Bye19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2019] FCCA 3431

FEDERAL CIRCUIT COURT OF AUSTRALIA

BYE19 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR [2019] FCCA 3431

Catchwords:
MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether Immigration Assessment Authority erred in making findings that were legally unreasonable – whether Immigration Assessment Authority was obliged to invite the applicant to give evidence in person – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 473DC, 474,

Cases cited:

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018]

HCA 16

BVD17 v Minister for Immigration and Border Protection [2019] HCA 34

BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365

CVS16 v Minister for Immigration and Border Protection [2018] FCA 951

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

FCAFC 10

VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006]

FCAFC 29

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Associated Provincial Picture House Limited v Wednesbury Corporation [1949]

1 KB 223

Applicant: BYE19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number:   SYG 1165 of 2019

Judgment of: Judge Emmett

Hearing date: 22 November 2019

Date of Last Submission: 22 November 2019

Delivered at: Sydney

Delivered on: 22 November 2019

REPRESENTATION

Applicant: Appeared in person with the assistance of an interpreter

Counsel for the Respondents: Mr Thomas Liu

Solicitors for the Respondents: Clayton Utz

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1165 of 2019

BYE19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By application filed on 13 May 2019, the applicant seeks judicial review of a decision of the Immigration Assessment Authority dated 11 April 2019 (“the Authority”). 

2. The background of this matter and the Authority’s decision are accurately summarised in the first respondent’s written submissions as follows:

   “Background

   4. The applicant is a citizen of Iran. He arrived in Australia on 15 July 2013: Authority's decision and reasons (Decision) at [1] (CB 121). On 28 September 2017 the applicant lodged his application for the SHEV. On 14 March 2019, the Delegate refused to grant him the SHEV (CB 102-112). The Delegate found that the applicant did not satisfy the refugee criteria or the complementary protection criteria: CB 111-112. On 19 March 2019, the Delegate's decision was referred to the Authority for a review: CB 117.

   5. On 11 April 2019, the Authority affirmed the Delegate's decision (CB 120-129). The Authority set out the applicant's claims for protection at [4]-[5] of its reasons. Those claims included fear of returning to Iran because of discrimination against Faili Kurds, imputed political opinion, being a failed asylum seeker, conversion to Christianity, being exposed to Western culture, and lack of freedom in Iran.

   6. The Authority rejected the substance of each of these claims. In summary, the Authority:

   (a) accepted that the applicant is a Faili Kurd but referred to country information indicating that “DFAT assesses that Faili Kurds in Iran who are Iranian citizens can access services on the same basis as other Iranian citizens and appear to face little to no discrimination”: Decision at [13]. On that basis the Authority concluded, at [17], that it was “not satisfied that the applicant would face discrimination amounting to serious harm in the reasonably foreseeable future on the basis of his Faili Kurdish ethnicity”;

   (b) accepted that the applicant was arrested and jailed in 2009: Decision at [20]. However, the Authority found by reference to country information that because the applicant did not have “a profile as a political activist or dissident” he was not “at risk of harm now or in the reasonably foreseeable future as a result of his previous detention during the 2009 protests or his political opinion”: Decision at [21];

   (c) rejected the applicant's claim to have converted to Christianity. The Authority found the applicant's evidence “about this claim was scant and extremely vague” (Decision at [22]) and noted that in an interview he gave upon arrival in immigration detention that “he stated he was a practicing Muslim”: Decision at [24]. The relevant part of the record of interview in which the applicant indicated his religion appears at CB 89;

   (d) considered whether the applicant faced a risk of persecution or serious harm if returned as a failed asylum seeker. The Authority concluded, at [30], that the applicant had no “profile with the Authorities as an activist or dissident” and that the evidence indicated there was not a real chance he “would be subjected to harm as part of the process of returning to Iran as a failed asylum seeker.”

   7. On the basis of these findings, the Authority also concluded (at [31]) that the applicant does not “face a real chance of harm on return to Iran for any of the reasons claimed.” Based on the same findings, the Authority also concluded that there was not a real risk the applicant would suffer significant harm if returned to Iran. Therefore, the Authority concluded that the applicant did not satisfy the complementary protection criteria under s 36(2)(aa) of the Act: Decision at [37].”

3. The applicant was unrepresented before this Court although had the assistance of an interpreter.

4. The applicant confirmed that he had attended a directions hearing before a registrar of this Court on 30 May 2019. On that occasion, the applicant was given leave to file and serve an amended application, any further evidence and submissions in support of his application. The applicant was also provided with the contact details of legal services providers and translating and interpreting services in documents headed in Farsi. 

5. The applicant confirmed that he has not filed any documents either in accordance with those directions or otherwise and has no further documents to provide to the Court this morning.

