.[7]
[4] (2013) 249 CLR 332.
[5] (2014) 231 FCR 437.
[6] [2016] FCAFC 11.
[7] [2016] FCAFC 28.
On behalf of the Minister Mr Tran submitted that the test of unreasonableness is an objective one, citing the recent decision of the Full Court of the Federal Court in Shop, Distributive and Allied Employees Association v Australian Industry Group.[8] There, a
five-member Full Court pointed out that a decision-maker retains an area of decisional freedom or an area within which a decision-maker has a genuinely free discretion. The court also pointed out that legal unreasonableness ought not to be permitted to become a disguised vehicle for impermissible merits review.
[8] [2017] FCAFC 161 at [11].
I did not detect illogicality, irrationality, unfairness or injustice in the Tribunal’s reasoning as the applicant contended in support of ground 1 of his grounds of review. To the contrary, to my mind, the Tribunal gave active intelligent consideration to the claims advanced by the applicant. The fact that the applicant is dissatisfied with the consideration does not amount to jurisdictional error nor is it a proper foundation for judicial review of the IAA’s determination. I agree with Mr Tran’s submissions that the IAA’s decision was carefully reasoned as to each claim and also as to available country information. Far from the applicant being disadvantaged, in this case the IAA actually took into account new information that the applicant provided. Unusual as that step may have been, it did not operate to the applicant’s disadvantage. Despite the IAA considering new information, nevertheless the decision was adverse to the applicant. That is not a basis for this court’s interference with the proper discharge of the IAA’s statutory obligations.
In my view ground 1 had no merit.
Ground 2
Under the second ground of review, the applicant contended that the IAA did not accord him procedural fairness in that the IAA drew inferences and made findings of fact unsupported by probative evidence.
This ground was not the subject of particulars. The applicant did not identify the inferences that he sought to impugn nor did he identify the findings of fact that he said were not supported by probative evidence.
The Minister invited me to construe this ground as amounting to a
“no evidence” contention. While the applicant did not say as much, judicial review premised on the “no evidence” ground was considered by Murphy J in MZZUG v Minister for Immigration and Border Protection.[9]
[9] [2015] FCA 1151 at [59].
I do not agree that the IAA denied the applicant procedural fairness by drawing inferences and making findings of fact that were unsupported by probative evidence. To the contrary, I agree with the Minister’s contentions that each of the IAA’s authorities was supported by evidence. In paragraph 19 of his submissions, Mr Tran referenced seven illustrations. It is useful to record those. He said –
a)the IAA’s findings about the applicant’s medical conditions were supported by the medical evidence, as was recorded between paragraphs 12 and 15 of the IAA’s decision;
b)the IAA’s finding about military service was supported by country information, as was revealed by paragraphs 20 and 27 of the IAA’s decision;
c)the IAA’s finding about Christianity was based upon the IAA’s assessment of the applicant’s own evidence, as was revealed by the IAA’s considerations in paragraphs 31 to 33 of its reasons;
d)the IAA’s finding about the Facebook post was based on country information and the IAA’s own assessment of the post, as was revealed by paragraphs 34 to 36;
e)the IAA’s finding about the applicant’s non-Shia Islam views and anti-government views was based in part on country information, as was revealed between paragraphs 40 and 43 of the IAA’s reasons;
f)the IAA’s finding about the applicant’s return as a failed asylum seeker was based in part on country information, as was evident from paragraph 46 of the IAA’s reasons; and
g)the IAA did not accept other claims raised by the applicant of lesser importance, as was evident from paragraphs 50 to 52 of the IAA’s reasons.
In my view, there was no merit in the “no evidence” ground of review. For the reasons set out above, there was an abundance of evidence upon which the findings of the IAA were based. Those conclusions were proper and open. In my view the IAA made no error in the manner asserted by the applicant.
This ground failed.
Ground 3
Under the third ground, the applicant contended that the IAA denied him procedural fairness because it failed to recognise that his claims were particularly different to claims by other Iranian’s and that he was not only claiming to face further persecution if returned to Iran but that he would be killed after being tortured and put in inhumane prison conditions.
At the risk of repetition, no particulars were given of the contention under the third ground.
It seemed to me that ground 3 impermissibly bundled into one composite ground his contentions about the so-called aspects of differentiation between the applicant’s claims and those of other unidentified Iranians whose claims were not specified. In other words, it was not possible upon a fair reading of ground 3 to ascertain which of the applicant’s claims were objectively different to claims made by other Iranians (to whomever that may have been a reference).
For reasons already recorded, it seemed to me that the IAA gave active intellectual consideration to each of the applicant’s claims. I was unable to detect any jurisdictional error by the IAA, whether for the reasons advanced in ground 3 or otherwise.
To the extent that the applicant was in reality making a complaint about the IAA’s consideration of “inhumane prison conditions”, the IAA found that the applicant would face questioning upon his return. However, the IAA found that any such questioning was the likely extent of the interaction with authorities the applicant would encounter, and the IAA’s reasoning on the issue was addressed between paragraphs 48 and 49 of its decision as well as at paragraph 62.
To the extent that the applicant was expressing a grievance about the IAA’s consideration of his submissions about any forcible return to
Iran, the IAA addressed the issue between paragraphs 47 and 49 of its reasons finding that the applicant would come to the attention of authorities for questioning, but that any such attention was likely to go no further than questioning.
To my mind, the IAA actively engaged in a consideration of the matters that fell for its determination including issues related to inhumane prison conditions, a breach of the international Convention on Civil and Political Rights as well as the International Convention Against Torture.
To my mind, this ground failed.
Ground 4
Under ground 4 the applicant contended that the IAA denied him procedural fairness by failing to reach a requisite state of satisfaction concerning his claims for protection.
In the absence of particulars, it was none too easy to comprehend precisely what the applicant asserted under that ground.
The applicant appeared to challenge the process of reasoning by which the IAA addressed the applicant’s claims. As has been the law in Australia for more than 20 years on point, judicial review is not merits review and it is not the function of this court to assess the merits of the applicant’s claims, a matter of very considerable veneration emerging from, among others, the decision of the High Court of Australia in Minister for Immigration and Ethnic Affairs v Wu Shan Liang.[10]
[10] (1996) 185 CLR 259.
But it could not be said that IAA failed to comply with its obligations in relation to procedural fairness set out in division 3 of part 7AA of the Act.
In my view, ground 4 was not made out.
Ground 5
Under ground 5 the applicant contended that the IAA denied him procedural fairness because the IAA constructively failed to exercise jurisdiction.
It was almost impossible to understand what the applicant contended by that. For reasons already given, in my view the IAA considered all matters that fell for its decision and gave active intellectual consideration to the claims made by the applicant. I detected no jurisdictional error in the reasoning of the IAA.
Conclusion
As the IAA refused to grant a protection visa and as I have found there to be no basis for interfering in the IAA’s decision, the decision of the delegate stands with the consequence that the applicant’s application for a protection visa remains refused.
I dismiss this proceeding and order the applicant to pay the Minister’s costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Associate:
Date: 25 January 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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