BBW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 814
•2 July 2021
FEDERAL COURT OF AUSTRALIA
BBW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 814
Appeal from: BBW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 446 File number: NSD 309 of 2021 Judgment of: LEE J Date of judgment: 2 July 2021 Catchwords: MIGRATION – appeal from Federal Circuit Court – where appellant claims fear of harm in returning to Iran due to alcohol related offences and overt political opposition to government policies – no error in Authority’s decision – no appealable error – appeal dismissed Legislation: Migration Act 1958 (Cth) s 473CB, 473DC, 477, Pt 7AA Cases cited: BBW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 446
DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Division: General Division Registry: New South Wales Number of paragraphs: 18 Date of hearing: 2 July 2021 National Practice Area: Administrative and Constitutional Law and Human Rights Counsel for Appellant: The Appellant appeared in person Solicitor for the First Respondent: Mr T Hillyard of Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 309 of 2021 BETWEEN: BBW20
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
LEE J
DATE OF ORDER:
2 JULY 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.
2.Order 1 not be entered until publication of the revised reasons for judgment.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the Transcript)LEE J:
A INTRODUCTION AND BACKGROUND
This is an appeal from orders and reasons of the Federal Circuit Court made on 9 March 2021, which dismissed the appellant’s application for judicial review in respect of a decision of the second respondent (Authority): BBW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 446 (primary judgment or J). The Authority had affirmed a decision of a delegate of the first respondent (Minister) not to grant the appellant a Temporary Protection (subclass 886) visa.
The appellant’s claims for protection were summarised by the primary judge below and need not be repeated here: see J [4]. The Authority, in accordance with the statutory requirements, had regard to the material given by the Secretary under s 473CB of the Migration Act 1958 (Cth) (Act) and did not obtain or receive any new information. In short, for the reasons set out by the Authority (and summarised by the primary judge (at [5]–[17])), the Authority did not consider the appellant to be a witness of truth, found that he did not face a real chance of any harm on account of the bases considered, and therefore did not have a well-founded fear of persecution if he was returned to Iran.
Before the primary judge an extension of time was sought and granted under s 477(2) of the Act. The appellant was not represented below and despite the Court making arrangements for the appellant to obtain pro bono representation in this Court on appeal, the pro bono counsel who originally accepted the brief communicated to the Court that he could no longer assist in relation to the matter. It follows that on appeal the appellant has also been unrepresented.
Presumably for this reason, the appellant has not filed any submissions.
B THE APPEAL
The only ground of appeal advanced in the notice of appeal is in the following terms:
1.FEDERAL CIRCUIT COURT HN JUDGE MADE AN ERROR IN DECISION.
(Reproduced without alteration).
Further, the appellant sought the following orders:
1.APPEAL TO BE ALLOWED.
2.FEDERAL CIRCUIT COURT ORDERS TO BE SET ASIDE.
(Reproduced without alteration).
Obviously enough, it is difficult to engage meaningfully with a ground of appeal expressed at such a level of generality. Despite this, given the appellant is unrepresented, I have, myself, reviewed the Tribunal decision and the primary judge’s reasons with some care to ascertain whether there is a ground of appeal that ought to be differently articulated. The appropriate course, in all the circumstances, seems to me to be to proceed on the basis that the ground of appeal asserts that the primary judge erred in dismissing the two grounds of review that were raised in the amended application below. Accordingly, it is appropriate for me to deal with each of those grounds separately.
B.1 Ground 1
Before the primary judge, Ground 1 was particularised in the following terms:
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 offense and because of that changes they had considered that applicant doesnt have real harm upon return to Iran.
(Reproduced without alteration).
It appears that the crux of this complaint is that the Authority proceeded erroneously by giving weight to outdated country information. In dealing with this matter, the primary judge referred to the Authority’s summary of the punishments for the consumption of alcohol set out in the old and revised Penal Code, and the summary of country information and media reports relating to the use of alcohol in Iran. Having set out this country information, as the primary judge appreciated, the Authority went on to conclude (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.
The primary judge came to the conclusion that the Authority could not be said to have relied upon outdated country information and further, in any event, the weight to be given to country information was a matter for the Authority and no jurisdictional error is revealed by the Authority giving greater weight to country information before it which did not support the appellant’s claims: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (at [11] per Gray, Tamberlin and Lander JJ). In my view, there is no error demonstrated in the rejection of Ground 1 by the primary judge.
B.2 Ground 2
The second ground of review advanced below was in the following terms:
Immigration Assessment Authority had erred in making decision by not investigating the applicants records in detail and didnt provide the opportunity for explanation.
(Reproduced without alteration).
As the primary judge states in respect of this ground, any contention that the Authority did not investigate the appellant’s records in detail goes “no higher than impermissible merits review”: J [32]. Indeed, as the primary judge recognised, the Authority provided detailed reasons for its decision, which included consideration of the appellant’s documentary evidence.
Further, for the sake of completeness, in relation to the contention that the Authority should have afforded the appellant an opportunity to “explain”, the primary judge held, correctly in my view, that this misapprehends the review process mandated by Pt 7AA of the Act: J [33]. The primary judge concluded that the Authority had complied with the limited procedural fairness obligations imposed on it, which are, as is well known, to conduct a review of the delegate’s decision on the papers without a need to interview the appellant. The primary judge held, again correctly in my view, that there was no obligation on the Authority to provide the appellant with an opportunity to comment on any aspect of the claims or permit time to conduct further investigations: see DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 (at 570 [75]–[76] per Reeves, Robertson and Rangiah JJ). Further, this was not a case where there was “new information” that was obtained which would ordinarily need to be put to the visa applicant: see s 473DC of the Act.
Again, for completeness, the primary judge identified that at the hearing the appellant referred to AUSTRAC documents and submitted that the money transfers to Iran were entirely lawful and if the Authority was going to rely on them, it should have informed him. The primary judge held that the appellant’s money transfers and the AUSTRAC record were not referred to by the Authority and played no part in its decision: see J [24].
In all the circumstances, I can see no discernible error in the primary judge’s disposition of the second ground of review.
B.3 The appellant’s oral submissions
Before me, the appellant sought to assist the Court by providing a number of oral submissions. These submissions can be summarised as falling into a number of categories:
(1)that at all relevant times, he was telling the truth concerning his claims, including relating to his arrests for drinking and that he left Iran because he thought he would receive the death sentence under Iranian law for a third alcohol-related offence;
(2)that there is, to use my words, an inherent likelihood that he is telling the truth because he has now been absent from Iran for a period of approximately ten years in circumstances where his father is in very ill health and if he considered that he could have returned to the country, then it was plain that he would have done so;
(3)he genuinely believes his life is in danger by reason of the fact that he was, while in Iran, a “political person” who encountered a number of problems during the course of his military service and said things against the government which had got him into trouble, including being imprisoned, abused and hurt; and
(4)he considers the policies of the Iranian government to be such that young persons’ lives are of little or no significance, and for this and the other reasons he has identified, he has a genuine fear that if he was to return to Iran, he would be in grave danger.
I attempted to explain to the appellant, through the interpreter, the nature of my role, which is to determine whether or not there was error in the way in which the primary judge dealt with his matter and does not extend to a review of the merits. The difficulty the appellant faces is that the approach taken by the Authority to dealing with his claims might be one with which he strongly disagrees, but it has not been shown to be attended with jurisdictional error, nor does the way in which the primary judge dealt with the matters before him reveal appealable error.
C CONCLUSION AND ORDERS
For these reasons, the appeal must be dismissed with costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee. Associate:
Dated: 19 July 2021
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