BJL16 v Minister for Immigration
[2019] FCCA 1915
•17 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BJL16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1915 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – Application for judicial review of a decision of the Immigration Assessment Authority affirming the decision of a Delegate of the Minister for Immigration to refuse a Protection visa based on the applicant’s fear of harm arising from his Arab ethnicity and his anti-government political opinions as an activist – applicant claimed that Immigration Assessment Authority committed jurisdictional error in not considering the totality of his case and acted legal unreasonably and procedurally unfairly in in not disclosing to him that it was considering the rejection of claims that had been accepted by the Delegate – applicant fails to establish any jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5H, 36, 46A, 473CA, 473DC |
| Cases cited: AWA15 v Minister for Immigration [2018] FCA 604 CRJ17 v Minister for Immigration & Border Protection [2018] FCA 1404 |
| Applicant: | BJL16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1430 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 6 September 2017 |
| Date Judgment reserved: | 17 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 17 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp of Counsel |
| Solicitors for the Applicant: | Shelly Legal |
| Counsel for the First Respondent: | Mr T. Reilly of Counsel |
| Solicitors for the First Respondent: | DLA Piper |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Amended Application filed on 29 August 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1430 of 2016
| BJL16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Iran of Arabic ethnicity aged 42 years, having been born on 2 April 1977.
By Amended Application filed in this Court on 29 August 2017 he seeks to quash and have re-determined the decision of the Second Respondent, the Immigration Assessment Authority (IAA), dated 29 April 2016 under Part 7AA of the Migration Act 1958 (Cth) (the Act) which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 1 April 2016 refusing to grant to him a Safe Haven Enterprise (Subclass 790) visa (Protection visa).
Background
The Applicant was born at Ahwaz in Khuzestan Province in Iran and lived there all his life before departing Iran to commence his travel to Australia in October 2012. He arrived in Australia on Christmas Island as an unauthorised maritime arrival via Indonesia on 30 October 2012.
On 22 May 2015 the Minister, under s.46A(2) of the Act, lifted the bar precluding the Applicant from making a valid application for a visa under s.46A(1) so as to permit him to apply for a visa of a specified class, which he did by making his application for the Protection visa on 3 September 2015.
The Applicant was a “fast track applicant” as defined in s.5(1) of the Act because he was an unauthorised maritime arrival:
a)who entered Australia after 13 August 2012 but before 1 January 2014;
b)who was not taken to a regional processing country;
c)to whom the Minister had given written notice lifting the bar imposed by s.46A(1); and
d)who made, as he did, a valid application for a Protection visa.
Part 7AA of the Act had established a comprehensive scheme commencing on 18 April 2015 for a limited review by the IAA of specified adverse Protection visa decisions, such as the adverse decision of the Delegate refusing to grant to the Applicant a Protection visa in this case.
I do not consider that it is necessary to generally detail and recite the provisions of Part 7AA of the Act because that task has been comprehensively performed by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534 (AMA16) per Griffiths J at 538 – 541 [11] – [27], with the agreement of Dowsett and Charlesworth JJ. This statement in AMA16 of the nature and scope of Part 7AA was cited with evident approval by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ.
Claims for Protection
At the hearing in this Court when Mr Karp of Counsel appeared for the Applicant and Mr Reilly of Counsel appeared for the Minister, it was agreed that for the purposes of the case the Applicant’s claims to protection could be taken from Mr Karp’s Outline of Submissions for the Applicant, of which [3] – [8] are as follows:
[3]The applicant claimed, in a statement starting at Court Book 50 [(Statement)], that he faced discrimination in education and employment because of his [Arabic] ethnicity and political opinion. He claimed that in his employment as a mechanic he was insulted and discriminated against, and not granted permanency, because of his ethnicity and because he was an activist in support of rights of Iranian Arabs (Court Book 51), and whilst studying for his degree in Mechanical Engineering he was forced to give undertakings to stop his activism. He claimed that despite these undertakings he continued to participate in peaceful demonstrations and protests at the University, and that harassment led to his withdrawal from the University during the time when there were mass demonstrations following the 2009 elections.
