BZL17 v Minister for Immigration and Border Protection
[2019] FCA 704
•21 May 2019
FEDERAL COURT OF AUSTRALIA
BZL17 v Minister for Immigration and Border Protection [2019] FCA704
Appeal from:
BZL17 v Minister for Immigration & Anor [2019] FCCA 98
File number:
SAD 33 of 2019
Judge:
KERR J
Date of judgment:
21 May 2019
Catchwords:
MIGRATION – appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the Immigration Assessment Authority affirming a decision of a delegate of the First Respondent refusing a protection visa – whether primary judge failed to consider the ground of review raised at first instance – appeal dismissed
MIGRATION – leave to raise new grounds on appeal – where proposed grounds lack sufficient prospects of success – leave to rely on new grounds refused
Legislation:
Migration Act 1958 (Cth) ss 5H(1), 36(2), 473CB
Cases cited:
AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68; 241 FCR 30
BZL17 v Minister for Immigration & Anor [2019] FCCA 98
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; 147 FCR 51
Date of hearing:
7 May 2019
Registry:
South Australia
Division:
General Division
National Practice Area:
Administrative and Constitutional Law and Human Rights
Category:
Catchwords
Number of paragraphs:
41
Counsel for the Appellant:
The Appellant appeared in person with the assistance of an interpreter
Counsel for the First Respondent:
Ms B Griffin
Solicitor for the First Respondent:
Australian Government Solicitor
Counsel for the Second Respondent:
The Second Respondent filed a submitting appearance, save as to costs
ORDERS
SAD 33 of 2019
BETWEEN:
BZL17
Appellant
AND:
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
KERR J
DATE OF ORDER:
21 May 2019
THE COURT ORDERS THAT:
1. Leave to amend the grounds of appeal be refused.
2. The appeal be dismissed.
3. The Appellant pay the First Respondent’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
KERR J:
This is an appeal from a decision of a judge of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Immigration Assessment Authority (IAA): see BZL17 v Minister for Immigration & Anor [2019] FCCA 98. The IAA had affirmed a decision of a delegate of the Minister for Immigration and Border Protection (Minister) refusing to grant the Appellant a Temporary Protection (subclass 785) visa (visa).
The Appellant is an Iranian Shia Muslim. He arrived in Australia in March 2013 and lodged his visa application in March 2016. The protection claims advanced in support of his visa application were, in summary:
• During compulsory military service in 2011 the Appellant was persecuted for praying alone rather than with other soldiers, and not attending compulsory religious classes because he did not follow the teachings of the Khomeini. The Appellant was also questioned about why his beard was not longer.
• The Appellant was discharged two weeks in to his compulsory military service after he began to experience depression and anxiety and was given an injection that he was told would calm him down. He believes it could have been a lethal injection. He survived the injection but suffered adverse side effects.
• The Appellant felt that he was wasted in Iran and that he was unable to advance his education.
• The Appellant was unable to find employment because of his having been discharged from the military with mental health issues.
• The Appellant participated in demonstrations supporting the Green movement in 2009. At one demonstration he injured his foot.
• Undercover officers raided his university, broke and seized computers, and forced it to close on the basis of its coeducational policy. After this incident the Appellant decided to leave Iran.
On 25 January 2017, a delegate of the Minister refused the Appellant’s visa application. As a fast track review applicant, the Appellant’s case was automatically referred to the IAA for review.
THE IAA DECISION
On 28 April 2017, the IAA affirmed the decision of the Minister’s delegate.
The IAA had regard to the material referred to it pursuant to s 473CB of the Migration Act 1958 (Cth) (Act) and obtained and considered new information, being a 2016 DFAT Country Information Report on Iran. The IAA was satisfied that there were exceptional circumstances to justify it considering the report as it was the most recent DFAT country information available but had not been referred to in the decision of the Minister’s delegate.
