BFT17 v Minister for Immigration

[2018] FCCA 2066

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFT17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2066

Catchwords:
MIGRATION – Application for an extension of time for review of an International Treaties Obligation Assessment – no adequate or reasonable explanation for the delay – where grounds of review are unparticularised –procedural fairness not denied – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 477

Applicant: BFT17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ITOA ASSESSOR

File Number: MLG 580 of 2017

Judgment of: Judge Hartnett

Hearing date: 19 July 2018

Delivered at: Melbourne

Delivered on: 19 July 2018

REPRESENTATION

The Applicant: In Person

Solicitor acting as Counsel for the First Respondent: Ms Arduca

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 580 of 2017

BFT17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ITOA ASSESSOR

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application for an extension of time to seek review of an International Treaties Obligation Assessment (‘ITOA’) dated 21 October 2015, which found that the Applicant was not a person to whom Australia owed non-refoulement obligations.

2. The application was filed on 23 March 2017. The application for an extension of time is necessary because any application in relation to the ITOA should have been made by the Applicant within a 35 day period, as specified in s.477(1) of the Migration Act 1958 (Cth) (‘the Act’). Section 477 is, relevantly, as follows:-

   “MIGRATION ACT 1958 - SECT 477

   Time limits on applications to the Federal Circuit Court

   (1)  An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

   (2)  The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a)  an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b)  the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

...”

1. The Court is not satisfied that it is necessary in the interests of the administration of justice to make an order extending time as sought by the Applicant. The matters which the Court has considered in respect of that application are as follows.

The delay

1. The Applicant has filed his application some 519 days out of time.  This is a very considerable period. The Applicant filed no written submissions (the Court made an order he do so), but made oral submissions this day and also relied upon an affidavit affirmed by him on 22 March 2017. In that affidavit, the Applicant indicated that he wished to explain the reason for the delay in the filing of the application. 

2. The Applicant’s evidence was that in or about late 2014, he was contacted by the Department of Immigration and Border Protection (‘the Department’) and told that his case was going to be reconsidered by the Department. He was subsequently contacted by BMA Lawyers, his then lawyers, who assisted him in filling out necessary forms relating to his ITOA. The Applicant’s migration agents also accompanied him to his interview at the Department on 28 January 2015.  The Applicant’s evidence is that he was not thereafter contacted by anybody after his interview on 28 January 2015. He heard nothing further from the Department nor his lawyers until around January 2017, when he was contacted by a person who identified himself as being from the Department and who informed him that he was living illegally in Australia, and that he needed to return to his country. The Applicant’s sworn evidence is that this was the first time he had heard that the Department had reached a decision concerning his case. Further, that it was not until 15 March 2017 that he became aware that the Department had made a negative decision on his ITOA.  He claimed to have had no knowledge of the decision being made prior to 15 March 2017. 

3. In oral submissions this day, the Applicant submitted that, as he did not have any sort of visa granted to him by the Department since 2014, when his visa was cancelled, he had no right to work in Australia and obtained financial assistance, and assistance with living, from the Red Cross.  He claimed the decision of the Department to cancel his visa caused him to become a homeless person and a beggar.  He submitted further that although he may have been found not to be a refugee, he had a basic right to reside in Australia.  He claimed that he was now being assisted by a church, and that his address for service, being a residential address in Glen Iris, was a property adjoining the church. He claimed he was taking medication for a mental condition; seeing a psychiatrist; and going through considerable difficulties living in Australia.  He submitted that if it was safe for him back in Iran, then he would not need to go through the difficulties he is encountering in Australia. As a consequence of being a homeless person, the Applicant claimed, he did not receive correspondence from the Department as he had moved from 39 Ruby Way Braybrook in the State of Victoria being the address which he had given to the Department. He also submitted, in response to the Court pointing out to him that the correspondence had also been sent to his lawyers, that he had had no communication with his lawyers after the Departmental interview of January 2015.

4. The submissions made by the Applicant, he claimed, together with his affidavit evidence, went to supporting the first ground of his application, which was to allege that procedural fairness had not been accorded to him.  The Applicant claimed that the lack of provision of a visa to him, with work rights, had rendered him homeless, and that this should not (procedurally) have occurred. 