6. At first, the applicant said that he continued to rely on the grounds of his application, as follows:

   “1. The decision is unreasonable because the applicant was never asked to provide evidence in person.

   2. The applicant wishes to give evidence I person because he can not write or speak English.”

7. However, the applicant did not seek to say anything in support of those grounds. Rather, the applicant made three further claims. Those claims were:

8. (i)  First, it was claimed that he had a child that passed away, and yet he had not had a child. 

9. (ii) Second, it was claimed that the applicant had travelled to Turkey for two months in 2017, but since he has been in Australia he has not travelled to Turkey.

10. (iii) Third, that a different person claimed his profile and he is not that person.

11. The applicant said that he had told the truth to the Authority.

12. In relation to those three new assertions by the applicant, there is no evidence at all before this Court of any of those matters. Counsel for the first respondent tendered the Court Book, filed on 13 June 2019, marked as Exhibit 1R. There is no mention in the applicant’s claims, the Delegate’s decision, the Authority’s decision or Exhibit 1R of any of those three matters.

13. The Authority’s decision record makes clear that it considered whether the applicant was a person to whom Australia has protection obligations, based on its finding that Iran is the relevant receiving country. The Authority noted, as did the Delegate, that there was no documentary evidence in support of the applicant’s identity provided by the applicant with his visa application. The Authority noted that the applicant consistently claimed to be an Iranian citizen and, for the purposes of the Authority’s decision, it was prepared to accept that as the case.

14. The Authority set out the relevant law in relation to its considerations and considered in detail whether the applicant was at risk of any harm by reason of his Faili Kurd ethnicity, or because he was arrested and jailed in 2009, a claim that the Authority was prepared to accept.

15. The Authority noted that the applicant did not claim to be a participant, organiser or activist, nor that he was convicted or fined. Accordingly, the Authority did not accept that the applicant was jailed for three months simply because he was there, as claimed in his entry interview. The Authority referred to country information, which it identified with particularity, indicating that many persons were swept up in the crackdown on protestors at the end of the Ahmadinejad presidency in 2013. The Authority noted that the Department of Foreign Affairs and Trade assessed that it would be highly unlikely that those arrested at that time, for simply participating in the protests, would face continuing surveillance or harassment, including being prevented from accessing employment.

16. The Authority found that the applicant was not a protestor, but was simply arrested for being on the street at the time. The Authority noted that the applicant did not claim that any time after his detention in 2009, he was the subject of any interest from the authorities for any reason, including his political opinion. The Authority found that many years have passed since those events in 2009 and that the country information did not support the conclusion that people who were detained at that time for simply being there while the protests were going on are at risk of experiencing repercussions from the authorities.

17. The Authority accepted that the applicant genuinely holds the view that there is no freedom in Iran and this view is consistent with the regime’s reaction in 2009 and later in 2017 to protests. However, country information disclosed that robust criticism of the State is tolerated provided certain well-understood red lines are not crossed, which can result in political activists engaging in propaganda against the State, for example, being charged and sentenced to lengthy prison terms. 

18. The Authority noted that the applicant did not claim to have openly criticised the Iranian State and that there was no credible information before it that the applicant has a profile as a political activist or dissident, or that he has publicly expressed views critical of the State, or that he has refrained from expressing political opinion out of fear of the consequences.

19. Nor has the applicant participated in any political activities or publicly expressed his views in Australia. Nor did the applicant claim to have any intention to openly engage in political expression in the future. The Authority found that the evidence before it did not support a conclusion that the applicant’s views about the Iranian State are other than his privately held opinions.

1. Essentially, the Authority was not satisfied that the applicant’s fear was a well-founded fear as a result of his previous detention during the 2009 protests or his political opinion.

2. The Authority went on then to consider if the applicant was at risk by reason of his claimed conversion to Christianity. The Authority had regard to the applicant’s claims in relation to the alleged conversion to Christianity, but found his evidence about that claim to be vague. As a result, the Authority was not satisfied that the applicant has converted to Christianity, and, therefore, was not satisfied that he has a well-founded fear of persecution in Iran on that basis. 

3. The Authority then considered whether the applicant was at risk on return to Iran as a failed asylum seeker. The Authority found that the authorities in Iran have little interest in prosecuting failed asylum seekers for activities conducted outside Iran in relation to protection claims. The Authority noted that the applicant did not claim that he committed any crime in Iran, noting that it had accepted that he was previously arrested and jailed in 2009.

4. Ultimately, the Authority considered that there was no more than a remote chance that the applicant would come to the attention of the authorities in Iran on return and was not satisfied that there was a real chance that the applicant would be subjected to harm as a result of the process of returning to Iran as a failed asylum seeker.