In consideration of whether the Appellant satisfied s 5H(1) of the Act, the IAA noted that the Appellant had been consistent in his account of having been targeting for refusing to participate in group prayer sessions while undertaking compulsory military service, and being questioned on the length of his beard. The IAA accepted that the Appellant is a practising Shia Muslim and that he did not like the manner in which the clergy prayed or agree with their way of practising Islam. The IAA found:
12. With respect to fearing harm from the clergy, at his interview the applicant said when he started military service there were religious classes he was required to attend. The clergy would ask the students who they were following and who was their religious leader. He would say that he did not follow anyone specifically and was told that he would be dealt with later. He also said that every time there was a religious gathering he was picked on by the clergy telling him that his beard was not long enough and that he was not attending group prayers. When questioned about group prayers at his interview, the applicant said that he preferred to be on his own. The applicant said at his interview that he did not go to group prayers as he did not accept the clergy and he did not believe in them. From the applicant’s evidence, I am of the view that he had distaste for the clergy that he served with in the military. He has said that the clergy picked on him telling him that his beard was not long enough and that he was not attending group prayers, however, apart from these minor incidents there is no evidence that the applicant suffered any harm as a result of his opinions regarding the religious leader or his non-attendance at group prayer sessions. I am of the view that the applicant was singled out because he did not attend mass prayer sessions and his attitude towards the clergy and for no other reason. There is no evidence before me to indicate that the applicant suffered any harm other than mild harassment. I am not satisfied that there is a real chance of serious harm on this basis now or in the reasonably foreseeable future.
The IAA then reasoned as follows:
13. The applicant claimed in his interview that he started to suffer from depression when he was in the military and that he “was a bit out of control and anxy and speaking very fast”. He had a consultation with a doctor who gave him an injection which he said would calm the applicant down and that he would be relaxed. The applicant claimed that after he received this injection he started to have complications with his breathing slowing and his heart stopping to beat. His family were immediately called and he was discharged into their care. The applicant claimed that this condition caused him trouble for quite some time. He claimed that the ability to find employment was limited as a result of being discharged from the military. The applicant also claimed that the incident involving the injection was serious enough to almost kill him. After this incident, his mother went to the headquarters of his military and he received an exemption on medical grounds.
14. The applicant has been consistent in his description of these events from his arrival in Australia and I accept that he started to suffer from anxiety and depression when he was in the military. I also accept that he had an episode which required him to see a doctor in the military. I accept that the applicant received treatment for this episode. There is very little detail provided by the applicant about the nature of the treatment and apart from the applicant’s assertion that it ‘may have been lethal’ and that he had an adverse reaction to it, there is no other evidence relating to his treatment or the effects of the medication. Nevertheless, I do accept that the applicant was unwell whether that was from the side effects of his medical treatment or as a result of his medical conditions and he could not continue with his military service and was discharged. On the evidence, I am not satisfied that apart from the applicant’s speculative assertions, the injection given to him was ‘lethal’ and I do not accept that this was the case. I also do not accept that there was any intention to harm the applicant.
The IAA did not accept that the Appellant would not be able to secure employment on the basis of his having been discharged from the military with mental health issues, noting that he had in fact been employed following his discharge in 2011. The IAA did not accept the Appellant’s claim that he was unable to continue with his education in Iran, noting that he had attended primary, middle and high school before studying at an institute and then university, and that there was no evidence to suggest the Appellant was ever denied any form of education.
Based on the evidence given by the Appellant at interview, the IAA accepted that he had participated in the 2009 Green movement protests and had been followed by the Basij and injured his foot in a motorcycle accident when leaving a demonstration. However, given the passage of time, the IAA was not satisfied that the Iranian authorities would have any interest in the Appellant. The IAA was further unsatisfied that the Appellant would participate in any further political activity that would cause him to be targeted, given the lack of enthusiasm, interest and commitment he demonstrated at interview.
The IAA accepted that an incident occurred at the Appellant’s university where some people were assaulted and some computers and other equipment were destroyed. As the Appellant had not suffered any harm or been threatened in relation to this incident, and does not suggest he was the target of the raid, the IAA was not satisfied it could give rise to a real chance of persecution.
The IAA concluded that the Appellant does not have a well-founded fear of persecution, and consequently did not satisfy s 36(2)(a) of the Act.
The IAA considered whether the Appellant satisfied the complementary protection criteria as contained in s 36(2)(aa) of the Act. The IAA found that the Appellant faced no real risk of significant harm on the basis of his experiences during military service, his religion, and the incident at his university. The IAA further found he would not have a profile that would put him at risk of significant harm.
The IAA consequently affirmed the decision of the Minister’s delegate not to grant the Appellant a visa.
THE PRIMARY JUDGE’S DECISION
The applicant was self-represented and appeared with the assistance of an interpreter before the primary judge. The single ground of review advanced was set out at [2] of his Honour’s reasons:
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.