Background

1. The Applicant was born on 22 November 1982 in Iran. The Applicant arrived as an unauthorised maritime arrival and claimed that he had flown from Tehran to Jakarta, and after staying in Indonesia for around 12 days, travelled by boat to Australia. The Applicant arrived in Australia on 18 August 2010.  He applied for a refugee status assessment on 30 October 2010 and was interviewed by an RSA officer with the assistance of a Kurdish Faili interpreter on 20 November 2010.

2. The Applicant claimed that his mother, brother and sister live in Iran, and that his father is deceased.  He claimed that his parents were issued green cards by the Iranian authorities after they were expelled from Iraq in the early 1980s by Saddam Hussein.  The Applicant claimed that many Faili Kurds were deported back to Iraq by the Iranian government in the early 2000s, but that they were turned back by the Iraqi government because they had no identity.  The Applicant claimed that he had been living in Iran illegally since he and his family’s green cards were confiscated by the Iranian government in the early 2000s, and that without identity he could not access services available to Iranian citizens.  The Applicant claimed he left Iran because he was Stateless and had no identity and that if he were to return to Iran, he would suffer persecution on a daily basis from the authorities. He claimed that because he had no identity, he would be accused of being a spy because he had gone to another country. Should he return to Iran, he claimed he would be harmed and mistreated there.  He claimed he could not return to Iraq because he would be harmed and mistreated there also, because he is a Kurdish Faili with no identity. 

3. On 10 December 2010, the Applicant was found by an RSA Officer of the Department not to meet the criterion for a protection visa. 

4. On 18 January 2011, the Applicant applied for an Independent Merits Review (‘IMR’) and was interviewed on 4 July 2011.  On 22 July 2011, the Reviewer made a recommendation that the Applicant did not meet the criterion for a protection visa.

5. On 22 August 2011, the Applicant filed an application for judicial review to the then Federal Magistrates Court of Australia, seeking review of the recommendation made by the IMR.  By decision of 21 November 2012, of Lindsey FM, the application for review filed on 22 August 2011 was dismissed. 

6. By correspondence of 14 October 2014, the Department notified the Applicant’s lawyers, BMA Lawyers, that:-

   “Due to recent legal developments and changes to departmental policy the Department of Immigration and Border Protection (the department) will no longer be relying on their previous International Treaties Obligations Assessment (ITOA) and/or Post Review Protection Claims (PRPC) assessment.

   The department will now undertake a re-assessment of your client’s protection claims as part of a new ITOA.  Protection claims that your client has submitted for the purposes of previous assessments will be considered as part of this ITOA. However, your client may wish to submit further information to be considered in this assessment.

   Please note that a copy of attached letter has been provided to your client.”

7. The ITOA thus commenced on 14 October 2014.  By correspondence of 3 November 2014, BMA Lawyers, forwarded to the Department, on behalf of the Applicant:-

   a)an ITOA submission in support of the Applicant; and

   b)a copy of the Applicant’s mother’s expired green card. 

8. By correspondence of 19 November 2014 from the Department to BMA Lawyers and the Applicant, the Department said, relevantly, as follows:-

   “As part of this ITOA, the department is currently considering country information relevant to your case. 

   You are invited to attend an interview to discuss your claims and to provide comment on any adverse information; this may include but is not limited to country information.” 

9. The Applicant was invited to comment on information provided by him and on country information. The Department noted that it had assessed the Applicant’s claimed Statelessness and concluded that he was likely a citizen of Iran. The letter also invited the Applicant to comment on country information that Faili Kurds in Iran are not persecuted on the grounds of race, and that he does not have a profile that would cause the Iranian authorities to take an adverse interest in him if he returned to Iran.  Additionally, the Department noted further claims made by the Applicant in the submission received by the Department of 3 November 2014, those claims being that the Applicant was:-

   a)agnostic;

   b)had renounced Islam;

   c)did not currently believe in a religion, and

   d)had been studying and researching Christianity and visiting church from time to time. 

   The Department requested that the Applicant provide detailed information in writing about the additional claims, ahead of his scheduled interview, which had been arranged for 16 December 2014.  The Applicant was advised that he must respond to the invitation to comment and provide information within 14 days after he was taken to have received the correspondence. 

