BBW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 446

FEDERAL CIRCUIT COURT OF AUSTRALIA

BBW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 446

File number(s):

SYG 608 of 2020

Judgment of:

JUDGE DRIVER

Date of judgment:

9 March 2021

Catchwords:

MIGRATION – review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iran – applicant disbelieved in important respects and other fears found not to be well-founded – whether the Authority relied on outdated country information, failed to investigate the applicant’s claims for failed to afford him an opportunity to be heard considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss 46A, 473CB, 473DA, 473DB, 473DC, 473DE, 477GA, 477GB

Cases cited:

DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12

EGY18 v Minister for Home Affairs [2019] FCCA 1874
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Number of paragraphs:

36

Date of hearing:

9 March 2021

Place:

Sydney

The Applicant appeared in person by telephone

Solicitors for the Respondents:

Ms P Durham of Sparke Helmore

ORDERS

SYG 608 of 2020

BETWEEN:

BBW20

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE DRIVER
DATE OF ORDER:	9 MARCH 2021

THE COURT ORDERS THAT:

1.Under s 477(2) of the Migration Act 1958 (Cth), the time for filing the application be extended up to and including 11 March 2020.

2.The application as amended on 17 August 2020 is dismissed.

3.The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,467.

REASONS FOR JUDGMENT
(revised from transcript)

JUDGE DRIVER:

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority).  The decision was made on 28 January 2020.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts relating to this matter are set out in the Minister’s outline of submissions, which I adopt.

2. The applicant, a citizen of Iran, arrived at Christmas Island as an unauthorised maritime arrival on 1 July 2012. On 23 July 2013 he lodged an invalid application for a protection (subclass 866) visa.[1] On 30 September 2015, the Minister’s Department advised the applicant that it had lifted the bar pursuant to s 46A of the Migration Act 1958 (Cth) (Migration Act).[2] On 12 April 2017, he applied for the visa.[3] On 29 October 2019, he attended an interview with the delegate (TPV interview).[4] On 28 November 2019, the delegate refused to grant the applicant the visa.[5]

   [1] Court Book (CB) 60-90

   [2] CB 91

   [3] CB 123-165

   [4] CB 189

   [5] CB 206

3. On 17 December 2019, the matter was referred to the Authority.[6]  As noted above, on 28 January 2020, the Authority affirmed the decision to refuse to grant the applicant the visa.[7]

   [6] CB 228

   [7] CB 236

   Applicant’s claims

4. The applicant’s claims for protection were advanced in a statement provided with the visa application and may be summarised as follows:[8]

   (a)he was born in Iran as a Muslim but never formally practised Islam;

   (b)during his military service he “openly renounced Islam” and the way the regime treated Iranians who publicly expressed their “hatred” of the “State-imposed religion”.  During a discussion relating to politics and religion he said that he did not believe in the Imams and the Prophets, he hated the Ayatollah, and that he “fuck all these Imams”. An officer who was present “came at me” and they started physically fighting. The officer then “tried to make a case against me” and he was subsequently taken to the Military Court and then sent to the Military prison for 16 days;

   (c)during his detention, he was beaten regularly by guards who would threaten “to insert things into my bottom”. He also had to clean toilets, sleep on the floor and protect himself from other prisoners who were aware he insulted Muhammad, the Prophets and Islam;

   (d)in 2007, he was arrested for being drunk. The police beat him and threatened him with rape, and he received 75 lashes (2007 offence). In 2008, he was arrested again for being drunk, was beaten and sentenced to 70 lashes and six months’ imprisonment (2008 offence);

   (e)in 2011,[9] he was arrested after being caught with a backpack containing 10 cans of whiskey. His father was able “to get me out of police detention” by bribing officers.[10] He left Iran because he knew that he would receive the death penalty under Iranian law for his third alcohol related offence. Summonses were sent to him and after he failed to attend Court, his parents’ house was searched and they were harassed and threatened;

   (f)he feared that he would be “punished severely, seriously harmed and possibly killed” because of his “anti-Islam beliefs” and would be targeted and physically harmed because he would be perceived to have behaved in a way that is against the regime. He feared that he would be killed because of the three alcohol related convictions.