[4]He claimed that from then onwards he and other activists were under more scrutiny. He was phoned and asked questions about his political views and contacts with activists outside Iran, and whether he had ever been on a pilgrimage to Mecca (Court Book 52 [21]-[22]).
[5]He claimed also that on 4 February 2012 three men entered his family home, beat he and his family, including his 64 year old mother, and that one of them pulled out a gun and fired several shots. After fleeing the scene he learned that his brother had been shot [(home raid incident)]. He returned to find that his father and brother were not at home and that policemen were questioning his neighbours. He pressed charges against the one assailant whom he could identify, he said later, by the name on his badge (Court Book 89 [28]).
[6]After this, and although his father and brother returned home three days later, the authorities turned against his family and started to cause problems for them. He left Ahwaz and travelled to the city of Istahan to stay with his uncle until he heard that his father had been arrested, apparently to force him to return. He had been told that whilst he was in Istahan a political separatist party printed details of the attack on his home, even naming one of the assailants (Court Book 54 [33]). He was suspected of supplying it with information.
[7]Fearing that he was not safe in Istahan he moved to Tehran hoping that the size of the city would protect him, and made plans through a travel agent to leave Iran.
[8]The Minister’s delegate interviewed the applicant on 6 November 2015 (Court Book 72). Considerable additional detail was given at that interview and is recorded at Court Book 88-89, including that the applicant left Iran on a visa in his own name from Imam Khomeini Airport in Tehran and that he did not have difficulties at the airport (Court Book 88). The applicant also claimed, at his interview, that one year previously (i.e. about November 2014) his brother was detained because he had converted from Shia to Sunni Islam, and because he had defended the applicant (Court Book 89 [21]).
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5]The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Decision of Delegate
The Applicant attended an interview with the Delegate on 6 November 2015 and at pages 3 – 6 of her Decision Record she set out the Applicant’s claims to protection made at the interview in addition to those made in the Statement. At page 16 of her Decision Record the Delegate summarized the Applicant’s claims to fear persecution as being due to his Ahwazi Arab ethnicity and his anti-government political opinion as an Ahwazi activist.
In the result the Delegate had regard to country information in relation to Ahwazi Arabs and held on the Applicant’s particular circumstances, as an educated and employed person of Arab ethnicity, that he did not face a real chance of serious harm in the reasonably foreseeable future and that the Applicant did not face a real chance of persecution in Iran by reason of his Arab race. The Delegate regarded the Applicant as a low-level political activist and also was not satisfied that the Applicant would face a real chance of serious harm or persecution for reason of a real or imputed political opinion in the reasonably foreseeable future, and found that the Applicant was not a refugee for the purposes of the Act. Likewise, the Delegate was not satisfied that for the purposes of the complementary protection criterion there was a real risk that the Applicant would suffer significant harm if he were to return to Iran and she refused to grant the Protection visa to the Applicant.
I note that the Delegate accepted that the home raid incident had occurred in the following terms:
[80]The applicant has been consistent in his application and at [the] interview relating [to] the details of a home raid taking place in February 2012. The claim of house raids as a means of gathering intelligence on Iranian citizens is supported by country information. On this basis I accept that the applicant's home was raided on one occasion in February 2012.
I further note as relevant to the Grounds considered below that the Delegate at [85] of her Decision Record found as follows:
a)“The applicant received a phone call from an unidentified caller nine months prior to his departure asking about his political views and any pilgrimages undertaken”.
The circumstances of that telephone call were set out earlier at [79] of the Decision Record of the Delegate, as follows:
[79] The applicant claimed in his application that he received a phone call in early 2012 from an unidentified caller - this occurred about nine months prior to his departure for Australia. The unidentified caller asked him about his political views and if he practised Islam. At the PV interview the applicant was able to provide details about the content of the phone call stating that it was a female caller who asked him questions about his relatives and any pilgrimages to Mecca. When asked what happened as a result of the phone call the applicant claimed that shortly after this phone call his home was raided. The applicant has provided sufficient consistent detail for me to accept this claim;
and
b)
“The applicant’s father was questioned for three days in 2012”.