Despite leave being given, the Appellant did not amend the review grounds advanced. The Appellant made oral submissions before the primary judge. Those submissions were summarised by the primary judge as follows:
18 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 property 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.35(2A) was that a person would suffer significant harm if they will be arbitrarily deprived of their life.
19 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.”
20 Immediately after that incident occurred, he was given what he described as the “lethal injection”. He told the Court hat 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.
21. The applicant was not able to identify, with any clarity, a basis upon which he said he had been denied procedural fairness.
The primary judge subsequently set out the submissions that the Appellant advanced in reply, including that he had been aware of the invitation to provide submissions to the IAA but that he had no money to pay for a lawyer and had not known what to do. The primary judge noted that there was no evidence of the Appellant having sought an extension of time within which to respond to the invitation to make submissions. The Appellant further submitted that he could have his military discharge card translated for the Court if necessary, as that document contained the details of his discharge, which would affect his employment prospects. The primary judge noted (at [25]):
… 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 in 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.
The primary judge found that the IAA had given detailed and comprehensive consideration to the Appellant’s claims and the most recent country information, and that it was not evident that the IAA had ignored or misconstrued any aspect of the Appellant’s claims. The primary judge referred to the IAA’s consideration and findings with respect to the claim that the Appellant would be unable to find employment and his claimed experience in the military and circumstances of his discharge.
The primary judge concluded:
28. 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.
29. 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.
The primary judge concluded that the Appellant was dissatisfied with the outcome of the IAA’s review, but noted that it was not open to engage in impermissible merits review. The primary judge accordingly dismissed the application.
THE APPEAL
The ground set out in the Appellant’s notice of appeal is as follows:
The Federal Circuit Court Judge has not considered my case properly and has just accepted the decision of the IAA. My case has been rejected because I do not fall within the usual profile of someone who opposes Islam. Because I have not [been] able to afford a lawyer, I have not been able to properly explain that simply by practising my religion differently means that I can be killed under blasphemy and apostacy [sic] laws.
The Appellant’s submissions
At the hearing of this appeal, the Appellant, who appeared with the assistance of an interpreter, submitted that if his appeal is unsuccessful, he will face torture, death or imprisonment upon return to Iran. He submitted that he had been unable to afford legal representation, and that he had had difficulty understanding the substantive and procedural law that governed the judicial review process. The Appellant otherwise referred to the claims that he had advanced previously.
Minister’s submissions
The Minister submitted that, as the ground now advanced was not raised before the primary judge, the Appellant requires leave to advance it on appeal. The Minister submitted that the proposed ground lacks sufficient merit to warrant the grant of leave, noting that no adequate explanation has been given for the Appellant’s failure to raise it before the primary judge.
The Minister’s submissions as to the merits of the ground are as follows:
The Court below did not consider the case properly and just accepted the decision of the IAA
27. In the Court below, the Appellant’s ground of review was framed in generic terms and did not clearly articulate the basis for the alleged jurisdictional error. The Appellant was not able to identify any claims that were not taken into account by the IAA nor any basis for being denied procedural fairness. Despite this, the judgment of the Court below demonstrates that the primary judge gave detailed consideration to the decision of the IAA and the evidence before it. In particular, the primary judge:
27.1. reviewed the IAA’s decision, finding that it gave detailed and comprehensive consideration to the claims of the Appellant
27.2. was not able to discern any respect in which the IAA ignored or misconstrued the Appellant’s claims
27.3. considered the findings reached by the IAA and was satisfied that the findings were open to it on the material, and that there was nothing illogical, unreasonable or irrational about the findings
27.4. considered the complaint of a lack of procedural fairness, and determined that the IAA fulfilled its obligations with respect to undertaking a review under Part 7AA of the Act.
28. Having reviewed the IAA’s decision for jurisdictional error, the primary judge properly discharged his responsibility (see further below) and did not merely accept the decision of the IAA.
Inability to afford a lawyer and ability to explain risk of harm
29. The Appellant complains that he did not have a lawyer and as a result, was therefore unable to properly explain that practising his religion meant that he could be killed under blasphemy and apostasy laws. It is unclear whether the Appellant’s complaint relates to not having a lawyer before the Court below, or the IAA.
30. There is no specific right of legal representation in migration judicial review proceedings. The requirements of procedural fairness do not require publicly funded legal representation, nor a stay of proceedings until a lawyer is appointed.
