BZL17 v Minister for Immigration

[2019] FCCA 98

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZL17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 98

Catchwords:
MIGRATION – Visa – protection visa – whether Immigration Assessment Authority failed to take into account a claim or part of a claim – whether procedural unfairness – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5AA, 5H, 5H(1), 5J, 36(2)(a), 36(2A), 473DA(1), 473GA and 473GB

Cases cited:

Pilbara Infrastructure Pty Ltd & Anor v Australian Competition Tribunal and Ors (2011) 193 FCR 57

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Applicant: BZL17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 167 of 2017

Judgment of: Judge Heffernan

Hearing date: 3 December 2018

Date of Last Submission: 3 December 2018

Delivered at: Adelaide

Delivered on: 18 January 2019

REPRESENTATION

The Applicant: In person with an interpreter

Counsel for the Respondents: Ms C Stokes

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicant do pay the first respondent’s costs fixed in the amount of FIVE THOUSAND DOLLARS ($5,000).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 167 of 2017

BZL17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Immigration Assessment Authority (‘IAA’) dated 28 April 2017.

2. There is one ground of review:

   “The applicant was denied procedural fairness by the Immigration Assessment Authority to address part of the applicant’s claim and this failure to take into account for a relevant consideration.”

   (re-produced verbatim)

3. On 9 June 2017, the Registrar gave leave to the applicant to file and serve an amended application and any further materials that he sought to rely on by 4 August 2017.  He was also ordered to file and serve an outline of submissions 10 days prior to the hearing.  No amended application or further materials have been filed and no outline of submissions was provided prior to the hearing.

4. The applicant is self-represented and appeared before me with the assistance of an interpreter in the Farsi and English languages.  When the matter was first called on at about 10.15am, the applicant claimed that whilst he had received the first respondent’s outline of submissions, he had not been provided with a copy of the Court Book.  The first respondent indicated that the Court Book had been sent to the applicant at his residential address in July of last year and that it had not been returned as an undelivered item.

5. Arrangements were made by me for the applicant to be given a copy of the Court Book and, with the assistance of the interpreter, the contents were translated to him.  The applicant indicated that he was happy to proceed in that manner.  The matter resumed before me at 2.15pm with the assistance of the interpreter.  The applicant indicated to the Court that the Court Book had been translated for him sufficiently. 

Background and decision of the IAA

1. The background to this matter and the IAA decision have been helpfully summarised by the first respondent in its outline of submissions.  The contents of that summary do not appear to be disputed by the applicant and I paraphrase it below.

2. The applicant is an Iranian and a Shi’a Muslim. He comes from Tehran. He performed compulsory military service and served with the Sepah during that time. He arrived in Australia on 15 March 2013 by boat and is ‘unauthorised maritime arrival’ within the meaning of s.5AA of the Migration Act 1958 (Cth) (‘the Act’). His application for a Temporary Protection (subclass 785) visa (‘the visa’) was made on 16 May 2016. He is a ‘fast-track applicant’.

3. The basis for his claims for protection were asserted to be as follows:

   i)Whilst he was doing his compulsory military service, he was targeted on the basis of his religious belief because he preferred to pray alone as opposed to taking prayers with a group and also for telling people that he did not follow a Mullah;

   ii)He had been discharged from military service after a fortnight because he suffered from anxiety and depression and he had become aggressive when assessed by the doctor.  The doctor then gave him what he described as a “lethal injection” to which he had a severe adverse reaction and he was lucky to survive;

   iii)Undercover officers had raided his university and forced it to close due to it having a co-educational policy;

   iv)He was not able to obtain employment due to the circumstances of his military discharge and he wanted to advance and continue his education which he was not able to do in Iran; and

   v)He had participated in the Green Movement in Iran and certain demonstrations in 2009, at one of which he injured his foot.

4. His application for the visa was refused by a delegate of the Minister on 15 December 2016.  The matter was automatically referred to the IAA which affirmed the decision of the delegate on 28 April 2017.  These proceedings were filed within time on 8 May 2017.

5. The IAA had regard to the material referred to it under s.473B of the Act. It made the decision to consider new information containing the most up-to-date relevant country information and it was satisfied that there were exceptional circumstances that warranted it in doing so.[1]

   [1]     Court Book (‘CB’) p 147 at para [4].