This finding relates back to [75] of the Decision Record of the Delegate, which stated as follows:
[75]The applicant has claimed that in 2012 the applicant's father and brother were questioned for three days after the house raid by the authorities. At the PV interview the applicant claimed that since the departure of the applicant his father has been asked by local authorities about the applicant's whereabouts. Country information reports that questioning of family members of political activists can sometimes occur in Iran. For this reason I accept that the applicant's father and brother were questioned by the authorities in 2012.
Decision of IAA
On 4 April 2016 the Minister, pursuant to s.473CA of the Act, referred to the IAA the Delegate’s refusal to grant a Protection visa to the Applicant. No additional documents or submissions were provided or made to the IAA by the Applicant.
At [4] of its Decision Record the IAA summarized the Applicant’s claims to protection as made in his Statement and before the Delegate.
At [6] – [35] the IAA set out its factual findings in relation to the claims made by the Applicant under the headings of:
a)Political activism in Iran;
b)Telephone questioning;
c)Home raid and authorities’ interest in the Applicant;
d)Authorities’ interest in the Applicant’s family following his departure;
e)Political activism in Australia; and
f)Status upon return.
I note that at [15] of its Decision Record the IAA accepted that the home raid incident had occurred and that the Applicant’s brother had been shot.
The IAA then went on to assess the Applicant’s claims from [38] – [49] of its Decision Record under the headings of:
a)Arab race and political activism; and
b)Returning as a failed asylum seeker.
The IAA recorded at [41] of its Decision Record that it was “not satisfied that what the applicant experienced at university or his workplace were acts which even considered cumulatively were of a level to amount to serious harm” and that there was no evidence that this position would change if the Applicant were to return to Iran and that “On the country information before me I am not satisfied that Arabs face a real chance of serious harm on account of their race” in Iran.
At [42] of its Decision Record the IAA found that whilst the Applicant had participated in low-level demonstrations advocating for Arab rights and had suffered harassment and discrimination in Iran, he did not have a political profile and was not of interest to the Iranian authorities when he departed Iran and had not become of interest to those authorities since he left Iran. At [44] of its Decision Record the IAA stated:
[44]I am not satisfied the applicant faces a real chance of persecution by authorities upon return for reasons of his race, political opinion, or his connection with his brother.
At [46] – [48] of its Decision Record the IAA then considered the possibility of the Applicant facing harm due to being perceived as a failed asylum seeker, but found that he would not.
The IAA accordingly concluded at [50] that the Applicant did not meet the requirement of the definition of refugee in s.5H(1) of the Act and so did not meet s.36(2)(a).
The IAA then at [51] – [58] of its Decision Record considered whether the Applicant satisfied the complementary protection criterion, concluding at [58] that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Iran, there was a real risk that the Applicant would suffer significant harm, and that he did not meet s.36(2)(aa) of the Act.
Accordingly, the IAA affirmed the Delegate’s decision not to grant a Protection visa to the Applicant.
Notably, the IAA did not make the same findings as the Delegate recorded at [13] above. The IAA at [13] – [14] of its Decision Record considered the claimed telephone call in early 2012 from an unidentified female caller (2012 telephone call), but did “not accept the applicant was questioned or threatened on the phone as claimed”. Further, at [20] – [21] the IAA did not accept the claim that the Applicant’s father had been arrested, detained and questioned for two days about the Applicant’s whereabouts during the Applicant’s stay in Esfahan, some months after the home raid incident. I note that there is no explanation as to why the IAA referred to a period of two days and the Delegate to a period of three days, but nothing seems to turn on this.
Grounds of Attack on IAA Decision in this Court
The Grounds relied upon by the Applicant in his Amended Application were as follows:
1.The IAA erred in failing to consider the totality of the applicant’s case.
