BYR17 v Minister for Immigration

[2017] FCCA 3114

FEDERAL CIRCUIT COURT OF AUSTRALIA

BYR17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3114

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – time extended under s 477 of the Migration Act 1958 (Cth) – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5H, 36, 65, 473CB, 473DD, 476, 477

Migration Regulations 1994, ref. 1.12(3)-(4), 1.05A

Cases cited:
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1

Applicant: BYR17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1384 of 2017

Judgment of: Judge Street

Hearing date: 12 December 2017

Date of Last Submission: 12 December 2017

Delivered at: Sydney

Delivered on: 12 December 2017

REPRESENTATION

Counsel for the Applicant: Mr M Guo

Solicitors for the Applicant: Estrin Saul Lawyers

Counsel for the Respondents: Mr H P T Bevan

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The Court extends time under s 477 of the Migration Act 1958 (Cth) up to and including 5 May 2017.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,100.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1384 of 2017

BYR17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration AssessmentAuthority (“the Authority”) made on 17 March 2017, affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Iran and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 9 August 2013. The applicant arrived at the same time as his younger brother and at that stage, the applicant was 23 years of age, and the applicant’s younger brother was 21 years of age.

Claims for protection

1. The applicant claimed to fear harm because of his religion as a Christian, his imputed political opinion as an apostate, membership of a particular social group of young Iranian males with Western values, and failed asylum seekers. The applicant feared if it became known he had changed his religion and been attending church, he would be found to be an apostate, and could face the death sentence. The applicant was concerned that his personal information had been publicly disclosed by the Department, and that the Iranian authorities would know he left Iran to seek asylum in Australia, and would want to punish him for putting the government and religious authorities to shame. The applicant feared that once the authorities knew of his conversion, his tattoo will be like a label and he will face serious consequences. The applicant feared the authorities would not protect him because he changed his religion and that he would not be safe anywhere in Iran as he renounced Islam and practises Christianity.

Time extended under section 477 of the Migration Act 1958 (Cth)

1. These proceedings were commenced on 5 May 2017. An amended application was filed on 1 December 2017, raising the following ground:
   
   1. The IAA failed to consider the claims that the Applicant was eligible for a protection visa by reason of s 36(2)(b) and/or (c) of the Migration Act 1958.

2. Having had the benefit of hearing argument in relation to the application under s 477 of the Act in respect of the two weeks’ delay and the merits of the application, this Court made an order extending time under s 477 of the Act. By the consent of the parties, the hearing then proceeded as a final hearing, taking into account the material that had earlier been adduced on the section 477 application.

The delegate’s decision

1. On 27 October 2016, the delegate refused to grant the applicant a protection visa, finding the applicant failed to meet the criteria under the Act. The delegate’s reasons relevantly identified that the applicant did not satisfy the criteria under s 36(2)(a) and s 36(2)(aa) of the Act. The delegate found that the applicant is not a member of the same family unit as a non-citizen who engages protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act, and who holds a Protection visa of the same class as that applied for by the applicant under s 36(2)(b) and s 36(2)(c) of the Act.

Application for a Safe Haven Enterprise visa

1. The application for the Safe Haven Enterprise visa included question 3 headed “Details of Persons Included in this Application”, under which there appears:

   Give details of ALL persons included in this application (those seeking Australia’s protection and those who are “members of the same family unit”. The members of the same family unit include partner (spouse or de facto), dependent children and other dependents.

   There is also a reference to the fact that:

   These persons must be in Australia at the time of the application.

   The only name that is set out is the applicant’s name and the applicant’s date of birth.

2. The application includes question 5 which asks in relation to members of the same family unit not included in this application:

   Are there any members of the same family unit who are in Australia but are not included in this application?

   The answer no, was ticked.

3. Provided in support of the application for protection was a statement by the applicant which relevantly identified that the applicant travelled through Australia with his younger brother, that the applicant and his younger brother were subjected to corporal discipline by their father, and identified that the younger brother encountered similar alleged difficulties to those encountered by the applicant. The statement outlined that the applicant talked with his younger brother about Christianity and being punished by their father for rejecting Islam.

4. In support of the application, a Torture and Trauma/Psychologists Report, dated 10 March 2015 was provided. That report relevantly referred to Separation Anxiety Disorder in relation to the applicant, and there was a finding in that regard which referred to the applicant meeting the diagnostic criteria for separation anxiety due to being away from his brother and his overwhelming sense of responsibility for him. The report also referred to the incidents that occurred to the brothers, and that the applicant currently has two brothers in the community.

5. The submissions provided to the delegate also identified the applicant having a younger brother living in the community on a bridging visa, and his older brother living in Orange as an Australian permanent resident, having been accepted as a refugee. Reference was also made to the unauthorised maritime arrival in the induction interview, in which the applicant indicated that he travelled with a family member on the boat, and there was reference in the material before the delegate to the applicant intending to live with his brother.

