Apo17 v Minister for Immigration

[2019] FCCA 486

FEDERAL CIRCUIT COURT OF AUSTRALIA

APO17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 486

Catchwords:
MIGRATION – Application for protection visa – adverse credibility findings – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.46A, 473CB, 5H(1), 5J, 36(2)(aa)

Cases cited:

Attorney-General (NSW) & Quin (1990) 170 CLR 1

Minister for Immigration and Ethnic Affairs & Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: APO17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 116 of 2017

Judgment of: Judge Egan

Hearing date: 15 February 2019

Date of Last Submission: 15 February 2019

Delivered at: Brisbane

Delivered on: 15 February 2019

REPRESENTATION

Counsel for the Applicant: Mr L. Burrow

Solicitors for the Applicant: Arc Migration

Counsel for the First Respondent: Mr J. Byrnes

Solicitors for the First Respondent: Minter Ellison

IT IS ORDERED THAT:

1. The amended application filed on 1 September 2017 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 116 of 2017

APO17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Iran who arrived in Australia as an unauthorised maritime arrival on 25 August 2012. On 3 September 2015, the department advised the applicant that the Minister had lifted the Section 46A bar, consequent upon which the applicant was invited to apply for a Temporary Protection visa or a Safe Haven Enterprise visa (Subclass 790). The applicant applied for a Temporary Protection visa on 30 September 2015. The application for the visa included what was alleged to constitute a translation of a copy letter asserted to be written by a lawyer called Aslani, dated 26 July 2015.

2. On 10 February 2016, the applicant attended an interview with the delegate.  After that interview, the applicant’s representative provided the delegate with further information including two copy documents, each entitled “Statement Sheet”.  On 31 August 2016, the delegate refused to grant to the applicant the visa.  The matter was then referred to the Immigration Assessment Authority (‘the Authority’).  The applicant did not provide any new information to the Authority.  On 19 January 2017, the Authority affirmed the delegate’s decision.

3. The applicant filed an originating application on 14 February 2017.  The applicant filed an amended application for review on 1 September 2017.  The applicant no longer relies upon ground 2 of the amended application.  Grounds 1 and 3 of the amended application for review are as follows:

   1. The decision maker failed to take into account, or give actual as opposed to superficial consideration of, relevant information, including the documentary material supplied

   …

   3. The decision was unreasonable, in particular:

   a. The adverse credibility and plausibility findings were unsupported, irrational and unreasonable.

   b. Disregarding the documentation relating to the penalty and prosecution of the Applicant [CB 131].

4. The first respondent, by Mr Burns of counsel, submitted that both grounds 1 and 3 are attempts to seek impermissible merits review by this Court. [1] At [3] of its reasons, the Authority recorded that it had had regard to the material referred to it by the secretary pursuant to the provisions of section 473CB of the Migration Act1958 (Cth) (‘the Act’).

   [1]     Attorney-General (NSW) & Quin (1990) 170 CLR 1; Minister for Immigration and Ethnic

5. At [5] of its reasons, the Authority set out the applicant’s claims for protection as follows:

   ·On 18 or 19 May 2012 the applicant accompanied his uncle to a party at the house of ‘M’, female friend of the applicant’s uncle. At around 7:30 pm the house was raided by a group of men the applicant believes were M’s husband, her brothers and members of the Basij.

   ·The applicant and his uncle managed to flee from the house and drive to a friend’s villa. The applicant contacted his brother who told him that under Iranian law he would be accused of adultery and stoned to death. He advised the applicant to leave Iran and go to Australia. The applicant departed Iran a few days later.

   ·About twenty days after departing Iran the applicant learned that his uncle had been killed in a park by men he believes were the same ones who raided the house party. He fears either being killed by the same people who killed his uncle or being handed over to Iranian authorities and stoned as an adulterer.

   ·His ex-wife’s family has said they will kill the applicant for putting her through such a situation.

   ·He was born into a Shia Muslim family, but is not a practising Muslim.

6. When considering issues relating to whether the applicant had a well-founded fear of persecution if returned to Iran, the Authority noted the provisions of section 5H(1) and 5J of the Act. At [8-17] of its reasons, the Authority dealt with the claims made by the applicant. The Authority found that the claims made by the applicant were at times implausible, and at other times inconsistent. At the initial interview, the applicant at [10] of the authority’s reasons was recorded as not being able to provide a plausible explanation as to why, notwithstanding the Iranian authorities’ well-known strict views on immoral behaviour, he had had no qualms about attending a party with three women unknown to him, his response being that at the time he didn’t think that there would be any problems.

7. It was further noted by the Authority that the applicant could not also explain why, if he had had no such concerns, he had said that he had never the less parked his car some distance away from the house owned by the woman “M”, stating that he did so because people knew which car belonged to which house.  At [11] of its reasons, the Authority noted that the applicant had provided vague information about the men who had raided the party allegedly attended by him.  At the initial interview, the applicant was noted by the Authority as being unable to provide a credible explanation as to how he knew who those men were, or how he knew that they were Basij, if he hadn’t seen them.