6. The IAA identified and summarised the applicant’s claim for protection.[2]

   [2] CB p 147 at para [5].

7. It identified and summarised the statutory criteria in ss.5H and 5J of the Act for a person to be regarded as a refugee and it did so in a manner that was unexceptionable.[3]

   [3]     CB p 148 at para [6] - [7].

8. The IAA gave an apparently thorough consideration of the materials and made a number of findings which accepted aspects of the applicant’s claim.  For example, it accepted that he had refused to attend group prayer sessions and that as a result he was targeted by the clergy.  It reached the conclusion that any harassment that he had experienced was minor and it was not satisfied that there was a real chance of serious harm on the basis of his religion either now or in the reasonably foreseeable future.[4]  The IAA also accepted that he had suffered from anxiety and depression and that as a result he was required to see a doctor. 

   [4] CB pp 148 to 149 at paras [9] - [12].

9. It accepted that he was given some treatment for that episode however it did not accept that he had been given a “lethal injection” or that there was any intention on the part the authorities or the doctor to harm him.[5]  The IAA considered the applicant’s concerns about his inability to obtain employment because of the nature of his military discharge and found that there was no evidence to suggest that he would not be able to obtain employment because of that reason, or that he would not be able to continue with his education in Iran for that reason.[6]

   [5] CB p 149 at para [14].

   [6] CB p 150 at para [15] – [16]. 

10. The IAA also accepted that the applicant had taken part in some demonstrations organised by the Green Movement in 2009 and accepted that he had injured his foot when he was leaving one of those demonstrations.  It concluded that he had not provided any evidence that he had suffered any further harm as a result of his participation in the Green Movement.  It was not satisfied that the authorities had any interest in him because of his involvement with that movement or that he had a profile that might be of interest to them. 

11. For that reason, the IAA found that there was no real chance of harm now or in the reasonably foreseeable future on the basis of his political profile.  It was also satisfied that he would not engage in political activity in the future.[7]  The IAA also accepted that the applicant had attended a university where a significant incident had occurred including the assault of some people and damage to some equipment.  It was satisfied that the applicant did not personally suffer any harm or threats due to that incident and that he was not targeted by the raid.  For that reason it was not satisfied that that incident gave rise to a real chance of persecution.[8]

    [7] CB p 150 at para [19] – [20].

    [8] CB p 150 at para [21].

12. The conclusion reached by the IAA was that the applicant did not meet the requirements of the definition of a refugee under s.5H(1) and that he does not meet the criteria of s.36(2)(a). It considered in some detail the complementary protection assessment criteria and whether there was a real risk that the applicant would suffer significant harm.[9]  In essence, the IAA found that he did not meet the criteria for the complementary protection regime for the same reasons that it had concluded that he was not owed protection as a refugee.[10]

    [9]     CB p 151 at paras [25] – [28].

    [10]    CB p 151 at paras [26] - [27].

Submissions

Applicant’s submissions

1. The applicant made brief oral submissions before me. He said that one of the problems with the decision of the IAA stemmed from the fact that he had not explained himself properly in his first interview with the case officer from Immigration. He also said that the IAA had ignored the fact that one of the criteria under s.36(2A) was that a person would suffer significant harm if they will be arbitrarily deprived of their life.

2. With respect to his discharge from military service, he said that they gave him an exemption from military service and that his discharge certificate said that he was mad and that he could not do military service and that, as a result, no one would ever employ him.  With respect to the fact that he had been targeted by the clergy because of his refusal to pray in a group, he said that he was threatened by the clergy.  They had threatened to kill him and one of them had said to him words to the effect of, “I am not finished with you.”

3. Immediately after that incident occurred, he was given what he described as the “lethal injection”.  He told the Court that that had disabled him for a period of three months and that this episode was one of the reasons he was afraid to go back.  He submitted that the fact that he was discharged into the care of his family, rather than being kept in hospital by the military, was one indication of their attitude towards him.

4. The applicant was not able to identify, with any clarity, a basis upon which he said he had been denied procedural fairness. 