Particulars
(a) Failure to consider whether the police raid on the applicant’s family home was for reason of one or more of;
(i) The applicant’s ethnicity in combination with his dissident political activities;
(ii) His brother’s conversion from Shia to Sunni Islam, in combination with the family’s ethnicity;
(iii) The applicant’s political activities and the brother’s conversion, whether or not in combination with the family’s ethnicity.
and whether the applicant may suffer persecution in the future for any of these reasons.
(b) Failure to consider whether the applicant, either individually or as a member of his family or both, would be denied state protection because of his ethnicity.[In his Outline of Submissions and at the hearing Mr Karp did not make argument or submissions on Ground (1)(b), which was therefore implicitly abandoned: see TP39.15-45.]
2. The IAA acted in a manner that was legally unreasonable in not disclosing to the applicant that it was considering rejecting claims that had been accepted by the delegate, and inviting submissions and new information thereon, pursuant to s. 473DC(3) of the Migration Act.
3. The IAA acted in breach of the requirements of procedural fairness, insofar as it applied to the IAA’s process, in not disclosing to the applicant that it was considering rejecting claims that had been accepted by the delegate, and inviting submissions and new information thereon, pursuant to s. 473DC(3) of the Migration Act.
Consideration
Ground 1(a)
In his oral submissions at the hearing Mr Karp submitted in support of this Ground that the IAA was under a duty to consider the whole of the case, including the surrounding circumstances, and connect the claims and circumstances together to come to the best or preferable decision and that therefore it had to give a reason and explain why the home raid incident had occurred, but that it had failed to do so.
The fact of the matter is that the Applicant’s claim that he was the target of the home raid incident and that it had occurred because of his political disagreement with the authorities appears to have been based on his own assumption and surmise.
At [26] of his Statement the Applicant had said in relation to the home raid incident:
[26]We were shocked and terrified when we noticed that one of them pulled a gun on us and fired several shots. I had no choice but to escape the scene as I could guess that the authorities would be after me.
At [15] of the Decision Record of the IAA it records that “he believed” that a plain-clothed officer who took part in the home raid incident was an intelligence officer. At [16] the IAA records that the Applicant claimed that “… he assumed the officers were after him in the home raid because of the recent telephone questioning and because he was the only person in his family who had disagreed with the government or showed their political opinion”.
However, for reasons of which complaint is not made the IAA did not accept that the Applicant had been the target of the home raid incident or otherwise of interest to the authorities in Iran at that time: see [17], [23] and [31] of its Decision Record. That finding by the IAA was sufficient to deal with the Applicant’s claims in this connection.
In my view there was no duty on the IAA to go further and attempt to make a finding as to the reason(s) behind the home raid incident when the claim as made by the Applicant in that regard had been rejected. The IAA was not bound to muse, surmise or conjecture as to the reason(s) for the home raid incident once it had found that it was not satisfied that the home raid incident was causally connected to the Applicant for his claimed political activities and attitude. The only basis given to the IAA for the home raid incident was its connection with the Applicant as target. That claim was considered and rejected and the IAA had no further obligation to find some alternative reason for the home raid incident.
The Applicant never made a substantial clearly articulated argument relying on established facts nor was there an unarticulated claim clearly or squarely arising on the material before the IAA (see DAX18 v Minister for Home Affairs [2019] FCA 653 at [16] per Jagot J) in terms of the particulars asserted in Ground (1)(a)(i), (ii) and (iii). The Applicant assumed that the home raid incident occurred because of the 2012 telephone call allegedly asking him about his political views and his practice of Islam and pilgrimages, and not as arising out of his Arabic ethnicity. In any event, the IAA had made a finding of greater generality that Arabs did not face a real chance of significant harm in Iran: see [19] above.
Ground (1)(a) fails to establish that the decision of the IAA is affected by jurisdictional error.
Ground 2
At the hearing Mr Karp submitted that every time the IAA was considering that it might come to a different view to that of the Delegate, or might reject claims that had been accepted by the Delegate, notice of its intention in this regard had to be given to an applicant, and that it would be legally unreasonable if the IAA failed to give such notice to an applicant pursuant to s.473DC(3) of the Act.
