AQF17 v Minister for Immigration
[2017] FCCA 2510
•17 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AQF17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2510 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – consideration of s 473DD criteria – no relevant information identified that the Authority disregarded – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DC, 473DD, 476 |
| Applicant: | AQF17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 446 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 17 October 2017 |
| Date of Last Submission: | 17 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 17 October 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr H Ford Hugh Ford Solicitor |
| Solicitors for the Respondents: | Ms M Donald Sparke Helmore |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 446 of 2017
| AQF17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 18 January 2017 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 arrived in Australia as an unauthorised maritime arrival on 12 October 2012. On 21 April 2016, the applicant lodged an application for a Safe Haven Enterprise visa.
The applicant claimed to fear harm by reason of him being of interest to the Basij after he made a complaint against them in 2007 following being physically harmed by them, resulting in hospitalisation when he was pulled over at a roadblock with his girlfriend in Tehran. The applicant alleged that the Basij recorded him in a café, talking to friends claiming that he no longer believed in Islam but only in Allah. The applicant alleged the Basij wanted to prosecute and execute him because he is no longer a Muslim.
The applicant informed the delegate that he had obtained a genuine Iranian passport in his own name in 2005 which expired in 2010. The applicant claimed that he had used his passport to travel from Iran to United Arab Emirates and then onto Indonesia onto Australia. The applicant informed the delegate that he renewed his passport when it expired in 2010 and used his new passport in 2012 to travel legally to Indonesia, but alleged his passport was thereafter stolen or fell out of his pocket.
The delegate accepted the applicant’s claims in relation to encounters with the Basij, but did not accept that the applicant was of or remains of any significant interest to the Iranian authorities. On 29 November 2016, the delegate provided reasons for finding that the applicant failed to meet the criteria for the grant of the visa.
The Authority’s decision
On 5 December 2016, the Authority wrote to the applicant, identifying that the matter had been referred to the Authority for review. The letter identified that there are only limited circumstances in which the Authority could consider new information. The letter provided an attached fact sheet and practice direction, providing the applicant with an opportunity to put on new information and to put on submissions.
The Authority, in its reasons on 18 January 2017, noted the applicant’s visa application background. The Authority noted, having regard to the material referred, under s 473CB of the Act. The Authority also identified a submission made on behalf of the applicant by the applicant’s migration agent on 28 December 2016. The Authority made reference to the submissions including information from a March 2016 report and the criteria under s 473DC(1) of the Act and why it should be received by the Authority. The Authority found that the requirements of s 473DD(b) and (a) of the Act were not met and refused to receive the extract from the March 2016 report. The Authority otherwise had regard to the submissions made on behalf of the applicant.
The Authority identified the applicant’s claims and background. Whilst the Authority was prepared to accept that an incident occurred in 2007 where the applicant was stopped by the Basij when walking with his girlfriend, the Authority was not satisfied that the incident happened as described in the applicant’s statement of claims and protection visa interview. The Authority found the applicant embellished his claims in relation to the Basij attack on him. The Authority identified a matter that the applicant failed to mention in relation to lodging a case against the Basij. The Authority was not satisfied the applicant was attacked in the way described. The Authority did not accept the applicant was threatened by the Basij a few days later and was not satisfied the applicant would continue to be of interest to authorities as a result of being stopped by them once in 2007.
The Authority found the applicant was not consistent in his description of the other occasion upon being stopped. The Authority did however, accept that the applicant was on one occasion, stopped by the police or a law enforcement unit because of his appearance and detained briefly, given a warning and then released. The Authority observed this regularly happens in Iran and was supported by country information before the delegate.
In relation to the incident concerning the applicant’s belief in Islam, the Authority found inconsistencies between his statement of claims and the protection visa interview, including the reason why he left his sister’s house, initially, this was because the Basij broke in however, in his protection visa interview, the applicant said her place was too small. The Authority referred to a person the applicant claimed to have known and then said he did not know him until introduced by a smuggler. The Authority referred to those inconsistencies and was not satisfied that the events happened as claimed. The Authority was not satisfied the Basij would use their resources to pursue someone to Bandar Abbas for the mere fact that they were overheard to say they no longer believed in Islam.
The Authority accepted that the applicant no longer believes in Islam yet believes in God. The Authority was not satisfied that the applicant was recorded by the Basij in a coffee house stating he no longer believed in Islam and was pursued by the Basij because of that. The Authority was not satisfied the applicant departed Iran for the reasons claimed.
