Bgi17 v Minister for Immigration

[2019] FCCA 161

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGI17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 161

Catchwords:
MIGRATION – Safe haven enterprise visa – whether risk at the hands of state actors or non‑state actors – complementary protection – claims not made out – application dismissed.

Cases cited:

Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

Applicant: BGI17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 597 of 2017

Judgment of: His Honour Judge J D Wilson QC

Hearing date: 26 November 2018

Date of Last Submission: 26 November 2018

Delivered at: Melbourne

Delivered on: 31 January 2019

REPRESENTATION

Counsel for the Applicant: Mr A F Solomon‑Bridge

Solicitors for the Applicant: Victoria Immigration Lawyers

Counsel for the First Respondent: Mr C Tran

Solicitors for the First Respondent: Mills Oakley Lawyers

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Mills Oakley Lawyers

ORDERS

1. The application filed on 24 March 2017 as amended on 29 October 2018 is dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the amount of $5 625.10.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 597 of 2017

BGI17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By amended application filed on 24 March 2017 as amended on 29 October 2018, the applicant relied on three grounds to contend that the Immigration Assessment Authority fell into jurisdictional error in its decision made on 23 February 2017.

2. In essence, the applicant said the IAA came to an irrational conclusion when finding that the applicant was not owed protection obligations by Australia.  The applicant said the IAA accepted that the applicant was engaged in a sexual relationship with his cousin, she had fallen pregnant to him, the pregnancy was aborted with the assistance of the applicant and the woman’s father and brother threatened to kill the applicant.  The applicant said he was unable to return to Iran.

3. The minister contended that the application for judicial review should be dismissed.

Synopsis

1. For the reasons that follow, in my judgment the IAA made no error in this case with the consequence that this application for judicial review must be dismissed and the applicant must pay the minister’s costs.

Relevant factual narration

1. The applicant is a citizen of Iran who arrived in Australia on 18 October 2012 as an unauthorised maritime arrival.  When answering the first question on his entry interview documentation about why he left his country of nationality he said he had a relationship with his cousin of which his uncle and family did not approve.

2. On 31 March 2016 the applicant applied for a safe haven enterprise visa.  He completed a statement that accompanied the visa application.  Several matters emerged from this statement.  Relevantly, in it he stated –

   a)he was not Islamic and he could not return to Iran by reason of his atheism that he said put him at risk of serious harm from the state and from his family;

   b)he had a relationship with his cousin for four years, she fell pregnant to him, her pregnancy was aborted, his uncle discovered the event and complained about the applicant in a civil court;

   c)the relationship was very difficult;

   d)if his cousin’s family found out the applicant was in Iran, the applicant would be made to pay for what the applicant had done;

   e)the applicant’s cousin’s elder brother was active in the Basij and would bring the applicant to account;

   f)he had a daughter out of wedlock to a woman he met in Australia, about whom he was unable to tell his family as his family would believe the baby had no right to life.

3. On 3 November 2016 the applicant’s representative provided the delegate with a written submission.  In it the applicant claimed protection on the basis of his atheism, his open opposition to the Iranian regime, his membership of a particular social group being either persons involved in adultery or failed asylum seekers.  He claimed complementary protection on those grounds as well as on the basis of a blood feud.

4. On 5 December 2016 the minister’s delegate refused the applicant the visa he sought.

5. On 8 December 2016 the applicant’s visa application was referred to the IAA. 

6. On 5 January 2017 the applicant’s migration agent provided written submissions to the IAA.

7. On 1 February 2017 the IAA wrote to the applicant inviting him to provide information about relocating to Tehran, in response to which the applicant’s migration agent provided an updated five‑page written submission sent by email on 15 February 2017.