10. The 16 December 2014 hearing was subsequently rescheduled to 28 January 2015. On that date, the Applicant attended an interview with the assessor in the company of his migration representative. 

11. On 21 May 2015 a second letter was sent to the Applicant providing him with a further opportunity to comment on information relevant to his ITOA. A copy of the letter forwarded to BMA Lawyers was provided to the Applicant. Again, relevantly, the Department noted that the Applicant was:-

    “…invited to provide written comment on the following information that may be adverse to your case;  this may include but is not limited to country information.”

12. The Applicant was advised that concerns were held about the credibility of elements of his claims and testimony, including the following:-

    a)he was an undocumented, Stateless person living in Iran;

    b)he had no nationality or citizenship;

    c)as a Faili Kurd, he was Stateless;

    d)he was of a profile that would attract the adverse interest of Iranian authorities;

    e)he experienced harm on the grounds that he was a Stateless Faili Kurd;

    f)he departed Iran on a false passport;

    g)he held a green card which was renewed on his behalf;

    h)he renounced Islam and was investigating Christianity; and

    i)he feared return as a failed asylum seeker and a returnee from the west.

13. The Department advised the Applicant that it considered country information did not support his claims and cast serious concerns regarding the credibility of his case. That country information was thereafter set out in the correspondence of 21 May 2015 to the Applicant and BMA Lawyers.  Again, the Applicant was told:-

    “You must respond to this invitation to comment within 14 days after you are taken to have received this letter.” 

14. By correspondence of 19 June 2017, BMA lawyers provided detailed submissions on behalf of the Applicant in response to the issues raised. 

ITOA decision

1. The assessor found that the Applicant was not an undocumented, Stateless Faili Kurd and did not accept the Applicant’s claim to fear harm for this reason.  The assessor noted that in 2013, the Department conducted a Stateless status assessment with regard to the Applicant and found that, based on the interview and assessment of his case, the Applicant was not Stateless and was likely a citizen of Iran. The assessor was thus satisfied that the Applicant was “An ethnic Kurd and an Iranian citizen.”[1]

   [1] ITOA, section 2, ‘client details’.

2. The assessor was not satisfied that the Applicant would face a real chance of persecution in Iran for reasons of his Faili Kurdish ethnicity or for an imputed political opinion of being in opposition to the Iranian government and pro-separatist movements. The assessor found that Iran was the relevant country for the purpose of assessing whether the Applicant was owed non-refoulement obligations and was not satisfied the Applicant would be of interest to the Iranian authorities due to being a returned failed asylum seeker, or because he would be imputed as holding anti-Islamic views.  Accordingly, the assessor found Australia did not have non-refoulement obligations to the Applicant under the Refugees Convention.

3. The assessor found there was not a real chance the Applicant would be harmed by the Iranian authorities or that he would face serious harm for his Faili Kurdish ethnicity, his political opinion or his anti-Islamic views when making findings under the complementary protection provisions. The assessor found the Applicant would likely be questioned by the authorities on his return to Iran as he did not have a passport.  As the Applicant did not have a political profile and was not wanted by the authorities, the assessor found he would not be of interest to the Iranian authorities and that questioning by the authorities in these circumstances would not constitute serious harm.  The assessor was not satisfied the Applicant would be imputed with holding anti-Islamic sentiments by virtue of being a member of an ethnic minority, a returnee from a western country or for claiming asylum in a western country.

4. The assessor relied on the same evidence as that in respect of its consideration of matters under the Refugee Convention to find that there was no real risk that the Applicant would be significantly harmed or arrested by Iranian authorities nor that there was a real risk the Applicant would be arbitrarily deprived of his life, would suffer torture, suffer cruel or inhumane treatment or punishment or suffer degrading treatment or punishment by Iranian authorities for the purposes of s.36(2)(aa) of the Act.

5. Further, the assessor was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia there was a real risk he would suffer significant harm in his home country. The assessor found Australia did not have non-refoulement obligations to the Applicant for complementary protection reasons. 

