BBB17 v Minister for Immigration

[2017] FCCA 2653

FEDERAL CIRCUIT COURT OF AUSTRALIA

BBB17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2653

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – the Authority complied with its statutory obligations in the conduct of the review – the Authority complied with its obligations of procedural fairness in the conduct of the review – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DB, 473DC, 473DD, 476

Applicant: BBB17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 730 of 2017

Judgment of: Judge Street

Hearing date: 31 October 2017

Date of Last Submission: 31 October 2017

Delivered at: Sydney

Delivered on: 31 October 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 730 of 2017

BBB17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. 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”) made under Part 7AA of the Act on 10 February 2017 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Iran and his claims were assessed against that country. The applicant arrived in Australia on 10 September 2012 as an unauthorised maritime arrival. The applicant applied for a Safe Haven Enterprise (subclass 790) visa (SHEV) on 12 January 2016. 

3. The applicant claimed to fear harm by reason of having been born a Muslim but being agnostic and feared harm for this reason.  The applicant alleged that he and his family were liberal and he had been harassed by authorities due to the way he dressed and lived. The applicant alleged that he started a relationship with a woman in 2006, and around 2011 was refused permission to marry her. The applicant was told the parents were making arrangements for the person to marry someone else. The applicant approached the other person and that person agreed to let the applicant and the woman be together. About 10 days later, the applicant heard that the woman’s family had forced her to marry the other person.

4. The applicant alleged that he confronted the other person, causing a physical fight and went to the woman’s family home where the applicant alleged an altercation occurred. The applicant alleged that the other man waited for the applicant at his home and that he was taken by that person to the Basij headquarters and that the applicant was detained for three days, beaten, and falsely accused of stealing a motorcycle and harassing another man’s wife, and brought before a judge and charged. The applicant alleged that he was sentenced to a period of prison but was released on a good behaviour bond as his father had arranged for release with the other man’s consent.  The applicant signed an undertaking not to hassle the woman again.

5. The applicant alleged that he contacted the woman and arranged to meet her and run away, and after three nights the applicant gave his mother and the woman’s mother their location. The woman’s mother and a number of male family members arrived at their location and a fight broke out and the husband hit the applicant with a baton. The applicant alleged he escaped on a motorcycle with his brother and sought medical treatment and then fled Iran to Abdul for four to five months. The applicant alleged his father made arrangements for him to flee Iran and that he exited through the airport undetected around 13 July 2012, assisted by one of his father’s contacts.

6. The applicant alleged that since he has been in Australia he has received threatening phone calls from people in Australia who he believes are acting on behalf of the woman’s family. The applicant alleged the woman’s brother has threatened to come to Australia and teach the applicant a lesson. On 7 October 2016, the delegate found the applicant failed to meet the criteria for the grant of a visa under the Act. 

The Authority’s decision

1. By letter dated 17 October 2016, the Authority wrote to the applicant informing the applicant that the matter had been referred to the Authority for review. The letter explained that there were only limited circumstances in which the Authority could consider new information. The letter attached a factsheet and practice direction giving the applicant an opportunity to put on new information and submissions.  

2. The applicant did put on submissions through his migration representative on 7 November 2016 and those submissions were identified and considered by the Authority in relation to the requirements under Part 7AA. The Authority in its reasons identified the background for the visa application. The Authority identified having regard to the information referred under s 473CB of the Act.  The Authority identified that the submissions included new information raising a claim in respect of honour killings. The Authority was not satisfied there were exceptional circumstances to justify the new information. 

3. The Authority also referred to a 2015 report of the United States Department of State and again was not satisfied there were exceptional circumstances to justify consideration of the same. The Authority made reference to information provided in respect to the applicant’s partner and again was not satisfied that there were exceptional circumstances to justify considering that new information.

4. The Authority made reference to the request in the submission to interview the applicant and referred to the statutory regime and the constraint upon the Authority under s 473DD and s 473DC as well as s 473DB of the Act. The Authority was not satisfied that the submissions provided proper reasons why an interview should be conducted in this particular case, and the Authority decided not to invite the applicant to an interview or otherwise to obtain new information. 

Assessment of Refugee Convention Criteria

1. The Authority identified the applicant’s claims and evidence. The Authority set out the relevant law.  In relation to the applicant’s claim concerning his relationship with the woman and the events that followed, the Authority formed the view that there were a number of responses given by the applicant which the Authority considered significantly undermined his claims in that regard. 