8. The applicant was recorded as having stated that on hearing a knock at the door, the woman “M” went to open it, the applicant stating that he heard her say:

   Guys, you need to leave right away.  My husband is here.  My brothers are here.

9. At [12] of its reasons, the Authority recorded that the applicant claimed that he then fled to a friend’s villa rather than going home to his parents’ house because he feared that the men would look for him at his home on the basis that they may have ascertained his identity and address from the women at the party.  The Authority noted that the applicant had stated that he did not know the women at the party, and that he had not met them previously, yet that the applicant had stated that everyone knew him because he lived in a small town. 

10. At the initial interview, the applicant stated that he did not warn his parents that men might come to their house looking for him as a result of his having attended the party, as he was fearful of public shame.  The Authority did not accept as plausible the explanation that the applicant gave as to how the men could have ascertained his identity and address.  It also did not accept as plausible that despite the risk of shame if the applicant had returned home, they would not have warned his parents of such threat of harm. 

11. At [13] of the Authority reasons, the Authority did not accept as plausible the applicant’s account of his attendance at the party, of the alleged raid on the party, of the pursuit by unknown men, or of the applicant’s escape from his pursuers.  The Authority found that the applicant did not attend a party as claimed, that he was not pursued by unknown men, and that threats against him had not been made to his family in Iran.  The Authority was also not satisfied that the applicant faced a real chance of harm in Iran from M’s husband, brothers, or other unknown men, including the Basij, due to the alleged attendance by him at any party at M’s house. 

12. At [14] of its reasons, the Authority noted that the applicant claimed that around three weeks after the incident, his uncle was murdered, providing a copy of his uncle’s death certificate in support of that allegation.  The Authority was not prepared to accept that there was any connection between any alleged murder of the uncle, as accepted by the authority, and the applicant’s attendance at any party.  The applicant was noted as having divorced his former wife in 2013. 

13. The Authority found that the applicant had not been threatened by members of his ex-wife’s family, and it was not satisfied that he faced a real chance of harm from his ex-wife’s family.  At paragraph [16] and [17] of the Authority reasons, the Authority dealt with the claim on the part of the applicant that he feared punishment for having committed adultery should he be returned to Iran. 

14. His claims were supported by the alleged letter from a lawyer which appeared at page 97 of the Court book, as well as the two “statement sheets” which respectively appeared on pages 129 and 130 of the Court book.  At [16] of its reasons, the Authority placed no weight on the letter as it only expressed an opinion about a possible punishment for adultery, if established.  It did not indicate that a charge of adultery had been brought against the applicant.  At [17] of its reasons, the Authority recorded that the applicant had claimed that shortly after he departed Iran, his parents had received a Court summons. 

15. The applicant stated that he did not know about the summons until recently as his parents had been trying to protect him.  It was also recorded that in response to a request from the delegate to provide the summons, the applicant provided two unsigned and undated documents entitled Statement Sheet.  The Authority referred to country information to the effect that any summons would include the name of the defendant, the date on the document, the reason for summoning the defendant, the place at which the defendant should appear and the consequences in the event that the defendant did not appear at Court. 

16. The Authority found that neither statement sheet specified those details.  The Authority further found that neither document constituted a Court summons and placed no weight on them.  The Authority also was not satisfied on the basis of the letter from the lawyer, Mr Aslani, that the applicant faced a real chance of harm from Iranian authorities as a result of being possibly suspected of committing adultery, or for any other reason. 

17. At [18] of its reasons, the Authority found that although the applicant was born into a Shia Muslim family, country information was such that there was a lack of religious observance throughout Iran in a strict observance sense, and that in the light of lack of religious observance, there was no risk of harm from government authorities or the wider community.  By reason of same, the Authority did not consider that the applicant would face a real chance of harm as a result of any such lack of religious observance. 

18. The Authority also found that the applicant did not have a well-founded fear of persecution. As to the complementary protection provisions of the Act, the Authority found that the applicant did not face a real risk of significant harm if he was returned to Iran. The Authority was not prepared to accept that the applicant attended any party as claimed by him, or that he has been pursued by unknown men, or that threats had been made against him or to his family.

19. It closely examined the earlier evidence in support of the complementary protection criteria in [23-27 inclusive] of the Authority reasons, relying as it did on earlier findings made by it. The Authority considered the applicant’s claims both individually and cumulatively, and found that there were no substantial grounds for believing that as a necessary and foreseeable consequence of being returned to Iran that the applicant would suffer a real risk of significant harm. The Authority found therefore that the applicant did not meet the section 36(2)(aa) criteria.

20. It cannot be said that no other rational or logical decision-maker could not have made the same decision as the authority. [2]

    [2]         See Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130].

21. Neither could the decision of the Authority be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such concepts were considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said as follows:

    [66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness134. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power135. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

22. No jurisdictional error on the part of the Authority has been established. 

23. The application is without merit and is dismissed. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:   

Date:  1 March 2019

    Affairs & Wu Shan Liang (1996) 185 CLR 259