BAA20 v Minister for Immigration and Anor (No.2)

[2020] FCCA 3403

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAA20 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2020] FCCA 3403

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: BAA20

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 574 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 574 of 2020

BAA20

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAITS

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 activity by himself and his family. 

5. On 12 December 2019, the Delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa. The Delegate made adverse findings in respect to the credibility of the applicant’s claims. 

6. On 19 December 2019, the Authority wrote to the applicant, explaining the application for the Safe Haven Enterprise visa had been referred to the Authority for a review, and attached a fact sheet and Practice Direction, giving the applicant an opportunity to put on new information and submissions. 

7. The Authority identified the background to the Safe Haven Enterprise visa application and had regard to the material given by the Secretary under s 473CB of the Act. 

8. The Authority identified the applicant’s submissions and had regard to the same. The Authority summarised the applicant’s claims and accepted that the applicant is of Bakhtiari ethnicity and noted that the applicant did not claim to fear harm by reason of his ethnicity.

9. The Authority was not satisfied that the applicant’s young age explained why he could not recount the things that happened to him personally and, taking into account what was said at the arrival interview, did not accept the applicant’s explanation as to why he did not provide information at that stage. The Authority did not accept the applicant’s explanations in relation to the inconsistencies between the arrival interview and his latest statement and the Delegate’s interview.

10. The Authority did not accept that the applicant’s young age explained his limited knowledge about matters central to his claims. 

11. The Authority was not satisfied that the applicant’s father was involved in any political activities. 

12. The Authority took into account that the applicant obtained an Iranian passport to depart Iran. 

13. The Authority accepted that the applicant had not undertaken any military service and that he may be required to complete the same. 

14. The Authority found it implausible that the Iranian authorities would have any interest in him after his brother went to a particular country. The Authority did not accept that a relative of the applicant was involved in an Ahwazi group in a particular country or that that relative posted material on Facebook. The Authority did not accept that the applicant’s relative or his family had problems with the Iranian authorities. The Authority did not accept that the applicant or his family had come to the adverse attention of the authorities. 

15. The Authority identified the relevant law, including in an annexure of applicable law, incorporated by pagination.

16. The Authority was not satisfied that the applicant’s relative was involved with the Ahwazi group or that the applicant or his family experienced problems in Iran as a result of his relatives’ activities, his father’s activities or connection to another family. 

17. The Authority was not satisfied that the applicant has any profile with the Iranian authorities, and after taking into account country information, the Authority was not satisfied that the applicant has a well-founded fear of persecution. 

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 did not meet the criteria in s 36(2)(a) of the Act, and did not 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 and by orders of this Court on 9 April 2020, were fixed for hearing today. The orders gave the applicant an opportunity to file an amended application and affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing, the Court heard an application for an adjournment which was refused for reasons separately given. 

3. At the commencement of the hearing of the applicant’s case, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the explanation given by the Court. 

4. The applicant orally made reference to his young age at the time he left Iran and proffered an explanation for his want of documents in support of his claims. Under s 5AAA(2) of the Act, it is for the applicant to provide sufficient evidence to establish his claims. The adverse credibility findings by the Authority were open for the reasons given by the Authority. That included inconsistencies with the applicant’s arrival interview, implausibility and want of documentation. 

5. The Authority’s reasons reflect a genuine intellectual engagement with the applicant’s claims and evidence and the making of dispositive findings in respect of the whole of the applicant’s claims that were open for the reasons given by the Authority. The applicant’s disagreement with the adverse findings does not identify any jurisdictional error.

6. The applicant made reference to his involvement in a football club, and also recent problems with a teacher in Iran. These were not matters raised before the Authority and accordingly are not capable of giving rise to any relevant error. 

7. The applicant’s oral submissions in substance invited an impermissible merits review. 

8. No jurisdictional error is made out by anything said by the applicant.

The grounds

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. The first ground reflects the disagreement with the adverse finding by the Authority. The Authority provided logical and rational reasons in support of its adverse findings as summarised above. The applicants’ disagreement with those adverse findings does not identify any jurisdictional error. The Authority found that the applicant did not meet the criteria under the Refugee Convention and did not meet the criteria in respect of complementary protection. The adverse finding that the applicant did not meet the refugee criteria was open for the reasons given by the Authority. 

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

Ground 2

1. In relation to ground 2, this raises matters that are not relevant to the criteria that the applicant has to meet before the Authority. No family member met the criteria under ss 36(2)(b) or (c) of the Act. The applicant did not satisfy s 36(2)(a) or s36 (2)(aa) of the Act. The Applicant’s contention that he met s 36(1A) is incorrect as the Authority’s findings mean that he did not meet the requirements of s 36(1A)(b) of the Act. The Authority was not required to consider whether the applicant met ss 36(1B) or (1C) of the Act.

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

Ground 3

1. Ground 3 reflects the disagreement with the adverse finding by the Authority in relation to complementary protection. It was open to the Authority to take into account its adverse findings under the Refugee Convention, when considering with the complementary criteria. The adverse finding by the Authority in relation to complementary protection was rational and logical and open on the material before the Authority. 

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

3. As the application fails to make out any jurisdictional error, the application is dismissed.

4. The Court does, however, note, that this is a matter in respect of which the Court considers it appropriate to suggest that the Minister consider ministerial intervention.

5. Notwithstanding the adverse findings, the applicant impressed the Court and the Court understands the applicant’s concerns in relation to his explanation for want of documentation as well as his youth. 

6. The first respondent’s solicitors, as a model litigant, will ensure that the application for ministerial intervention is considered for referral to the Minister and will no doubt provide any further documents that the applicant submits in support of that application for ministerial intervention.

7. It is not appropriate for the Court to provide any further observations on this topic and it is a matter for the Minister and the Minister’s department as to whether the request is referred. The Court notes, however, that this Court rarely makes such a recommendation. 

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: 23 February 2021