The Authority’s decision

1. Following the decision of the delegate on 17 March 2016, the Authority wrote to the applicant on 8 November 2016, explaining the limited circumstances in which the Authority could receive new information and provided an attached fact sheet and practice direction, giving the applicant an opportunity to put on new information and submissions. That material expressly referred to an opportunity to raise any new claim.

Information before the Authority

1. The Authority’s reasons identify the background to the visa application, and identified, having regard to the material referred under s 473CB of the Act. The Authority referred to material provided in response to the letter dated 13 February 2017, and was satisfied that there were exceptional circumstances under s 473DD of the Act to receive the new information identified in the Authority’s reasons. It is apparent from a fair reading of the Authority’s reasons, that the Authority did not adopt any erroneously narrow meaning of exceptional circumstances and did not fail to have regard to the whole of the provisions of s 473DD of the Act.

2. The Authority proceeded to identify a letter sent to the applicant on 1 March 2017, inviting the applicant to provide new information and evidence regarding his religious beliefs, and referred to a submission received on 15 March 2017. The Authority identified a new claim in that regard about his conversion to Christianity in 2012 and the Authority was not satisfied there were exceptional circumstances to justify considering that information. The Authority identified that the remainder of the information provided, which was new information and included met the requirements of s 473DD of the Act and was considered by the Authority.

Assessment of Refugee Convention Criteria

1. The Authority summarised the applicant’s claims and evidence. The Authority was not satisfied the applicant’s conversion to Christianity was genuine. The Authority was not satisfied the applicant would identify as a Christian or practice Christianity on return to Iran, and found this would be because of a lack of belief in or commitment to the religion, rather than because of a fear of persecution.

2. The Authority found the applicant has no public profile in either Iran or Australia, and there was nothing in the material to suggest that the activities of the applicant had come to the attention of the Iranian authorities. The Authority found there was not a real chance of the applicant being harmed for reasons of his claimed belief in or conversion to Christianity or religious activities in Australia.

3. The Authority referred to the applicant’s tattoo, and did not accept that the tattoo is an expression of the applicant’s religious beliefs, or would be interpreted as such. The Authority found the applicant may suffer some low-level harassment if his tattoo is sighted, but was not satisfied that there was a real chance of the applicant suffering harm beyond this, and found that such harassment did not amount to serious harm. In relation to the applicant’s involvement in protests, the Authority was not satisfied that there was a real chance of the applicant facing harm in the reasonably foreseeable future by reason of the political views that he may hold.

4. The Authority was not satisfied there was a real chance of the applicant being seriously harmed by his father or forced to engage in religious practise in the reasonably foreseeable future. The Authority was willing to accept that although the applicant was born into a Muslim family, he does not believe in or practise Islam and will not engage in Islamic religious practice on return to Iran. The Authority was not satisfied there was a real chance of the applicant being identified as an apostate and harmed for that reason, or because of any imputed political opinion, or otherwise being harmed because of his lack of belief in the practice of Islam.

5. The Authority referred to the applicant’s fear in relation to being a young Iranian male with Western values and accepted that the applicant may experience some harassment, but found this did not amount to serious harm. The Authority was not satisfied there was a real chance of the applicant being seriously harmed because he is a young Iranian male with Western values. The Authority referred to the disclosure of the applicant’s details, although not the nature of his claims being disclosed on the Department’s website in February 2014. The Authority did not accept that that the applicant has any sort of profile with the Iranian authorities or that he would otherwise attract adverse attention on his return to Iran.

6. The Authority found the questioning that the applicant may face does not amount to serious harm. The Authority was not satisfied there was a real chance of the applicant being harmed by Iranian authorities on his return to Iran or subsequently in the reasonably foreseeable future because they are aware he sought asylum or because he is a failed asylum seeker, because of his lengthy stay in Australia or because of any imputed belief or opinion arising from those matters.

7. The Authority found that there was not a real chance of the applicant’s father seriously harming the applicant, and found the prospect of non-state actors becoming aware of the information released in the data breach and harming the applicant to be remote. The Authority referred to the alleged breach of the applicant’s rights to privacy and was not satisfied there was a real chance of this leading to serious harm in Iran in the reasonably foreseeable future. The Authority was not satisfied there was a real chance of the applicant otherwise suffering serious harm because of the release of his details.

8. The Authority took into account the totality of the applicant’s circumstances, and was not satisfied there was a real chance of the applicant suffering harm from the Iranian authorities or any other person. The Authority was not satisfied the applicant met the requirements and definition of refugee in s 5H(1) of the Act and found the applicant failed to meet the criteria under s 36(2)(a) of the Act.

Assessment of Complementary protection criteria

1. The Authority was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Iran from Australia, there is a real risk the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. Mr Guo of counsel for the applicant, took the Court to the relevant statutory provisions, which relevantly are as follows:

   Migration Act 1958 (Cth)

   Section 36(2)

   (2) A criterion for a protection visa is that the applicant for the visa is:

   (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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; or

   (b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i) is mentioned in paragraph (a); and

   (ii) holds a protection visa of the same class as that applied for by the applicant; or

   (c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i) is mentioned in paragraph (aa); and

   (ii) holds a protection visa of the same class as that applied for by the applicant.