Assessment of refugee convention criteria
The Authority identified the relevant law. The Authority found that it did not accept the applicant was injured by a group of Basij with machetes or army knives, that he attempted to make a case against them in court and was subsequently threatened by them to take no further action against them or he would be seriously harmed.
The Authority did not accept the applicant was recorded by the Basij in a coffee house saying that he no longer believed in Islam and was then pursued by the Basij because they wanted to execute him for being an infidel. The Authority was not satisfied the applicant has a real chance of persecution on the basis of any of these claims. The Authority accepted that the applicant may be stopped by police when returned to Iran, but did not accept there is a real chance the applicant will be seriously harmed. The Authority was not satisfied the applicant faces a real chance of persecution as a non-practising Muslim.
In relation to being a failed asylum seeker, the Authority was not satisfied that the applicant had a profile as a political activist or demonstrator before he left Iran and found he had not been politically active against the Iranian authorities in Australia. The Authority accepted the applicant may be questioned or even detained for a brief period of time, but did not accept that he would be monitored on return to Iran because he does not have a profile. The Authority was not satisfied that the questioning and brief period of detention would amount to serious harm, and found that the applicant does not have a well-founded fear of persecution.
The Authority found the applicant did not meet the requirements of the definition of “refugee” under s 5H(1) of the Act and found the applicant did not meet the criteria under s 36(2)(a) of the Act.
Assessment of complementary protection criteria
The Authority was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned from Australia to Tehran, there is a real risk the applicant will suffer significant harm. The Authority found the applicant failed to meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.
Before this Court
The grounds in the application are as follows:
1. The Assessment Authority (IAA) failed to take into account relevant considerations while deciding the matter.
2. The IAA did not consider the relevant evidence and did not give due weight to the evidence available to determine if there are genuine threats to the life of the applicant if deported back to Iran.
3. From the decision it appears that the IAA gave undue weight to minor inconsistencies in applicant's statements and raised questions on the credibility of the applicant.
4. The IAA in paragraph 5 made a jurisdictional error by not taking into account the relevant country information regarding current Human Rights situation in Iran which creates exceptional circumstances to consider the report.
5. In paragraph 12, the IAA again raised the issue of inconsistencies in the applicant's statements without taking into account the fact that how brutally the applicant was tortured by Basij. The act of IAA to ignore these facts amounts to an error of law. IAA was more concerned about why the applicant was not able to provide documentary evidence of his complaint against Basij and inconsistencies in the applicant's statements regarding detention and warnings given by Basij.
6. The IAA in paragraph 14 accepted the country information and also that Basij stopped the applicant in the past when he was walking with his girlfriend but in the same paragraph refused to accept the narrative of the incident told by the applicant and itself assumed that the incident never occurred.
7. Again, in paragraph 14, IAA accepted that the applicant might have experienced injuries resulting from the conflict with Basij. However, IAA overlooked the whole incident and presumed by itself that the attack by Basij was not sever to take it into account and by doing so committed an error of law.
8. The IAA in paragraph 15 highlighted minor inconsistencies regarding applicant's detention and ignored the fact that he was detain and tortured by Basij. This failure of IAA to not to take into account a relevant information constitutes error of law.
9. In paragraph 16, 17, 18, 19 and 20 IAA looked into the account of events provided by the applicant regarding his religious believes and how he was overheard by Basij when he was sharing his thoughts about Islam with his friends at a coffee house. The IAA completely ignored the Country information available in hands which shows how Basij would torture people for their un-Islamic views. Failure of IAA to take into account this relevant information equates to an error of law.
10. During the interviews, the applicant stated that he has well-founded fear of persecution if retums back to Iran. The country information also indicate that the people with anti-Islam views are most likely questioned by Basij and could result in torture and imprisonment. However, the IAA disregarded the relevant information and consequently committed error of law.
11. In paragraph 32, the IAA referred to DF AT report which states different consequences for apostasy including death penalty. IAA accepted that the risk of prosecution against the applicant exists but itself assumed that there are no real chances that the applicant faces real chances of persecution on the basis of his believes. By not taking into account the relevant consideration which is risk of prosecution creates error of law on the part of the IAA.
12. The IAA in closing remarks failed to consider all the relevant facts, evidence and reports published by different organizations and assumed independently that the plaintiff will not face a real chance of serious harm and that he does not meet the requirement to be a refugee.
13. IAA failed to take into account the relevant consideration that the applicant after providing all the relevant evidence had satisfied the requirement of the complementary protection.
