AZZ20 v Minister for Immigration and Anor (No.2)

[2020] FCCA 3405

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZZ20 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2020] FCCA 3405

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – no jurisdictional error made out – application dismissed.   

Legislation:

Migration Act 1958 (Cth), ss.5AAA, 5H, 36, 473CB, 476

Applicant: AZZ20

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 573 of 2020

Judgment of: Judge Street

Hearing date: 14 December 2020

Date of Last Submission: 14 December 2020

Delivered at: Sydney

Delivered on: 14 December 2020

REPRESENTATION

The Applicant appeared in person via Microsoft Teams

Solicitors for the First Respondent: Ms C Hillary, Australian Government Solicitor, via Microsoft Teams

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $2,800.00.

DATE OF ORDER: 14 December 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 573 of 2020

AZZ20

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

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”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 4 February 2020, affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa. 

2. The applicant was found to be a citizen of Iran and his claims were assessed against that country. 

3. The applicant arrived in Australia in 2013. 

4. The applicant claimed to fear harm by reason of involvement in certain political activities and in relation to certain Facebook posts, and alleging that a member of his family had been questioned by Iranian authorities. 

5. On 6 December 2019, the Delegate found that the applicant failed to meet the criteria for the grand of a Safe Haven Enterprise visa. The Authority wrote to the applicant on 18 December 2020 and explained that the application for the Safe Haven Enterprise visa had been referred to the Authority for review. The Authority also provided an attached fact sheet and Practice Direction, giving the applicant an opportunity to put on new information and submissions. 

6. 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. 

7. The Authority also took into account and had regard to the submissions made by the applicant.

8. The Authority summarised the applicant’s claims and noted that no claim has been raised to fear harm because of the applicant’s ethnicity. 

9. The Authority was not satisfied with the applicant’s explanation for the inconsistencies in his evidence, between his arrival interview, his later statement and his interview with the Delegate. 

10. The Authority identified other concerns with the applicant’s evidence and did not accept the applicant’s explanation for the inconsistencies. 

11. The Authority also took into account the implausibility of the applicant’s recollection of the name of his Facebook page and also took into account his departure on an Iranian passport in the course of the steps taken to come to Australia. In that regard, the applicant was issued with an Iranian passport in a particular country in 2012. 

12. The Authority also referred to an alleged incident involving another member of the applicant’s family and found the applicant’s evidence in that regard not to be convincing. 

13. The Authority did not accept that the applicant was held and questioned at the airport by Iranian authorities and was not satisfied that the applicant has ever been politically active, or that he or his family have come to the adverse attention of the Iranian authorities. 

14. The Authority identified the relevant law including in an attachment of applicable law. 

15. The Authority did not accept the applicant was involved with the Ahwazi Arab group in a particular country or that he posted political material on Facebook or has ever been politically active. 

16. The Authority was not satisfied that the applicant would refuse to do military service and found the chance that the applicant experienced harm amounting to serious harm as a result of military service to be more than remote. 

17. The Authority took into account country information and did not accept that the applicant or his family have come to the adverse attention of Iranian authorities, and was not satisfied that the applicant has any profile with the Iranian authorities and was not satisfied that there is a real chance the applicant will suffer any harm in the reasonably foreseeable future because he sought asylum in Australia. 

18. The Authority found that the applicant did not meet the definition of refugee in s 5H(1) of the Act. The Authority found that the applicant failed to meet the criteria in s 36(2)(a) of the Act and that the applicant failed to meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review. 

Before the Court

1. These proceedings were commenced on 9 March 2020. On 9 April 2020, this Court made orders fixing the matter for hearing today. This Court also made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed other than an application for an adjournment on 10 December 2020. That application was dismissed for reasons separately given. 

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing. The applicant confirmed that he understood the explanation given by the Court. 

3. The applicant orally submitted that he had problems, before the Authority, because of his young age and documentation. Under s 5AAA(2) of the Act, it is for the applicant to provide sufficient evidence to establish his claims. 

4. The applicant maintained that his life was in danger and, in substance, invited the Court to engage in merits review. This Court has no power to review the merits, nor can the Court determine the matter on compassionate or discretionary grounds. 

5. The Authority’s reasons reflect a genuine intellectual engagement with the applicant’s claims and evidence, and the making of adverse findings dispositive of the applicant’s claims that were open to the Authority for the reasons given by the Authority. Those reasons included the inconsistency with the applicant’s arrival interview, with his statement and his interview with the Delegate, the implausibility of his claims, and want of documentation. 

6. Nothing said by the applicant identified any jurisdictional error.

Before the Court

1. The grounds in the application are as follows:

   1.I fulfilled the Migration Act 1958 criteria for refugee section 5H(a) because it is evident that if I go back to Iran, I am unable to protect myself from persecution.

   2.I also satisfy the criteria of section 36 (1A), (1B) and (1C) as I am not a risk or danger to Australian security

   3.And satisfy section 36(2)(a) and (aa) as there are established grounds to be considered that I will be significantly harmed on returning to Iran.

Ground 1

1. Ground 1 reflects a disagreement with the adverse findings by the Authority and does not identify any jurisdictional error. The Authority correctly identified the relevant law in respect of both the Refugee Convention and complementary protection. On the face of the Authority’s reasons, the Authority correctly applied the relevant law. The adverse findings by the Authority in respect of the Refugee Convention were open for the reasons given by the Authority as summarised above. Those reasons were dispositive of the applicant’s claims and were logical and rational. 

2. No jurisdictional error is made out by ground 1.

Ground 2

1. Ground 2 concerns criteria in respect of s 36(1B) and (1C) of the Act that was not necessary for the Authority to determine. The Authority did consider whether the applicant met the criteria in s 36(2)(a) and (2)(aa) of the Act. The Authority found that the applicant did not satisfy either s 36(2)(a) or (2)(aa) of the Act and that the applicant did not meet any member of a family unit criteria. On the face of the Authority’s reasons, it is apparent that the applicant did not satisfy s 36(1A)(b) of the Act. The assertion that the applicant met the Refugee Convention or complementary protection is contrary the Authority’s findings and does not identify any relevant error.

2. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, it was open to the Authority to take into account the adverse findings, in relation to the Refugee Convention, in considering complementary protection. 

2. Insofar as ground 3 alleges error under the Refugee Convention and complementary protection, it does not identify any arguable error. The Authority correctly identified the relevant law and on the face of the Authority’s reasons, made adverse findings dispositive of the applicant’s claims, under the Refugee Convention and in relation to complementary protection. The Authority found the applicant does not face a real risk or real chance of serious harm or significant harm if returned to Iran in the reasonably foreseeable future.

3. No jurisdictional error is made out by ground 3.

4. Accordingly, the application must be dismissed with costs. 

5. However, this is a case where the Court recommends that it is appropriate for the Minister to consider Ministerial intervention. The applicant impressed the Court and the Court can understand the applicant’s concerns in relation to his youth and explanations for want of documentation. 

6. It is a matter for the Minister and the Minister’s department whether there is any referral of the application for Ministerial intervention. 

7. The Court expects the first respondent’s solicitors, as a model litigant, to ensure that suggestion for referral by this Court is drawn to the Minister’s attention. 

8. It is a matter for the applicant what further information is provided in support of that recommendation for Ministerial intervention in accordance with the applicable guidelines or procedure. 

9. It is not appropriate for the Court to make any further observations in relation to the steps the applicant should take. This Court does note that this Court rarely recommends the step of Ministerial intervention. 

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 14 December 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 22 February 2021