8. The IAA affirmed the delegate’s decision not to grant the applicant the protection visa he sought.

9. It is instructive to address the more important findings that the IAA made.  After reciting the claims the applicant made (paraphrased above) the IAA said –

   a)in paragraph 24 of its reasons that the applicant accepted that the applicant was in a relationship with a person described as F in Iran and that the relationship was not accepted by either family;

   b)in paragraph 24 of its reasons that the IAA accepted that F became pregnant and the applicant arranged for her to have an abortion;

   c)in paragraph 24 of its reasons that the IAA did not accept that the applicant’s cousin’s father filed a lawsuit against the applicant;

   d)in paragraph 24 of its reasons that it was not satisfied the Iranian authorities were aware the applicant has engaged in sexual relations with F as the applicant’s claims were vague and they lacked detail;

   e)in paragraph 28 of its reasons that the IAA accepted that both families were not impressed with the applicant and that F’s father and brothers had threatened to kill the applicant but that the IAA was not satisfied the applicant’s or F’s family had expressed their intention of bringing the applicant to the attention of Iranian authorities;

   f)in paragraph 28 of its reasons that the IAA was not satisfied the applicant would come to the attention of the authorities if the applicant were to return to Iran; and

   g)in paragraphs 11 and 29 of its reasons that the applicant claimed F’s father’s cousins came to the applicant’s house and broke windows and glass;

   h)in paragraph 29 of its reasons in response to the claim that persons came to the applicant’s house and broke windows and glass, the IAA said –

   i)the applicant was not harmed and he escaped;

   ii)the event took place four years prior to February 2017;

   iii)there was no evidence that the applicant or F’s family occupied influential positions to enable them to carry out acts of retribution against the applicant;

   iv)there was no evidence showing the applicant had suffered past serious harm from either him or F’s family;

   v)the applicant was not aware of any harm F had suffered;

   vi)it was not satisfied F faced any threat of harm in Iran;

   vii)no detail was provided on the rank or standing that the applicant’s cousin had in the Basij or how his position would have an impact personally on the applicant; and

   viii)the IAA was not satisfied the applicant would face a real chance of serious harm as a result of a blood feud on his return to Iran now or in the reasonably foreseeable future.

10. The IAA affirmed the delegate’s decision not to grant the applicant a protection visa.

In this court

1. Being dissatisfied with the decision of the IAA, the applicant applied to this court for judicial review of the IAA’s decision.

2. He relied on three grounds of review, two of which were subjoined by particulars.  They were as follows –

   1.The Second Respondent committed jurisdictional error by addressing itself to the wrong issue, asking itself the wrong question, and/or by failing to consider the applicant's claims or their component integers.

   Particulars

   (a)The Second Respondent accepted that the Applicant was engaged in a sexual relationship with his cousin, that she had become pregnant, that that had resulted in an abortion assisted by the Applicant, and that the woman’s father and brother had threatened to kill the Applicant as a result ([28]).

   (b)The Applicant claimed there was no effective protection in Iran from that retribution ([29]).

   (c)The Second Respondent failed to consider whether there would be a relevant failure of state protection against those threatened harms, and instead only addressed itself to whether the Applicant would suffer harm directly at the hands of the authorities as a result of his behaviour.

   2.The Second Respondent committed jurisdictional error by addressing itself to the wrong issue, asking itself the wrong question, and/or by failing to consider the applicant’s claims or their component integers.

   Particulars

   (a)The Second Respondent accepted that the Applicant was engaged in a sexual relationship with his cousin, that she had become pregnant, that that had resulted in an abortion assisted by the Applicant, and that the woman's father and brother had threatened to kill the Applicant as a result ([28]).

   (b)In considering the Applicant's complementary protection claims, the IAA failed to consider whether the above amounted to a significant risk that the Applicant would be arbitrarily deprived of his life, and instead limited its consideration to harm the Applicant would face directly at the hands of the authorities.

   3.In the alternative, the Second Respondent committed jurisdictional error by coming to an irrational conclusion, namely that the Applicant faced no real chance of serious harm, or no real risk of significant harm at the hands of his family.

3. In support, Mr Solomon‑Bridge of counsel prepared and relied on written submissions dated 29 October 2018.  He appeared before me on 26 November 2018.  Likewise, Mr Tran of counsel prepared written submissions dated 12 November 2018.  He appeared by video link from Perth on 26 November 2018.