14. The applicant reserves the right to add, amend or withdrawn any other grounds to support his claim.
Mr Ford, solicitor for the applicant, sought to maintain the respective grounds and to rely upon the written submissions which advance that the findings of inconsistencies were matters of minor or insignificant nature and sought to take issue with the adverse findings of credibility made by the Authority. Mr Ford advanced that the inconsistencies did not mean the applicant’s entire story was concocted and took issue with the adverse inferences drawn by the Authority.
The Authority did not hold that the entire story of the applicant was concocted, and the Authority provided cogent and rational reasons in support of the adverse credibility findings. The inconsistencies were not trivial or insignificant matters, and it was open to the Authority to make the adverse credibility findings in determining whether or not the applicant met the criteria for the grant of the visa. Nothing in the written submissions identifies any jurisdictional error.
Ground 1
In relation to ground 1, the generalised assertion of a failure to take into account a relevant consideration does not of itself, identify any jurisdictional error. No jurisdictional error is made out by ground 1.
Ground 2
In relation to ground 2, there was no relevant evidence identified that was not considered, and the question of weight was a matter for the Authority in determining the applicant’s claims. On the face of the material before the Court, the Authority complied with its statutory obligations in the conduct of the review and complied with the obligations of procedural fairness by giving the applicant an opportunity to put on new information and submissions and taking the submissions made into account. On the face of the material before the Court, there was a genuine and meaningful engagement with the submissions put on by the applicant. No jurisdictional error is made out by ground 2.
Ground 3
In relation to ground 3, for the reasons already given, it was a matter for the Tribunal to determine what weight to give to the inconsistencies, which could not properly be characterised as minor. The assessment of the applicant’s credit was a proper matter for the Authority to determine. No jurisdictional error is made out by ground 3.
Ground 4
In relation to ground 4, it was a matter for the Authority to determine what country information to take into account. Insofar as ground 4 is seeking to take issue with the determination of the Authority that the criteria under s 473DD of the Act was not met, that finding was open and reasonable on the material before the Authority and cannot be said to lack and evident and intelligible justification. There is no proper basis to find that the Authority took into account a narrow meaning of exceptional circumstances or to find that the Tribunal failed to take into account the whole of the provisions. No jurisdictional error is made out ground 4.
Grounds 5-9
Grounds 5, 6, 7, 8 and 9 reflect a disagreement with the adverse findings by the Authority and do not identify any jurisdictional error. For the reasons already given, the inconsistencies cannot be identified as being of a trivial or insignificant nature. The adverse credibility findings were open and the Authority properly identified the applicant’s claims and made findings dispositive of those claims that were open on the material before the Authority. No jurisdictional error is made out by grounds 5 to 9.
Ground 10
In relation to ground 10, it was a matter for the Authority to determine what weight to give country information. There was no basis for finding that the Authority failed to take into account the applicant’s claims, evidence and submissions. The Authority in its reasons referred to country information that indicated that prosecution for apostasy was rare, and that where it did occur, it was in relation to certain religious activities, none of which were relevant to the applicant. The Authority also considered the country information indicating that non-practicing Muslims were common throughout Iran.
To the extent that the Authority disregarded the information in the “Report of the Special Rapporteur on the Situation of Human Rights in the Islamic Republic of Iran”, the Authority provided reasons as referred to under s 473DD of the Act, for rejecting the same. Those reasons were reasonable and open to the Authority. There is no relevant information identified that the Authority disregarded. The Authority’s reasons in relation to whether the applicant had well-founded fear of persecution were open to the Authority. Ground 10 is in substance an invitation to this Court to engage in an impermissible merits review. No jurisdictional error is made out by ground 10.
Ground 11
Insofar as ground 11 is seeking to refer to the same subject of the March 2016 report, for the reasons already given, it cannot make out any relevant legal error. There is no relevant information identified that the Authority failed to take into account. On the face of the material before the Court, the Authority correctly identified the relevant law. No jurisdictional error as alleged in ground 11 is made out.
Ground 12
Ground 12 is in substance, an invitation to this Court to engage in an impermissible merits review. There is no relevant fact, evidence or report identified that was not taken into account by the Authority. For the reasons earlier given, the March 2016 report was properly excluded by the Authority. No jurisdictional error is made out by ground 12.
Ground 13
In relation to ground 13, there was no relevant consideration that was not taken into account as identified. On the face of ground 13, it is an invitation to this Court to engage in an impermissible merits review. No jurisdictional error is made out by ground 13.
Ground 14
Ground 14 does not advance any other claim of jurisdictional error.
For these reasons, the application fails to identify any jurisdictional error. Accordingly, the application is dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 8 November 2017
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