   Section 65(1),

   (1) Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

   (a) if satisfied that:

   (i) the health criteria for it (if any) have been satisfied; and

   (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and

   (iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

   (iv) any amount of visa application charge payable in relation to the application has been paid;

   is to grant the visa; or

   (b) if not so satisfied, is to refuse to grant the visa.

   Section 5 – Interpretation

   “Member of the same family unit”: one person is a member of the same family unit as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.

   Migration Regulations 1994 (Cth)

   Reg 1.12(3) and (4)

   Subregulation (3)

   (3) Subregulation (4) has effect for the purposes of the main definition so far as it is relevant to a provision of the Act or these Regulations applying in relation to any of the following visas:

   (a) a Protection (Class XA) visa;

   (b) a Refugee and Humanitarian (Class XB) visa;

   (c) a Temporary Protection (Class XD) visa;

   (d) a Safe Haven Enterprise (Class XE) visa;

   (e) a Resolution of Status (Class CD) visa;

   (f) a Temporary Safe Haven (Class UJ) visa;

   (g) a Temporary (Humanitarian Concern) (Class UO) visa;

   (h) a Territorial Asylum (Residence) (Class BE) visa.

   Subregulation (4)

   (4) A person is a member of the family unit of another person (the family head ) if the person is:

   (a) a spouse or de facto partner of the family head; or

   (b) a dependent child of:

   (i) the family head; or

   (ii) a spouse or de facto partner of the family head; or

   (c) a dependent child of a dependent child of:

   (i) the family head; or

   (ii) a spouse or de facto partner of the family head; or

   (d) a relative, of the family head or of a spouse or de facto partner of the family head, who:

   (i) does not have a spouse or de facto partner; and

   (ii) is usually resident in the family head's household; and

   (iii) is dependent on the family head.

   Reg 1.05A

   (1) Subject to subregulation (2), a person (the first person ) is dependent on another person if:

   a) at the time when it is necessary to establish whether the first person is dependent on the other person:

   (i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person's basic needs for food, clothing and shelter; and

   (ii) the first person's reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person's basic needs for food, clothing and shelter; or

   (b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person's bodily or mental functions.

   (2) A person (the first person ) is dependent on another person for the purposes of an application for:

   (d) a protection visa; or

   (ea) a Refugee and Humanitarian (Class XB) visa; or

   (i) a Temporary Safe Haven (Class UJ) visa;

   if the first person is wholly or substantially reliant on the other person for financial, psychological or physical support.

Consideration

1. Mr Guo of counsel submitted that the applicant in the present case met the requirements of the existence of a claim under s 36(2)(b) and s 36(2)(c) of the Act because of the material before the Authority in relation to arriving in Australia with his younger brother, a reference to his younger brother being on a bridging visa, the reference to the proposal to live together, the reference to anxiety from separation from his younger brother, the joint experiences that they had encountered at the hands relevantly, of their father and that, accordingly, the Authority had failed to complete its statutory task in the conduct of the review by addressing a claim that the applicant contended arose on the material before the Authority.

2. Mr Guo of counsel identified the delegate’s reference to s 36(2)(b) and s 36(2)(c) of the Act on the delegate’s reasoning. In the absence of any additional reasoning in that regard, Mr Guo submitted that the applicant in the present case fell within the definition in reg 1.12(3)(d) of the Migration Regulations 1994 (Cth) (“the Regulations”) of a family unit of another person. Mr Guo identified in that regard that the provision was capable of having application between siblings and that the reference to a family head, which was not defined met the requirements of paragraph 1.12(4)(d)(i), (ii) and (iii) of the definition.

1. Mr Guo of counsel submitted that the issue of whether the applicant was, in fact, a member of the family unit of his younger brother was an issue of fact for the Authority to determine, and not a matter for this Court to determine. There is no substantial dispute between the parties that the principles to be applied in determining whether or not there was a claim that fairly arose on the material before the Authority has been properly identified.

2. In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1 relevantly, at [60]-[62], the matters referred to by Mr Guo of counsel do not identify a claim that the applicant was a member of a family unit of the younger brother. No such claim fairly arises on the material before the Authority. There was no substratum of facts that raised such a claim. Notwithstanding the skilful argument advanced by Mr Guo, no jurisdictional error is made out in ground 1 of the application. Accordingly, the Court proposes to dismiss the application.

Ministerial Intervention

1. The Court notes that this is a case where the applicant’s elder brother is apparently in the community, having successfully obtained protection, and that his younger brother as an agreed fact, obtained a safe haven enterprise visa as a result of a successful application before a statutory body, and was granted that visa on 5 May 2017, after a successful decision published after the decision in the present case. Those are highly unusual circumstances.

2. On rare occasions, this Court does make an observation that a matter is appropriate for consideration of Ministerial intervention. Whilst I accept that s 417 of the Act has no application to Part 7AA.  Nonetheless, the nature of any Ministerial intervention is a matter for the Minister. Suffice to say this is a case where the Court considers it may well be appropriate for such consideration to be given.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  6 February 2018