5. The Authority then concluded as follows: 

   “31. Assessing all of his claims together I am not satisfied that, taking into consideration the country information before me as well as his personal circumstances, the applicant faces a real chance of harm on return to Iran for any of the reasons claimed.”

6. The Authority then considered whether the applicant met the complementary protection criterion in s.36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”) and, for essentially the same reasons, concluded that there is not a real risk of significant harm to the applicant now or in the reasonably foreseeable future if he was to return to Iran and, therefore, the applicant did not meet the criterion in s.36(2)(aa) of the Act.

7. As stated above, none of the reasons of the Authority refer to any of the new claims made by the applicant to this Court this morning. For that reason, the applicant’s assertions this morning do not demonstrate any jurisdictional error on the part of the Tribunal.

8. In relation to the grounds of the applicant’s initiating application for judicial review filed on 13 May 2019, Ground 1 asserts that the Authority’s decision in unreasonable because the applicant was never asked to give evidence in person. Ground 2 asserts that the applicant wished to given evidence in person because he could not write and speak English. However, there is no evidence before this Court that the applicant ever expressed a wish to give evidence in person before the Authority, nor did the applicant seek to place any new information before the Authority.

9. It is well established that the purpose of Division 3 of Part 7AA of the Act is to provide a fast-track reviewable decision without accepting or requesting new information and without interviewing the applicant. In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, per Gageler, Keane and Nettle JJ at [22] stated as follows:

   “22.Within Div 3, s 473DB sets out the primary requirement that, subject to the Part, the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant. To that primary rule, subdiv C of Div 3 admits of exceptions. The principal provisions of subdiv C providing for those exceptions are contained in ss 473DC, 473DD and 473DE. Close attention needs to be paid to each of those provisions and to their interrelationship.”

10. In the circumstances of this case, there is nothing before the Court to suggest that the Authority was under any compunction to consider whether it should exercise its discretion under s.473DC of the Act. In giving reasons for an ultimate decision to affirm or remit, the Authority is not required to give reasons for the non-exercise of a procedural power such as that conferred on it by s.473DC(1) of the Act (see BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 at [16] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [50] per Thawley J; CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 at [26]–[29] per Bromwich J.)

11. Further, the mere failure of the Authority to mention a discretion conferred by statute does not support the drawing of an inference that the exercise of the discretion was not considered (see BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ at [39] and [40]).

12. The discretionary opportunities for the Authority to obtain new information or get any documents are discretions that must be exercised reasonably (see Plaintiff M174/2016). Whether the Authority acted reasonably in the circumstances is fact dependant and requires that consideration be given to the relevant facts and evidence before the Court (see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [42] per Allsop CJ, Robertson and Mortimer JJ). As is clear from these reasons above, the Authority explored the applicant’s claims with him in significant detail and summarised various exchanges that it had with the applicant about his claims. In the circumstances of this case, the Authority’s findings were open to it on the evidence and material before it, including its adverse credibility findings. The Authority’s credibility findings were based on rational grounds and arrived at after considering those factors that were logically probative of the issue of credibility. The Authority’s findings were not tainted by any failure to afford procedural fairness or unreasonableness and were not without an intelligible justification (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).

13. The Authority also identified with particularity the country information to which it had regard.  It is well established that the country information to which a decision-maker such as the Authority has regard and the way he gives that information is a matter for the Authority (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

14. Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”) at [28] per French CJ), or where a decision has been made which lacks an “evident and intelligible justification” (see Li at [76]; Associated Provincial Picture House Limited v Wednesbury Corporation [1949] 1 KB 223 at [234]). The test for unreasonableness is “stringent” and only arises in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters or the evaluative judgments made by the decision maker (see Li at [30], [113]).

15. In the circumstances, the failure of the Authority to invite the applicant to provide evidence in person does not demonstrate any jurisdictional error.

16. The applicant has not identified any error of legal unreasonableness, reaching a finding without a logical, rational probative basis, failure to perform the required statutory task of review, or failure to take into account material critical to the formation of the Authority’s requisite stated satisfaction. Nor is such error apparent on the face of the Authority’s decision.

17. The reasons that the Authority gave for its findings were comprehensive and detailed and referred to the material before it extensively.

18. In conclusion, a fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the applicant, had regard to all relevant material provided in support and identified with particularity the country information to which it had regard. The Authority then made findings based on the evidence and material before it, which were open to it, for the reasons it gave. A fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.

1. In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review. The Authority’s decision is not affected by jurisdictional error, and is, therefore, a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

2. The proceeding before this Court should be dismissed with costs. 

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Deputy Associate: 

Date: 28 November 2019