Ground one

1. Under this ground Mr Solomon‑Bridge said the jurisdictional error into which the IAA fell was its treatment of persecution perpetrated by state actors and its failure to appreciate the possibility of persecution by non‑state actors.  He said the IAA made its findings about whether the authorities were unable or unwilling to prevent the death threats from being carried out.  In support of his submissions, Mr Solomon‑Bridge relied on the High Court’s decision in Minister for Immigration and Multicultural Affairs v Khawar[1] to put the proposition that persecution need not be directly at the hands of government but may be done by non‑state actors where there is also a failure of State protection. 

   [1] (2002) 210 CLR 1

2. The applicant directed his challenge under this ground to paragraphs 28 and 29 of the IAA’s reasons.  He said those paragraphs evinced an approach to persecution that was perpetrated by state actors, yet the IAA failed to appreciate the possibility of persecution by non‑state actors.  He said the IAA made no findings about whether the authorities were unable or unwilling to prevent death threats form being carried out.

3. To that, Mr Tran submitted that it was necessary to identify precisely what was claimed.  He said the issue of effective state protection did not arise in light of the IAA’s view that there was no real chance of serious harm from the applicant’s cousin and uncle.  The minister called in aid the decision of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs.[2]  Mr Tran said that in paragraph 29 of the IAA’s reasons it was implicit in the IAA’s findings that there was no real chance of serious harm in view of the IAA’s observations that –

   a)the incident which the applicant claimed did not see him get harmed;

   b)his representative only stated the feared harm in a general way about being brought to justice;

   c)there was no evidence that his uncle and cousin were powerful or connected;

   d)there was no evidence of previous harm to the applicant or to F; and

   e)the IAA had rejected his claim about court litigation having been commenced against him.

   [2] (2003) 236 FCR 593 (at [47])

4. It seemed to me there was real force in the minister’s submissions.  Those issues referred to the immediately above bore upon the nature of the persecution alleged, whether state‑based or otherwise.  It seemed to me a valid basis existed for the conclusion that there was no real chance of serious harm.  It became academic thereafter to dissect whether the persecution was by a state actor or a non‑state actor.  That was for the simple reason that the IAA took the view that, as was revealed in paragraph 29 of its reasons, the feared harm was in a general way and it related to a fear of being brought to justice.

5. To my mind, there was no substance in the applicant’s first ground of review.

Ground two

1. Under this ground the applicant expressly said similar errors were expressed in the IAA’s reasons.

2. Under this ground, the applicant referred to paragraph 37 of the IAA’s reasons.  That paragraph was in the following terms (with the error in the original) –

   Although I accept that the applicant was in a relationship with F for some years before he left Iran, I am not satisfied that he was, or is, of any interest to the Iranian authorities for this reason or that faces a real chance of serious harm from the authorities or family in the reasonably foreseeable future on his membership on his membership of the particular social group of being an adulterer or because he was involved in a blood feud. For the same reasons, I find that there is no real risk of significant harm on this basis.

3. The applicant focused on the difference between state actors and non‑state actors.  Mr Solomon‑Bridge put the point succinctly in his written submissions in the following terms –

   24.In this regard, the Applicant notes two further matters:

   (a)If the IAA failed to consider potential significant harm by non-state actors, then that is an error, as complementary protection is not limited to those facing real risks of “official” harm.

   (b)Notably, the IAA does not appear to have considered whether the death threats (which it had accepted had occurred), if carried out by his uncle and cousin, would amount to being “arbitrarily deprived of his … life”, which is a possible basis for complementary protection under s 36(2A)(a) of the Migration Act 1958 (Cth).

4. I do not agree.  There was nothing in the state actor/non‑state actor dichotomy the applicant sought to enliven.  The simple point was that the IAA found there was no real chance of serious harm from the applicant’s uncle or cousin and there was no evidence of previous harm to the applicant or F.  It was ambitious to have cast this case in the way the applicant did, having regard to the IAA’s findings about the risk to the applicant of harm.

5. Ground two had no merit.

Conclusion

1. Both grounds of review fail.  I dismiss this proceeding and order the applicant to pay the minister’s costs. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of his Honour Judge J D Wilson QC

Date:     31 January 2019