6. The assessor also, when considering the evidence before him, noted the procedural fairness afforded to the Applicant, setting out that adverse information had been put to the Applicant by correspondence of 19 November 2014 from the Department to the Applicant, and considered the response received by the Department as set out in the assessment.  The assessor also noted the adverse information put to the Applicant in correspondence of 21 May 2015 from the Department to the Applicant and considered, as set out in the assessment, the Applicant’s response to that adverse information. The assessor clearly considered the responses of the Applicant to the two invitations to provide comment.  That consideration was addressed under the heading ‘Findings of Fact (Credibility)’.  The assessor noted that in considering the Applicant’s answers, the assessor found that:-

   “There are significant concerns about the events that the claimant described that led to his leaving Iran.”

7. Many of the other claims made by the Applicant were not accepted by the assessor as they related directly to the Applicant’s claim of being undocumented and Stateless.  The assessor considered the claim of the Applicant to be of Faili Kurd ethnicity and determined, when considered cumulatively, that he was prepared to accept that the Applicant was a Faili Kurd, as claimed. 

8. The assessor set out in some detail in the decision, the assessor’s consideration of the additional claim of the Applicant of December 2014 being that he feared harm upon return to Iran because he had renounced Islam; did not currently have a religion; and would therefore be considered as an apostate. The assessor considered the evidence of the Applicant to be implausible; increasingly confused; at times incoherent; and his testimony to be unconvincing, raising serious doubts about the credibility of the Applicant’s evidence.  The assessor concluded that:-

   “I am not convinced that the claimant has been truthful in his claim that he has renounced Islam and I am of the opinion that he has fabricated this claim as an attempt to bolster his case for protection.  I find that his reasoning for failing to mention this claim, despite having had ample opportunity to do so over a period of some four years, and the contradictory evidence he provided at interview, indicates that he has not genuinely renounced his religion as claimed. …” 

Consideration

The delay

1. The Applicant provided no adequate or reasonable explanation for his lengthy delay.  His claim that he was not aware of the ITOA is contradicted by the documentary evidence which is before the Court.  Even if the Applicant’s submission is correct that BMA Lawyers failed to communicate with him after 28 January 2015, and there is no evidence before the Court to support that claim, a copy of all correspondence sent to BMA Lawyers, including the ITOA decision, was sent directly to the Applicant by registered post. There is no evidence before the Court that the letters were not received by the Applicant or returned to the First Respondent. Furthermore, as highlighted by the First Respondent, the evidence that is contained in the Court Book at page 293, being correspondence from BMA Lawyers, acting on behalf of the Applicant, dated 19 June 2015, is evidence of the Applicant’s migration lawyers providing a detailed response on behalf of the Applicant to the invitation to comment on adverse information from the Department of 21 May 2015.  It is unlikely that BMA Lawyers would have provided such a response if they were no longer in contact with, or acting for, the Applicant. 

The substantive application

1. The Applicant’s grounds of judicial review are as follows:-

   “(1) The Second Respondent in making the ITOA failed to accord the Applicant procedural fairness and/or made an error of law.

   (2) The Applicant has made an application for legal assistance through Victoria Legal Aid and is awaiting a decision.”

2. The second ground of application is not a ground of judicial review.  The Applicant thus raises a single ground of review which is unparticularised. These reasons have already canvassed the Applicant’s claim that he was not afforded procedural fairness and that ground simply cannot be made out.  There is no basis to the submissions made by the Applicant nor to the ground itself.  The Applicant attended an interview with his representative on 28 January 2015. He was invited to provide written submissions on two occasions, the first being 19 November 2014 and the second being post-interview and on 21 May 2015.  His representative provided detailed submissions on 3 November 2014 in support of the application, and made two further submissions, one on 23 January 2015 and the second on 19 June 2015, both in response to the request for comment. 

3. The Applicant’s assertion that the Second Respondent in making the ITOA made an error of law is not particularised, and is, in that sense, meaningless.  The Applicant was unable to point to, (in oral submissions this day) any error of law or indeed any mistake in the Decision Record of the assessor.  When looking to that Decision Record, it is clear that no jurisdictional error is disclosed in the manner in which the assessor approached his task, nor in the assessor’s consideration of the Applicant’s claims and relevant materials as put before the assessor. The assessor correctly stated and applied the law and gave detailed consideration to those matters which were required to be considered by the assessor. 

4. The application cannot succeed and does not warrant the grant of an extension of time as sought by the Applicant. Accordingly, the application to extend time will be refused and a costs order shall accompany that order.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 31 July 2018