   [8] CB 160-165

   [9] The applicant referred to the Persian calendar year for this claim (1390)

   [10] 2011 offence

   Authority’s decision

5. The Authority had regard to the material given by the Secretary under s 473CB of the Migration Act and did not obtain or receive any new information.[11]

   [11] CB 237 [3]-[4]

   Military Service

6. The Authority considered the inconsistent dates provided by the applicant for the period of his military service. The applicant had consistently claimed to have completed “one day less than two years” of service whereas his military service card indicated that he completed 20 months and two days of service. Despite this, the Authority accepted that the applicant completed compulsory military service.[12]

   [12] CB 239 [11]-[13]

7. The Authority recorded that during the TPV interview, the applicant provided a “substantially different account of why he was detained during his military service which leads me to doubt the applicant’s overall credibility”.[13] The Authority summarised the evidence provided by the applicant at the TPV interview and found that he had provided two different accounts of the reasons for his imprisonment.[14] In particular, the applicant claimed in his visa application that he was imprisoned because he insulted Islam in front of an officer, whereas at the TPV interview he claimed that he was detained because he disobeyed a superior officer’s orders and that he refused to beat protesters during the 2009 protests. The Authority considered the applicant’s evidence at the TPV interview to be “farfetched and exaggerated”.[15]

   [13] CB 240 [14]

   [14] CB 240-241 [15]-[21]

   [15] CB 241 [21]

8. The Authority recorded further concerns which included that it considered the claim that his parents brought him food whilst he was imprisoned to be unlikely given that he consistently claimed he completed his service in Esfahan but his parents had lived in Tehran. Further, it was implausible that after his release from prison he decided to return to Tehran for 10 to 15 days and then go back to the military after his father told him he could not stay. The Authority also expected that the applicant would have raised his military service claim at his entry interview.[16]

   [16] CB 241 [22]

9. On account of its concerns in relation to this claim, and the “differing portrayals” of it, the Authority was not satisfied that the applicant was arrested and jailed for the claimed reasons, or that he was beaten and harassed whilst in prison and that his house was raided. The Authority found that the applicant did not face a real chance of any harm on account of this claim.[17]

   [17] CB 242 [23]

   Alcohol related offences

10. The Authority summarised the evidence provided at the TPV interview in relation to the 2007 offence and identified that the applicant “seemed to be developing his responses in line with the delegate’s questions and did not present as if recalling from an actually lived experience”.[18] The Authority also summarised the evidence provided in relation to the 2008 offence, and noted that the applicant had provided certified and translated copies of identity documents, but found it strange that he did not provide translated copies of the Iranian Court documents, especially given his claim that his father had bribed Court officials to obtain them.[19]

    [18] CB 242 [26]

    [19] CB 243 [28]-[29]

11. The Authority noted inconsistent evidence provided in relation to how long he was imprisoned during 2008 and found it implausible that he could not definitively indicate how long this period was.[20]  Further, with reference to country information, the Authority was not satisfied that the applicant was imprisoned after being caught under the influence of alcohol.[21] However, the Authority was willing to accept that the applicant came to the attention of authorities on two occasions for alcohol consumption and that he received lashes as a consequence.[22]

    [20] CB 243-244 [30]-[31]

    [21] CB 244 [31]

    [22] CB 244 [32]

12. The Authority summarised the applicant’s evidence provided at the TPV interview in relation to the 2011 offence and recorded that “again the applicant constructed his responses in line with the delegate’s questions”.[23] The Authority recorded that it had a number of concerns relating to the 2011 offence.[24] These included that the applicant failed to mention in the entry interview that his parents had received a summons for him to appear in Court or that his house had been raided; that he could not remember the alcohol he was caught carrying at the TPV interview; the differing claimed periods of detention; that contrary to his claims, country information indicated that Court cases in Iran may proceed if the defendant did not appear; and that he provided inconsistent evidence regarding what his parents had told authorities when their house was searched.[25] 

    [23] CB 244 [33]-[35]

    [24] CB 245 [36]

    [25] CB 245–246 [37]-[39]