First respondent’s submissions

1. Counsel for the Minister submitted that the ground of review is neither properly articulated nor particularised and, for that reason alone, it would be open to the Court to dismiss it.  There is nothing on the papers or in the submissions of the applicant to support the conclusion that he was denied procedural fairness by the IAA.  The first respondent submitted that whilst the IAA had, on 30 January 2017, sent the applicant the required letter enclosing a copy of Practice Direction No. 1, the applicant did not take up the opportunity to provide a written submission to the IAA.  This was significant because the Practice Direction invited the applicant to address it on why he disagreed with the decision of the delegate and to inform it about whether he believed there to be any claim or matter that had been overlooked by the delegate.

2. The first respondent submitted that it was simply a case of the applicant choosing not to respond to the letter.  With respect to those matters that the applicant referred to in his oral submissions, Ms Stokes, for the Minister, submitted that a fair reading of the decision record of the IAA indicated that it had dealt comprehensively with all of those matters and made clear findings that were open to it. 

Reply

1. The applicant acknowledged that he had not responded to the invitation to provide a response and to make a submission to the IAA and that he was aware that he had that opportunity.  His submission was that he had no money to pay for a lawyer and he was not in a position to say anything because he did not know what he should do.  I note in that regard that there is no evidence that, at any stage, the applicant requested an extension of time in which to respond. 

2. With respect to his military service discharge card and the entry on it which he says would jeopardise future employment, the applicant told the Court that he still has that card and could get it translated if necessary.  He said that he was not aware that he needed to provide that information to the authorities, but then said that he may have actually submitted it and that it could be in their file.  He acknowledged that that document was not in the Court Book with the material submitted in support of his application.  He asserted that the Iranian Government eliminates anyone who opposes them and that, as a result, he was at a very high risk. 

Consideration

1. The IAA gave detailed and comprehensive consideration to the claims of the applicant and the most recent country information.  I am not able to discern that it ignored or misconstrued any aspect of the applicant’s claims.  With respect to his assertion that he will be unable to obtain work because of the circumstances of his discharge from the military, this was dealt with by the Authority which concluded that he had obtained employment after his discharge and it was not satisfied that he would not be able to secure employment in the future.[11] 

   [11] Decision Record at para [15].

2. Further, the IAA gave detailed consideration to the circumstances of the applicant’s refusal to pray in a group whilst in the military and the difficulties that that created for him with the clergy and made findings open to it.  It considered closely the evidence that he had experienced anxiety and depression and noted that very little detail had been provided by the applicant about that, except to the effect that he had reacted very adversely to the injection that he had been given.  It accepted that he was unwell, that he had side effects and, for that reason, he could not continue with his military service, but it did not accept that the medication given to him was lethal or that they intended any harm to him.[12] 

   [12] Decision Record at para [14].

3. I have considered the findings of the IAA in relation to the various claims, and I am satisfied that there is nothing illogical or unreasonable or irrational about the findings made by the IAA.  Those findings were open to it on the material to which it had regard.  The question of the threats made to him by the clergy were dealt with in paragraphs 10 to 12 of the Decision Record.

4. The applicant has not been able to identify any claims that the IAA failed to take into account. In reality, he complains about the outcome of the review process and the conclusions reached by the Tribunal. I am not satisfied, when ss.473DA(1), 473GA and 473GB are taken into account, that the applicant has identified that he was subjected to any procedural unfairness. The statutory framework in which the IAA operates provides a more limited form of review. I am satisfied that it fulfilled its obligation to undertake a review and that no jurisdictional error has been demonstrated.

5. The applicant is clearly dissatisfied with the outcome of the review process conducted by the IAA.  It is not the role of this Court and nor is it empowered, to conduct a merits review.[13]  The position of the applicant is similar to that of the applicant in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs[14] where the Court had this to say:

   “In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S 157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”[15]

   [13]    Pilbara Infrastructure Pty Ltd & Anor v Australian Competition Tribunal & Ors (2011) 193 FCR 57 at paras [16] - [17].

   [14] [2004] FCAFC 10 at para [10].

   [15] Ibid at para [10].

6. Accordingly, I make the orders to be found at the beginning of these reasons.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date:  18 January 2019