ASK18 v Minister for Immigration

[2018] FCCA 1584

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASK18 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1584

Catchwords:
MIGRATION – Persecution – review of Immigration Assessment Authority decision – visa – protection visa – refusal – application for extension of time to bring proceedings.

Legislation:

Migration Act 1958, ss.36, 418, 474, 477

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
AKK17 v Minister for Immigration & Border Protection (2017) 327 FLR 343

Applicant: ASK18

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 423 of 2018

Judgment of: Judge Cameron

Hearing date: 30 May 2018

Date of Last Submission: 30 May 2018

Delivered at: Sydney

Delivered on: 28 June 2018

REPRESENTATION

Solicitors for the Applicant: The Applicant appeared in person

Solicitors for the Respondents: Mr L. Leerdam of DLA Piper

ORDERS

1. The time for the commencement of the proceeding be extended to 16 February 2018.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 423 of 2018

ASK18

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Iran who arrived in Australia as an irregular maritime arrival on 7 May 2013. On 9 October 2015 he lodged an application for a protection visa with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Iran because of his religion. On 14 September 2016 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The matter was then referred to the Immigration Assessment Authority (“IAA”) for a review of that departmental decision. He was unsuccessful before the IAA whose decision was dated 20 March 2017 and on 16 February 2018 he applied to this Court for judicial review of the IAA’s decision. That application was filed outside the limitation period prescribed by s.477 of the Migration Act 1958 (“Act”) and the applicant has applied for an extension of time within which to bring this proceeding.

2. For the reasons which follow, that application for an extension of time will be allowed.

APPLICATION FOR AN EXTENSION OF TIME

1. Section 477 of the Act provides the time limit which applies to proceedings for judicial review of IAA decisions in respect of which this Court has jurisdiction. At the time of the IAA’s decision, it relevantly provided:

   477 Time limits on applications to the Federal Circuit Court

   (1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

   (2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

   (3)    In this section:

   date of the migration decision means:

   …

   (ca) in the case of a migration decision made by the Immigration Assessment Authority—the date of the written statement under subsection 473EA(1);…

2. Because the IAA’s decision was dated 20 March 2017, the applicant had until 24 April 2017 to commence this proceeding.  As stated earlier, the application was not filed until 16 February 2018 and so it was brought out of time.

Application in writing citing reasons

1. The consequence of the application having been filed late is that the Court must consider the two questions posed by s.477(2). The first of these is whether an application has been made to the Court for an extension of time. The application commencing this proceeding contained an application for an extension of time and set out the basis on which the applicant said that an extension of time would be in the interests of the administration of justice. The initial criteria for the granting of an extension of time have therefore been satisfied.

Interests of the administration of justice

1. The second question posed by s.477(2) is whether it is in the interests of the administration of justice to extend the time. In the circumstances of this case, that question will be determined by whether the applicant has provided a satisfactory explanation for his delay in commencing the proceeding and whether the allegations made in the substantive application for judicial review have sufficient merit that the Court should consider them at a trial.

Satisfactory explanation for delay

1. In his application commencing this proceeding the applicant appears to state that following the IAA’s decision he was involved in criminal proceedings and was therefore unable to file his application to this Court in time.  At the hearing of his application for an extension of time the applicant told the Court, and subsequently confirmed on oath, that the IAA’s refusal letter had been sent to an old address and that he had not received it until about January this year by which time he had been returned to immigration detention after having spent several months of 2017 in prison. 

2. This account emerged for the first time at the hearing and so, I infer, the Minister was in a poor position to address it.  Despite the best efforts of Mr Leerdam for the Minister, the applicant was unshaken in his account of the relevant chronology.  In this connection it should be recorded that the applicant also said that although he had seen his case manager on 28 March 2017 and attended the offices of the Department on 29 March 2017, at which point he was taken into detention for a period which, apparently coincidentally, preceded his imprisonment, on neither occasion was he told that the IAA had affirmed the delegate’s decision on 20 March 2017. 

3. Although I understand the Minister’s scepticism of the accuracy of that account, in the circumstances, I accept that the applicant did not receive a copy of the IAA decision until last January. 

4. The applicant also gave evidence that he received some assistance with the lodgment of the application which commenced this proceeding but said that that assistance did not continue.  In any event, the picture which the applicant painted was of activity to file the present application without delay once he received a copy of the IAA decision. 

5. Although the applicant’s account lacked clarity and some scepticism must attach to its accuracy, I am prepared to accept the applicant’s evidence as to the chronology of events surrounding the filing of the present application.  I find that the applicant has provided a satisfactory explanation of the delay in commencing this proceeding.

Merits of substantive application

1. In relation to the question of the merits of the substantive application, it should be noted that in proceedings for judicial review of an IAA decision, the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant IAA decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, before the Court would conclude it to be in the interests of the administration of justice to extend the time within which to bring a proceeding, it is necessary that an applicant demonstrate that his or her case has sufficient merit that the Court should consider it at a trial. I have concluded that the present applicant has done that.