13. The Authority did not consider the applicant to be a witness of truth and it was not satisfied that he was arrested in 2011 for possessing alcohol or that he was of any interest to the Authorities for alcohol related offences when he departed Iran. The Authority found that he did not face a real chance of any harm on account of these incidents.[26]

    [26] CB 246 [40]

14. The Authority referred to further country information relating to prosecution for alcohol consumption in Iran and found that the chance the applicant would be harmed for his past and future alcohol use was remote and not real.[27]

    [27] CB 246 [41]-[46]

    Non-practising Muslim and failed asylum seeker

15. The Authority was not satisfied that the applicant claimed to be an atheist or that he feared harm on that basis, but only that he had renounced Islam and did not believe in Islam.[28] With reference to DFAT[29] country information from 2016 and 2018 regarding religious observance in Iran, the Authority found that the applicant would not face a real chance of any harm on account of his non-practice of Islam and his religious views. The Authority did not accept that the applicant would publicly renounce Islam or promote his views on religion upon return.[30]

    [28] CB 248 [47]

    [29] Department of Foreign Affairs and Trade

    [30] CB 248 [48]-[50]

16. The Authority found that there was no evidence to indicate that the applicant had been involved in activities since arriving in Australia that would have brought him to the adverse attention of the authorities.[31] With reference to country information relating to returned asylum seekers, the Authority was not satisfied that the applicant would attract the adverse attention of the authorities or was otherwise of interest to them. Further, the Authority was not satisfied that the applicant would have his right to free movement limited or that he would be prevented from obtaining an Iranian passport. The Authority was not satisfied that he faced a real chance of any harm as a returning asylum seeker from a Western country.[32]

    [31] CB 249 [51]

    [32] CB 249 [52]-[54]

17. Overall, the Authority was not satisfied that the applicant had a well-founded fear of persecution, or that he faced a real chance of any harm on account of the bases considered.[33]

    [33] CB 250 [56], [60]

    THE PRESENT PROCEEDINGS

18. These proceedings began with a show cause application filed on 11 March 2020. The application was filed eight days outside the period prescribed in s 477(1) of the Migration Act. The applicant sought an extension of time under s 477(2) of the Migration Act. The application was supported by an affidavit filed with it, which I received. The applicant now relies upon an amended application filed on 17 August 2020.

19. In support of an extension of time, the applicant refers to hospitalisation and a nervous breakdown and late notification of the Authority decision.  No evidence was offered to support those assertions. 

20. I have before me as evidence the court book filed on 26 June 2020. 

21. I also received, subject to relevance, the affidavit of Katherine Louise Evans made on 2 February 2021.  Annexed to that affidavit is a bundle of AUSTRAC[34] documents.

    [34] Australian Transaction Reports and Analysis Centre

22. The applicant acknowledged receipt of the Minister’s outline of submissions, but told me that he had not read those submissions.  I dealt with that by having the Minister’s solicitor present her submissions orally through the interpreter.  In the course of those submissions I noted that the notification of the Authority’s decision reproduced at CB 235 did not include the fact sheet which would have advised the applicant of his appeal rights.  Although the Minister submits that these fact sheets are generally not included in the court book, in a case of an application for an extension of time their omission, in my view, is undertaken by the Minister at his peril.  In the present case I was unable to be satisfied that the applicant was informed of his rights of judicial review. 

23. That, coupled with the short length of the delay, the explanation offered for it and the grounds of review, which were not on their face wholly unarguable, led me to the view that I should grant an extension of time in the interests of the administration of justice.  The matter then proceeded as a final hearing. 

24. I invited oral submissions from the applicant.  He initially took issue with the merits of the Authority decision as explained in the Minister’s oral submissions, and I explained to the applicant that he would need to point to some legal mistake made by the Authority.  The applicant then referred to the AUSTRAC documents.  He admitted making a number of money transfers to Iran.  He told me, however, that these were entirely lawful and if the Authority was going to make some use of them it should have informed him.  I then confirmed with the Minister’s solicitor whether there was any mention in the Authority decision of the AUSTRAC documents.  She answered in the negative.  My own examination of the Authority decision confirms that the applicant’s money transfers and the AUSTRAC record of them played no part in the Authority decision. 