However, this submission must fail because of the decision of the Full Court of the Federal Court of Australia comprised of Reeves, Robertson and Rangiah JJ in DGZ16 v Minister for Immigration & Border Protection [2018] FCAFC 12 (DGZ16), in which Mr Karp appeared and which was argued prior to the hearing in this case, but in which judgment had not been delivered at the time of the hearing of this case.
At the hearing Mr Karp advised Mr Reilly and myself that judgment was pending in DGZ16, and subsequently Mr Karp very properly drew my attention to [72] – [78] of DGZ16 as being relevant to his argument, to which they are contrary. It is sufficient to refer to the following paragraphs of DGZ16, namely:
[72] In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.
…
[74] We do not accept the submission put on behalf of the appellant that the fact that the Authority in the present case accepted as being before it the submissions made by the appellant, and accepted the new information involved in those submissions, implies that the Authority was required, as a matter of legal reasonableness or otherwise, to seek further submissions from the appellant once it formed specific reservations about the appellant’s case, and to provide the appellant with an opportunity to respond.
[75] There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.
[76] It was open to the Authority to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond.
…
[78] It follows from what we have said that, leaving aside for the moment Ground 5, the appeal fails… Ground 3, concerning legal unreasonableness, fails as under the statutory scheme in the circumstances of this case the Authority was not obliged to inform the appellant of the issues that it considered to arise on the review, insofar as those issues were not found to be dispositive by the delegate.
(emphasis added)
The principles of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, which apply to the Administrative Appeals Tribunal under Part 5 and Part 7 of the Act, do not apply to the IAA and Ground 2 fails to establish jurisdictional error.
Ground 3
Ground 3 relies on the same factual context as Ground 2, namely that the IAA did not give prior notice to the Applicant that it might not find that the 2012 telephone call had occurred or that his father had been arrested, detained and questioned about his whereabouts some months after the home raid incident: see [25] above.
However, Ground 3 differs from Ground 2 in contending that procedural fairness, rather than legal reasonableness, required the prior disclosure to the Applicant of its possible findings in relation to these matters.
At the hearing Mr Karp conceded that the decision of Barker J in DBE16 v Minister for Immigration & Border Protection [2017] FCA 942 (DBE16) at [58] – [65] precluded a finding that natural justice required disclosure in the context of Part 7AA of the Act and made a formal submission that DBE16 had been wrongly decided. However, in my view the decision of Barker J in DBE16 is correct and it has been followed in subsequent cases. It is sufficient for present purposes to cite the decision of CRJ17 v Minister for Immigration & Border Protection [2018] FCA 1404 at [49] – [50] per Banks-Smith J:
[49] Section 473DA provides that Division 3 of Pt 7AA, with s 473GA and s 473GB ‘is taken to be an exhaustive statement of the requirements of the natural justice hearing rule’. A consequence of this is that, by contrast with reviews under Pt 7 and Pt 5 of the Act, there is no procedural fairness obligation to put dispositive matters to an applicant or to alert an applicant that a matter might be decided on a different basis from how the matter was determined by the delegate. The principles in SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 do not apply to reviews under Pt 7AA of the Act: DBE16 v Minister for Immigration & Border Protection [2017] FCA 942 at [59] (Barker J). The Full Court in DGZ16 v Minister for Immigration & Border Protection [2018] FCAFC 12(Reeves, Robertson and Rangiah JJ) said at [75]:
There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.
[50]In this case, the appellant made no assertion before the primary judge of a breach of procedural fairness and identified no obligation in Division 3 of Pt 7AA of the Act that the Authority had breached. Regardless, the Authority was not required to afford the appellant an opportunity to provide new information or put submissions to it or to otherwise send a letter inviting the appellant to do so: COA16 v Minister for Immigration & Border Protection [2018] FCA 475 at [37]–[38] (Rares J).
In my view Ground 3 fails to establish that the decision of the IAA is affected by jurisdictional error.
Conclusion
The Applicant has failed to establish jurisdictional error, and the Amended Application filed in this Court is to be dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 17 July 2019
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