31. In ensuring a fair trial, the court is obliged, so far as is reasonably practicable, to take appropriate steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the court. As such, the Court below was obliged to ensure that the Appellant suffered no meaningful disadvantage by reason of a lack of legal representation. Where a litigant is unrepresented it may be appropriate for a trial judge to take a more active role in guiding them through the proceedings, however it is not the function of the court to give advice to, or conduct the case on behalf of the unrepresented litigant.
32. In this context, it should be noted that in the present case, while before the Court below, the Appellant had the assistance of an interpreter and was provided with the Court Book, the contents of which were translated to him. The Appellant was afforded the opportunity to make submissions to the Court.
33. It is clear from the judgment of the Court below that, notwithstanding the general basis on which the ground of review was expressed by the Appellant, the primary judge undertook a thorough review of the IAA’s decision to determine whether it was affected by jurisdictional error.
34. The fact that the Appellant was unrepresented before the IAA did not result in his being unable to explain the consequences of practising his religion. In particular it should be noted that:
34.1. during the Appellant’s arrival entry interview, the Appellant was assisted by a Farsi interpreter and was asked relevant questions as to why he left his country of nationality
34.2. in the visa application, the Appellant was interviewed with an interpreter, and invited to provide any documents or evidence that would assist his claim
34.3. the Appellant was sent an acknowledgement letter by the IAA, which attached a fact sheet advising that he could provide further information to the IAA, but did not do so.
35. In light of the ample opportunity to provide information, and the fact that the risk of harm to the Appellant was a central issue considered by the IAA, the Appellant’s ability to explain the consequences of practising his religion did not require a lawyer.
36. In any event, the IAA was alive to the consequences of the Appellant practising his religion. For example:
36.1. the IAA noted that the Appellant was a Shia Muslim
36.2. the IAA noted that apart from issues when the Appellant was in the military, he did not claim to be in fear of harm in Iran because of his religion
36.3. the IAA noted that while in the military, the Appellant was picked on by the clergy, including for his beard not being long enough and not attending group prayers. The Appellant said that he made known that he did not follow the teachings of the Khomeini and did not want to pray in a group when he did not accept the cleric. The Appellant would instead pray alone. However, there was no evidence of suffering any harm as a result; rather he suffered mild harassment as a result
36.4. despite the opportunities afforded (see above), the Appellant did not provide any other information that demonstrated a risk of harm as a result of practising his religion
36.5. as such, the IAA concluded that there was no real chance of the Appellant suffering harm on the basis of his religion.
37. The Appellant was provided with ample opportunity to provide information concerning the risk to him of practising his religion, did provide such information to the delegate, and was not prevented from doing so because of the fact that he was unrepresented.
(Footnotes omitted.)
Consideration
The single ground of appeal raised before this Court advances a number of allegations. I will deal with each as if it were a standalone ground.
The primary judge did not properly consider the Appellant’s case
In my view, the first sentence of the Appellant’s ground of review is to be understood at taking issue with the primary judge’s consideration of the ground that was advanced before him. I do not consider this to be a new ground of appeal for which the Appellant requires leave.
The Appellant has not particularised the primary judge’s alleged failure. The ground that was pursued at first instance was similarly unparticularised. However, I am not satisfied that there is any basis upon which this Court could conclude that the primary judge erred as contended. His Honour considered the IAA’s analysis and conclusions with respect to each of the claims that had been advanced by the Appellant in his visa application in a considered and comprehensive manner. Any brevity in his Honour’s reasons is a result of the unfocused and general nature of the ground of review that was before him, as opposed to a superficial engagement with the decision and reasons of the IAA.
I accept the submissions advanced on behalf of the Minister and would agree with the primary judge’s consideration and conclusions. The nature of the ground and submissions advanced before the primary judge suggest that the Appellant takes issue with the IAA’s findings, which were open to it on the material before it, rather than identifying any error of law.
The Appellant’s case was rejected because he does not oppose Islam
The second sentence of the ground of appeal before me asserts that:
My case has been rejected because I do not fall within the usual profile of someone who opposes Islam.
I take that to contend that the IAA affirmed the decision of the delegate of the Minister because the Appellant does not oppose Islam. No such ground was advanced before the primary judge and the Appellant requires leave to raise it on appeal.