2. The Authority referred to the applicant saying he left Iran because there was a couple and he got into an affair with the wife. The Authority identified the inconsistency with the information the applicant otherwise provided. The Authority made reference to the applicant being asked a number of questions about past arrests or detention and his past interaction with police, security and intelligence organisations and with armed groups. 

3. The Authority identified the applicant failing to make mention of being detailed by the Basij for three days, charged with harassing the wife of another man or being detained for a brief period in the prison.  It was in those circumstances the Authority did not accept that if these things had occurred to the applicant less than a year prior to the interview, he would have failed to mention them, and instead answered the questions by reference to a period of detention some five years earlier.

4. The Authority also referred to other responses from the applicant that suggested the applicant remained in Tehran until the time of his departure and did not go into hiding as claimed. In considering the weight to be placed on the information provided by the applicant at the entry interview, the Authority has taken into consideration that the applicant was instructed by the interviewer a number of times to be brief in his response and to direct his answers only to the questions asked. The Authority did not accept that this accounts for the significant discrepancies and omissions between the information the applicant was able to provide at the interview and the claims he now makes. The Authority did not accept that there were any interpretation errors that account for those inconsistencies. The Authority did not accept that the applicant’s recent arrival and lack of understanding of process could account for the omissions.

5. The Authority found the information provided by the applicant at the arrival interview to significantly undermine core aspects of his claims.   The Authority did not accept that if the applicant had in fact been detained by the Basij for three days, charged with harassing another man’s wife, taken to Court, sentenced to a period of imprisonment, released on conditions which he later broke and had lived in hiding for four or five months prior to departure, that he would have failed to mention those matters when asked specific questions about his reasons for leaving Iran, his past interactions with the authorities, his fears on return or his past address and employment history.

6. The Authority was willing to accept that the applicant did have a relationship with a woman and that it came to the attention of the woman’s husband and family.  The Authority was not satisfied as to the timing of the relationship that the applicant was ever reported to the Iranian authorities, that he is on a watchlist, that he went into hiding or that he suffered any of the harm claimed as a result of its discovery. The Authority did not accept that the father’s arrangement for his departure from Iran had anything to do with the alleged fear of harm arising from the relationship.

7. The Authority made reference to threatening calls allegedly made to the applicant and did not accept that they had anything to do with the applicant’s relationship that he had in Iran. The Authority did not accept the applicant’s claims to have suffered past harm in connection with the relationship, whether by Iranian authorities or the family of the woman, and over four years have now passed since the discovery of the relationship and the applicant’s departure from Iran. 

8. The Authority was not satisfied there is a real chance of the applicant being prosecuted, detained, killed or otherwise seriously harmed in the reasonably foreseeable future either by the authorities or the family, including the husband or his family. 

9. The Authority accepted that the applicant was born a Muslim but does not believe or practice that religion. The Authority was not satisfied the applicant has any intention or commitment to exploring or practicing Christianity in Iran. The Authority was not satisfied there is a real chance of the applicant suffering harm in Iran because he has read Christian material in Australia. The Authority was not satisfied that the applicant would practice a new faith on return to Iran, and that the reason of that was lack of interest rather than fear of harm. The Authority found the prospect of the applicant’s religious views coming to the attention of the Iranian authorities or other persons who would seek to harm him to be remote. The Authority was not satisfied there is a real chance of the applicant suffering serious harm for this reason. 

10. The Authority referred to an alleged incident where the applicant was caught drinking alcohol and found the prospect of this occurring to be remote, and was not satisfied there is a real chance of the applicant suffering harm in relation to his past or future alcohol consumption in Iran.

11. In relation to the applicant’s clothes and appearance, the Authority found that the applicant may occasionally experience this kind of harassment, but found that it does not amount to serious harm.  On the information before the Authority, the Authority was not satisfied there is otherwise a real chance of the applicant suffering serious harm as a result of his behaviour or appearance, including any perceived westernisation as a result of his time spent in Australia. 

12. The Authority made reference to the applicant being a failed asylum seeker. The Authority found at that time of the applicant’s departure for Iran he was not a person of any interest to the Iranian authorities.  Taking into account the country information, the Authority found that while the applicant may be questioned on return because he would be using a temporary travel document, there is not a real chance that he would be subjected to adverse attention beyond this, and found that any such questioning does not amount to serious harm.

13. The Authority was not satisfied there is a real chance of the applicant suffering serious harm on return or in the reasonably foreseeable future in connection with his having attempted to seek asylum in Australia or membership of a particular social group arising from that fact.