Protection visa claims

1. The applicant’s claims for protection were summarised by the Minister in his written submissions in the following terms which I adopt:

   4.In his department interview held on 16 December 2015, his application, his subsequent statutory declaration dated 26 August 2016, and submissions dated 22 July 2016, the applicant claimed to fear harm in Iran on the basis that:

   4.1He would be persecuted by police as he did not support Islam, and had previously been arrested for no reason other than his religion as a Muslim.

   4.2Police belted him for being Muslim [because] he did not follow Islam[ic] law such as fasting and not drinking alcohol. The applicant has been arrested because of his consumption of alcohol and drugs, which he attributed to his lack of religious practice;

   4.3He no longer believes in or practices [sic] Islam.

   4.4His name was included in the data breach with the Department which increases his risk of harm if were to return to Iran, particularly as he had served as a soldier in the Iranian army in the 1982/83 war with Iraq and Iranian authorities would be concerned about what information he may have disclosed as part of his Protection visa application.

   4.5He became interested in Christianity [while in immigration detention and decided to convert] after being released from immigration detention on 9 June 2016, was baptised on 31 July 2016 and would not be able to openly practice [sic] Christianity if he returned to Iran.

   4.6He posts his religious views on his Facebook page and would be at risk of harm from Iranian Authorities due to his social media activities.

   4.7 He would be a returning failed asylum seeker.

   (References omitted)

2. In support of his claims, the applicant relevantly provided the following documents:

   a)a letter of support dated 14 August 2016 from the minister of a Baptist Church stating that he (the minister) had met the applicant  on 24 July 2016 and believed the applicant to be a committed Christian; and

   b)a certificate stating the applicant had been baptised at the Baptist Church on 31 July 2016.

The IAA’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the IAA found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(a) or (aa) of the Act. The IAA’s findings were summarised by the Minister in his written submissions in the following terms, which I adopt:

   9.     With regard to the refugee criteria:

   9.1The IAA accepted that the applicant was a citizen of Iran and was not a practising Muslim.

   9.2The IAA did not accept the applicant’s claims that he was motivated to drink alcohol and smoke marijuana due to his desire to be anti-Islamic, and did not accept there was any religious or political significance in the applicant’s actions in this regard or that he had been imputed with any dissident or activist profile as a result.

   9.3On this basis and with regard to current country information, the IAA did not accept there was a real chance that the applicant would suffer harm or punishment if returned to Iran for any past use of alcohol or marijuana.

   9.4The IAA did not accept that there was a real chance the applicant would suffer harm in Iran due to him not practising Islam.

   9.5The IAA did not accept there was a real chance that the applicant would face a real chance of harm as a result of comments he had made on his Facebook page.

   9.6The IAA considered the applicant’s claimed conversion to Christianity from [16]-[19], but did not consider it was genuine based on his long term lack of faith and the suddenness with which he purportedly embraced Christianity. As such the IAA considered the applicant engaged in Christian practices to strengthen his claim as a refugee, and this conduct was required to be disregarded pursuant to section 5J(6) of the Act.

   9.7The IAA did not place any weight on the applicant’s claims relating to the data breach on the basis that there was no available evidence that interview recordings or any other information was accessible as part of the breach.  There was no evidence Iranian authorities were aware of the data breach, had accessed any information from it, or that anyone had been detained or questioned as result on return to Iran.  As such the IAA did not consider the applicant faced a real chance of harm on this basis.

   9.8The IAA accepted that the applicant had served in the Iranian army in the 1980’s, though did not accept that he had access to sensitive information that would lead Iranian authorities to be concerned about him revealing.  The IAA also did not accept he had been recruited as a former soldier to attack protesters in 2009.

   9.9Based on country information, the IAA was also not satisfied that a real chance existed that the applicant would be harmed upon return to Iran as a returning legal departee who had sought asylum in Australia.

   10.Based on the above, the IAA did not accept that the applicant met the requirements of section 36(2)(a).