The factors that the Court may have regard to when considering whether to grant leave to raise a new ground on appeal were set out by Madgwick J in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; 147 FCR 51 at [166] (Conti J agreeing). Relevant to the present appeal, those factors include the prospects of success of the proposed new ground, the explanation for the failure to raise the ground at first instance, any prejudice to the respondent, and the interests of justice in all the circumstances of the case.
No explanation has been given as to why this issue was not raised before the primary judge. However, as the appellant was self-represented before the Federal Circuit Court, I do not consider that factor to be determinative of whether leave should be granted.
The Minister does not submit that he would be prejudiced if leave were granted to the Appellant to rely on grounds not advanced before the primary judge. I therefore consider the merits of the proposed ground to be the primary consideration with respect to the issue of leave.
I do not think that any ground of appeal asserting that the IAA’s decision was made on the basis of the Appellant’s religious beliefs has any prospects of success. There is nothing in the materials before me to suggest that the IAA formed the view that the Appellant contends it did. Rather, the IAA engaged meaningfully with the Appellant’s claims that he had been harassed during his military service on the basis of preferring to pray alone rather than attend group prayers, and that he was singled out for that reason (at [9]-[12] of the IAA’s reasons). There is no proper basis for this Court to grant leave to as would permit the Appellant to rely on that ground.
The Appellant’s inability to afford a lawyer and to explain the harm he would face
The Minister submits that it is unclear whether the Appellant’s complaint is that he was unrepresented before the primary judge or before the IAA. Before the primary judge, in the context of discussion about why the Appellant had not respondent to the invitation to make submissions to the IAA, the Appellant had submitted that he had not been able to afford a lawyer. I therefore understand this ground of appeal to be a reiteration of that complaint. However, as it was not advanced and considered as a standalone ground of review before the primary judge, the Appellant requires leave of the Court to raise it on appeal.
As set out above, the Court will have regard to the merits of the proposed ground, the explanation for the failure to raise it at first instance, any prejudice to the respondent and the interest of justice in determining whether to grant leave to rely on new grounds of appeal.
I see no prejudice to the Minister if the Appellant were granted leave to rely on this ground. Indeed, the Minister has addressed this ground at [29]-[37] of his written submissions. Although the Appellant did not advance this ground before the primary judge, as a self-represented litigant I would not refuse leave on the basis that he has not explained his failure to do so. I consider the merits of the proposed ground to be dispositive to the issue of leave.
I accept the Minister’s submission that the requirements of procedural fairness do not include publicly-funded legal representation. I respectfully refer to the findings of the Full Court (Flick, Griffiths and Perry JJ) in AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68; 241 FCR 30 at [51]:
… [W]e do not accept the applicant’s contentions that he had a right to publicly funded legal representation as an aspect of the requirements of procedural fairness or, alternatively, was entitled to have the proceeding stayed. Mr Williams was unable to point to any authority to support these contentions. The contentions are inconsistent with High Court authority, including Dietrich at 297-298, per Mason CJ and McHugh J, at 317 per Brennan J, at 330 per Deane J, at 343 per Dawson J, at 356 per Toohey J and at 364-365 per Gaudron J; The State of New South Wales v Canellis [1994] HCA 51; 181 CLR 309 at 328-331 per Mason CJ, Dawson, Toohey and McHugh JJ and see also Thomas v Mowbray [2007] HCA 33; 233 CLR 307 at [111] per Gummow and Crennan JJ.
The Appellant’s arrival interview and visa interview were conducted with the assistance of a Farsi interpreter. The correspondence sent to the Appellant in relation to the IAA’s review contained contact details for a “Translating and Interpreting Service”, and the “What you need to know” attachment was included in Farsi. I am not persuaded that the Appellant required the assistance of a lawyer to enable him to explain his claims, including the consequences of him practising his religion differently. The fact that the Appellant was unrepresented before the IAA cannot give rise to any appellable error.
To the extent that the Appellant takes issue with his being unrepresented before the primary judge, I would accept the submissions advanced on behalf of the Minister at [30]-[33]. In particular, I note that the primary judge adjourned the hearing of the Appellant’s judicial review application to enable an interpreter to translate the Court Book to the Appellant, and that the primary judge, faced with a general and unparticularised ground of review, engaged meaningfully with the reasons of the IAA in order to determine whether it had fallen into error.
This ground of appeal has no prospects of success and I would not grant leave to rely upon it.
DISPOSITION
Leave to amend the grounds of appeal should be refused. The appeal must be dismissed with costs.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr.
Associate:
Dated: 21 May 2019
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