14. The Authority referred to the applicant’s concerns in respect of the general human rights situation in Iran and not receiving those rights, and was not satisfied there is a real chance of the applicant suffering serious harm in that regard. 

15. The Authority was not satisfied there is a real chance the applicant would suffer harm beyond the harassment and questioning, whether from the Iranian authorities or others. The Authority was not satisfied that such harm amounts to serious harm when considered cumulatively. The Authority was not satisfied the applicant has a well-founded fear of persecution within the meaning of s 5J of the Act. The Authority found the applicant did not meet the definition of refugee in s 5H(1) of the Act and found the applicant does not meet the criteria under s 36(2)(a) of the Act.

Assessment of Complementary Protection criteria

1. The Authority found it was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Iran from Australia there is a real risk the applicant will suffer significant harm, whether from the Iranian authorities or other persons. The Authority found the applicant failed to meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under the review. 

Before this Court

1. On 29 June 2017, a Registrar of the Court made orders giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents were filed. 

2. The ground in the application is as follows:

   The Immigration didn’t give me justice on my visa and didn’t look on the main reason why I can’t go back to Iran.

3. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Authority’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.  The Court explained that if satisfied the Authority’s decision was unlawful or unfair, the decision would be set aside and sent back for further review. The Court explained that if not satisfied the Authority’s was unlawful or unfair, the application would be dismissed with costs. 

4. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the barrister from the first respondent, and then give the applicant an opportunity to put submissions in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

Applicant’s submissions from the bar table

1. From the bar table, the applicant submitted that at the time of interview the person interviewing him appeared to have predetermined the interview process and was there only to hear a lie.  The interview process to which the applicant appear to be referring is that of the delegate. On the face of the delegate’s reasons, the delegate accepted most of the applicant’s claims and evidence, which is inconsistent with the assertion of the delegate having predetermined the matter. Further, the delegate’s reasons reflect an orthodox approach to the determination of the applicant’s visa application, and the adverse determination is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the delegate failed to bring an impartial and independent mind to the determination of the matter on its merits. No other evidence has been adduced to establish any case of bias that must be clearly alleged and properly proved. No case of bias by the delegate is made out. No jurisdictional error was made by the Authority as a result of the allegations concerning the delegate.

2. The applicant complained that he did not have the benefit of the provision of a lawyer. There was no obligation on the Department to provide the applicant with a lawyer. The applicant then claimed that there was other information he wanted to give and wanted to be asked other questions. The Authority identified inconsistencies and contradictions with the other material and the applicant’s claims. Those adverse credibility findings were open on that material and cannot be said to lack an evident and intelligible justification. 

3. Whilst it is apparent that the applicant strongly disagrees with the adverse findings, nothing said by the applicant from the bar table identified any jurisdictional error. This Court does not have power to revisit the merits or to make fresh findings in respect of the applicant’s claims. Further, in relation to the review by the Authority under Part 7AA, it is a review which is under the Act to be conducted on the material that was before the delegate except in the circumstances where the requirements of subdivision (c) of Division 3 Part 7AA are otherwise made out. It is apparent in the present case that the Authority considered the submissions in relation to the request to interview the applicant and to obtain information. The Authority’s decision not to do so cannot be said to be unreasonable, and it is apparent that the Authority engaged with the submissions that were advanced on behalf of the applicant. Insofar as the Authority’s determination in relation to new information, there is no warrant for finding that the Authority adopted a narrow construction of the meaning of exceptional circumstances and on the face of the Authority’s reasons, the Authority’s reasons reflect consideration of the whole of the limbs of s 473DD of the Act.   Nothing said by the applicant from the bar table made out any jurisdictional error.

Ground 1

1. In relation to ground 1 in the application, this ground in substance reflects a disagreement with the adverse decision and does not identify any jurisdictional error. There is nothing to support the suggestion that the Authority misunderstood the applicant’s claims and the Authority correctly identified the relevant law and made dispositive findings on those claims.

2. On the material before the Court, the Authority complied with its statutory obligations in the conduct of the review. On the material before the Court, the Authority complied with its obligations of procedural fairness in the conduct of the review by giving the applicant an opportunity to put on submissions and new information and by taking into account those submissions and determining whether or not to receive any new information in accordance with the statutory regime. No jurisdictional error as alleged in ground 1 of the application is made out.

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

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 24 November 2017