25. The applicant was otherwise unable to advance his judicial review application.  In my view, the Authority decision is free from jurisdictional error. 

26. The Minister’s submissions deal with the grounds of review advanced by the applicant.  I agree with those submissions and adopt them. 

27. As noted above, the applicant filed an amended application on 17 August 2020. That application reproduces the Authority’s findings and under the heading “Claims to relied upon are”, the applicant sets out grounds of review.

28. Ground 1 contends that (reproduced without alteration):

    Immigration Assessment Authority had given weight upon the new penal code which was changed in 2013 which had made changes on death penalty and according to new penal code death penalty is given on fourth alchol related offence and because of that changes they had considered that applicant doesnt have real harm upon return to Iran.

29. While the error advanced in Ground 1 is unclear, to the extent the applicant contends that the Authority erroneously gave weight to outdated country information, he misunderstands the Authority’s findings. The Authority summarised the punishments for the consumption of alcohol as set out in the old Penal Code and revised Penal code at [41]-[42] of its reasons. The Authority also set out country information relating to the use of alcohol in Iran and media reports of prosecutions for alcohol. Having set out this country information, the Authority relevantly found at [45] that:

    …in assessing his risk of being harmed in the future, I give greater weight to the more recent information set out above concerning the very large use of alcohol in Iran, the change in the approach of the Iranian authorities that it is considered a medical issue, and that whilst media reports of prosecutions for alcohol exist, they are not common and that in most cases people are fined not lashed.”

30. Accordingly, the Authority could not be said to have relied on outdated country information. In any event, it is well settled that the country information to which a decision-maker has regard and the weight it gives that information is a matter for it.[35] No jurisdictional error is revealed by the Authority giving greater weight to country information before it which did not support the applicant’s claims.[36]

    [35] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11].

    [36] EGY18 v Minister for Home Affairs [2019] FCCA 1874 at [55]-[56].

31. Ground 2 asserts two errors: that the Authority:

    (a)“didn’t investigate the applicant’s records in detail”; and

    (b)should have afforded the applicant the opportunity to “explain”.

32. In relation to (a), this contention goes no higher than seeking impermissible merits review. The Authority provided detailed reasons for its decision which included consideration of the applicant’s documentary evidence, see for example [13], [29]. Accordingly, this contention is without merit.

33. Turning to (b), the applicant misunderstands the review process imposed by Part 7AA. The Authority complied with the limited procedural fairness obligations imposed on it by Division 3 of Part 7AA of the Migration Act. Section 473DA provides that Part 7AA Division 3 (together with ss 473GA and 473GB) is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to Authority reviews. The combined effect of ss 473DA(1), 473DB(1) and 473DC(2) is that the Authority is required to conduct a review of the delegate’s decision on the papers – expressly without the need to provide an opportunity for the applicant to provide further information or to interview the applicant and provide an opportunity for comment.[37] There was no obligation on the Authority to provide the applicant with an opportunity to comment on any aspect of his claims or to permit time to conduct further investigations.[38] Insofar as the Authority may have had an obligation to put “new information” to the applicant for comment under section 473DE(1) of the Migration Act, in the present case, there was no new information provided by the applicant, or otherwise obtained by the Authority. In those circumstances, this ground is without merit.

    [37] Migration Act 1958 (Cth), ss 473DB(1)(a)-(b) and 473DC(2); DGZ16 v Minister for Immigration and

    [38] DGZ16 at [75]-[76].

34. I conclude that the applicant is unable to establish that the decision of the Authority is effected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

1. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed.  The applicant told me that he had been assisted by a friend in making his court application and he was told that there would be no costs order.  He said that if he had known he was exposed to a costs order he would never have applied.  He also told me that the costs order would be ridiculous because if he had the money to pay it he would have hired a lawyer for the purposes of today’s hearing.  Those submissions, while relevant to my exercise of discretion on costs, are not persuasive.

2. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,467.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.

Associate:

Dated:       15 March 2021

Border Protection [2018] FCAFC 12 at [75].