   11.With regards to the complementary protection criteria, the IAA:

   11.1Was not satisfied that the applicant would face any further punishment for his previous alcohol-related incidents in the reasonably foreseeable future if he returned to Iran;

   11.2Accepted as plausible that some of the applicant’s personal details may have been revealed through the DIBP data breach, however there was no evidence Iranian authorities were aware of this breach, accessed the site before the information was removed, or that anyone had been questioned or detained on return to Iran because of it.  As such, the IAA was not satisfied that the applicant faced a real chance of harm on this basis;

   11.3Accepted the applicant no longer practiced [sic] Islam but, based on country information, did not consider this would expose the applicant to a real risk of harm in Iran if he were to return;

   11.4Did not accept that the applicant had an activist or dissident profile to the extent of coming to the attention of the Iranian Authorities, and as such was not satisfied that the applicant faced a real chance of harm as a result of his Facebook comments;

   11.5Considered whether the applicant would be subject to harm if he returned to Iran as a result of his conversion to Christianity.  Having regard to country information, the IAA found that mere conversion to Christianity outside of Iran is generally insufficient to attract official attention, though active manifestation of one’s Christian identity in the public sphere may risk negative attention from the authorities.  Notwithstanding, there was no evidence to indicate the Iranian authorities were aware, or would become aware of the applicant’s baptism;

   11.6Was not satisfied the applicant had any genuine interest in Christianity, and was not satisfied that the applicant would pursue any interest in Christianity if he returned to Iran.  The IAA was not satisfied the applicant had an activist or dissident profile to the extent he would have been of interest to Iranian authorities, and as [sic] did not face a real risk of harm in Iran on the basis of his Christian activities;

   11.7Did not consider, based on country information, that the applicant would face a real risk of significant harm from Iranian authorities as a returning failed asylum seeker, particularly noting that he departed Iran legally.

   (References omitted)

Grounds for judicial review

1. The applicant’s application did not make any allegations in support of his prayers for constitutional writs.  In his affidavit filed in support of his application and sworn or affirmed on 13 February 2018, the applicant appears to assert that the delegate’s reasons for refusing his visa contained a number of factual errors and omissions and that consequently there had been a lack of proper consideration of all aspects of his claims.  The Court has no power to review the delegate’s decision.  Additionally, in reality, the applicant’s affidavit does no more than invite a reconsideration of his claim to be entitled to a protection visa.  The Court has no power to do that either.

2. At the hearing of this application for an extension of time, however, the applicant raised additional matters which might justify the interlocutory order he seeks.

Evidence

1. The applicant gave evidence at the hearing that he had provided three documents to the delegate at the end of his interview in December 2015, two of which had not been reproduced in the Court Book or referred to by the delegate in her decision record.  One of those documents was said to have been an article published in the Iranian press about the Department’s data breach.  The other document was said to have been an article apparently referring to comments made by a senior immigration lawyer that sixteen countries, including Iran, were aware of the data breach.  At the hearing the applicant tendered what he said was a copy of the first article (exhibit A1).  The document was not in English and the court interpreter confirmed that it was written in Persian.  The applicant said that he had been unable to find a copy of the other document.

2. It is apparent that the delegate did not have a copy of exhibit A1.  The relevant passage in the latter’s decision record states only that the applicant referred to the document, not that he provided it:

   The applicant stated that he had read an article in an Iranian newspaper (Hameshar) regarding the data breach.  According to the applicant the article stated that the information of 10,000 asylum seekers had been published and further that 30% of that 10,000, the authorities had accessed interview recordings and disclosures made by asylum seekers.  I put to the applicant that there is no evidence that interview recordings or any other information had been made available.  The applicant stated that the data breach disclosure would have been seen by the Ettela and therefore he is at risk of being detained should he return to Iran.

3. For the purposes of the application for an extension of time it should be assumed that the applicant will be able to prove that the document was indeed provided to the Department and that, for some reason, it was not before the delegate and so was similarly not before the IAA when it made its decision.  The question then is:  do those matters indicate that there is a case here that should be considered at a trial?

4. Although authorities on s.418 of the Act concerning reviews conducted by the Administrative Appeals Tribunal and its relevant predecessor would suggest that failure by the Secretary to provide all relevant information to the IAA would not, on its own, be sufficient to support a finding that the IAA’s decision was affected by jurisdictional error, in AKK17 v Minister for Immigration & Border Protection (2017) 327 FLR 343 Judge Driver distinguished those authorities and found that a failure by the Secretary to provide all information to the IAA did indeed lead to the IAA’s decision being affected by jurisdictional error. His Honour said:

   … In my opinion, just as a Tribunal review may be disabled by fraud by a migration agent, so also a review by the Authority may be disabled by the failure of the Secretary to refer to the Authority material that was before the delegate.  This is because such a failure can prevent the Authority from performing its obligation under s.473CC of the Migration Act consistently with s.473DB.

   …

   I conclude that the review function by the Authority was disabled by the failure of the Secretary to refer the letter to the Authority with the review material and that jurisdictional error has been established by this ground. (at 357 [59], 358 [64]) (Reference omitted)

5. For present purposes that is to be taken as a correct statement of the law.  As a result, the present applicant has a case for constitutional writs which has sufficient merit that it requires determination at a trial.

1. In light of the findings I have made, I conclude that it would be in the interests of  the administration of justice that time for the commencement of this proceeding be extended.

CONCLUSION

1. The order therefore will be that the time for the commencement of this proceeding be extended to 16 February 2018.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 28 June 2018