BDA19 v Minister for Home Affairs

[2019] FCCA 2778

FEDERAL CIRCUIT COURT OF AUSTRALIA

BDA19 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2778

Catchwords:
MIGRATION – Application for safe haven enterprise visa – claims of fear of harm on the part of the applicant if returned to Iran without foundation – country information – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36(2)(a), 36(2)(aa), 473CB

Cases cited:

Minister for Immigration and Citizenship v SZMDS (2010) 246 CLR 611

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429

Applicant: BDA19

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 267 of 2019

Judgment of: Judge Egan

Hearing date: 20 September 2019

Date of Last Submission: 20 September 2019

Delivered at: Brisbane

Delivered on: 20 September 2019

REPRESENTATION

Applicant: In Person

Solicitor for the First Respondent: Ms Reid of Clayton Utz

ORDERS

1. The application for review filed on 15 March 2019 be dismissed.

2. That the applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 267 of 2019

BDA19

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Iran who arrived in Australia as an Unauthorised Maritime Arrival on 11 July 2013.

2. On 1 June 2017 the applicant lodged an application for a Safe Haven Enterprise Visa (SHEV). 

3. On 24 January 2019, a delegate of the Minister refused to grant the visa to the applicant.  On the same day, the matter was referred for review to the Immigration Assessment Authority (the Authority). 

4. On 11 March 2019, the Authority affirmed the decision of the delegate. 

5. On 15 March 2019, the applicant filed an application for review of the decision of the Authority.  The grounds for such application were as follows:

   Grounds of application:

   1. The Immigration Assessment Authority and the delegate of the Minister for Home Affairs erred in law in making his decision.

6. The applicant’s claims for protection were set out at [5] of the reasons of the Authority as follows:

   ·He is an Azeri Turk from Tehran, Iran and a non-practising Muslim.

   ·He travelled to South Korea in 2008 on a three month visa with the intention of staying permanently. He overstayed his visa and remained living in this country for a period of approximately 18 months until he was deported back to Iran. During his time living in South Korea he acquired a number of tattoos including two he considers are satanic in nature.

   ·After being deported from South Korea in 2009/2010 he was intercepted by the Sepah at the airport in Tehran and interrogated about why he overstayed his South Korean visa.

   ·During the interrogation, the Sepah noticed his tattoos and began harassing him, questioning his commitment to the Islamic faith and whether he worshipped Satan. This interrogation went for three or four hours after which time his family paid some money to the authorities and he was free to leave.

   ·A week later he was at a local swimming pool and was confronted by a number of members of the community who asked about his tattoos. They questioned if he worshipped Satan and said he was a bad influence.

   ·He was afraid of the Basij finding him if they found out his reputation as a 'devil worshipper' because of his tattoos so to avoid detection the applicant covered his tattoos with clothing and left home very early every day to go to work and did not come home until late at night.

   ·The day prior to him deciding to leave Iran he became involved in a heated argument about his tattoos with two of his friends who told him they had friends in the Basij and they were going to report him.

   ·Fearing that he was going to be reported to the Basij, the applicant borrowed money from his family and travelled to Indonesia to find a people smuggler who could assist him to travel to Australia.

   ·If he returns to Iran he will be arrested for being against Islam because of his tattoos and imprisoned, tortured and executed.

   ·He is also at risk of adverse attention if he were to return to Iran because he will stand out as someone who has lived in a Western country.

7. At [3] of its reasons, it was noted by the authority that it had had regard to the material provided by the secretary pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (the Act).

8. At [34] – [35] of its reasons, the authority relevantly set out the criteria for refugee assessment pursuant to the provisions of s. 5H(1) of the Act, and s. 5J of the Act. At [51] – [52] of its reasons, the Authority set out the criteria for complementary protection assessment.

9. At [36] – [39] of its reasons, the Authority accepted that the applicant was a non-practicing Muslim but that, based on the applicant’s evidence and country information, it was not satisfied that the applicant would face any real harm on the basis of his religions practices if returned to Iran.  It noted that there was no evidence that the applicant had been, or intended to be, critical of Islam or the Koran in any public way.  The country information relied upon was the Department of Foreign Affairs and Trade (DFAT) Country Information Report from Iran dated 7 June 2018.  Such report recorded that people who abstain from practicing Muslim rituals in Iran were not usually monitored by Iranian authorities.  It was recorded that a large proportion of Iranians do not regularly attend mosques.  It was noted, however, that people who were critical of Islam and the Koran in a public forum, such as on social media, could face the death penalty or imprisonment.

10. The Authority accepted that the applicant had acquired tattoos, and considered the applicant’s claims that the tattoos were considered to be satanic in nature.  The Authority, at [40] – [43] of its reasons, considered in detail the question of the applicant having tattoos.  The applicant’s assertions to the effect that he would face imprisonment, torture and execution for having tattoos if he was returned to Iran was unsupported by country information.  [1]

    [1]        DFAT Country Information Reports of 21 April 2016 and 7 June 2018. 

11. The effect of the country information was that the applicant was unlikely to receive any adverse attention by reason of his having tattoos.  At [46] of its reasons, the Authority found that it did not accept that the applicant would be of interest to Iranian authorities by reason of his tattoos, or by reason of his having left Iran.  It was noted by the Authority that an alleged incident where the applicant said that certain persons had threatened to report him to the authorities for having tattoos had occurred many years ago, and that the applicant had continued to reside in Iran for a further three years after that incident without further attention from the authorities.  It also noted that the applicant was able to depart Iran without difficulty.  On that basis, the Authority was not satisfied that the applicant would come to the attention of the authorities if returned to Iran, or that he would be questioned by the authorities, because any return was not analogous to his previous return to Iran from South Korea, that being an occasion of deportation for overstaying in South Korea after the expiration of his visa. 

12. At [48] of its reasons, it was recorded by the Authority that the available country information did not support a finding that people who were not of interest to the Iranian authorities, and who had sought asylum in western countries, such as Australia, even if they had tattoos, were imputed to hold anti-Iranian Government political opinion, or that they would be suspected of being a spy, or otherwise face a real chance of harm on that basis. The Authority was not satisfied that the applicant would face any questioning if he was to return to Iran, or that he faced a real chance of harm on that basis. The Authority found that the applicant did not meet the relevant section 36(2)(a) criteria.

13. As to complementary protection criteria, the Authority found for the same reasons that the applicant did not satisfy the section 36(2)(aa) criteria.

14. The unparticularised claim made by the applicant has not been established as having any merit.  The fact of its lacking in all relevant respects any particularity gives rise to the reasonable submission made on behalf of the first respondent that the application for review ought to be dismissed on that basis alone.  However, independently of that issue, it cannot be said that no other rational or logical decision-maker could not have made the same decision as did the Authority.  As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 246 CLR 611 at [130]:

    “130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.  The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error.  A court should be slow, although not unwilling, to interfere in an appropriate case.”

15. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

    “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

16. Further, it cannot be said that the Authority, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429 at [25]-[27] inclusive where it was said:

    “[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

    [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

    [27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”

17. No jurisdictional error has been established on the part of the Authority. 

18. The application for review is without merit and is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate: 

Date:  2 October 2019