CDD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 169
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CDD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 169
File number(s): ADG 159 of 2018 Judgment of: JUDGE HUMPHREYS Date of judgment: 18 March 2022 Catchwords: MIGRATION – Immigration Assessment Authority – application for reinstatement – whether there was a reasonable excuse for absence – whether there are reasonably arguable prospects of success – no reasonable excuse for absence – the application is dismissed with costs. Legislation: Migration Act 1958 (Cth) s 376
Federal Circuit Court Rules 2001 (Cth) r 13.03
Cases cited: Iyer v Minister for Immigration & Multicultural Affairs [2001] FCA 929
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
NAIS and Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of last submission/s: 15 March 2022 Date of hearing: 15 March 2022 Place: Parramatta Solicitor for the Applicant: Ms Byers – Michaela Byers Solicitor Solicitor for the Respondents: Mr Waldron – The Australian Government Solicitor ORDERS
ADG 159 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CDD18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
18 MARCH 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2.The application is dismissed
3.The Applicant to pay the First Respondent’s costs, fixed in the amount of $2500.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant claims to be an Iranian national of Arab ethnicity. The applicant arrived in Australia on 5 June 2013 as an unauthorised maritime arrival. On 13 January 2013, the applicant applied for a Safe Haven Enterprise visa (“SHEV or Protection visa”).
On 31 July 2017, a delegate of the Minister for Immigration and Border Protection (“the delegate”) refused to grant a Protection visa. The applicant sought merits review in the Immigration Assessment Authority (“the Authority”). In a decision dated 11 April 2018, the Authority affirmed the decision of the delegate not to grant the applicant a Protection visa. The applicant sought judicial review of the Authority’s decision.
On 28 June 2019, the matter was listed before a Registrar of the Court in Adelaide. The applicant failed to appear. The matter was dismissed pursuant to rule 13.03C(1)(c) of the then Federal Circuit Court Rules 2001 (Cth). The applicant was ordered to pay the first respondent’s costs fixed in the amount of $2,500.00.
On 19 May 2021, the applicant filed an application seeking to have his matter reinstated. In an Application in a Case, the applicant sought to:
1. Quash the order of 28 June 2019.
2. Re-list this matter for hearing.
3. Amend the grounds of the application.
THE LAW
The relevant principles in relation to reinstatement are conveniently set out in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]. Reinstatement is discretionary and 3 factors should be considered:
a) Whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;
b) the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;
c) Whether the applicant has a reasonably arguable prospect of success on the substantive application… If not, then there is no purpose in reinstatement.
To the above factors, the Court would add in this case, the reasons for the delay between the application being dismissed and the application for reinstatement.
THE EVIDENCE
In relation to the applicant’s inability to attend the Court on 28 June 2019, the applicant affirms in an Affidavit of 30 April 2021 that he had no fixed residence or access to a phone or email. The applicant deposed that he had been using drugs heavily around this time and had no memory of the Court event, nor was he in a position to receive mail. The applicant further deposed that he did not know how to make contact with the Court and that he did not make contact either prior to or immediately after the hearing date to explain his absence. The Court does not consider the reasons for failing to attend the hearing on 28 June 2019 to be strongly in favour of reinstatement. The Applicant appears to have made no inquiry either by telephone or in person as to where his matter was up to.
In the applicant’s Affidavit of 30 April 2021, he suggests that the reason for the delay in seeking reinstatement was that had been imprisoned during that period and was making attempts to get his life in order.
The first respondent submitted that since the applicant was detained in immigration detention he would have had access to email. There has been no adequate explanation as to why there was a delay of about 10 months during this period whereby the applicant had the means to file an application. Again, this factor does not favour reinstatement.
In relation to the prejudice caused to the first respondent, the Court notes the proper concession made by the first respondent that there is no real prejudice to the first respondent. However, this is not the end of the matter. In Iyer v Minister for Immigration & Multicultural Affairs [2001] FCA 929 at [62] the following was said:
… there is a significant public interest in the timely and effective disposal of litigation. This aspect has particular force in this area of public law, where delays in dealing with applications for protection visas are obviously to be avoided if possible.
There is also a significant public interest in the finality of administrative decisions. In Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67 at [15] the following was said:
An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.
In the Court’s view, this factor is neutral as regards reinstatement.
In relation to the final matter, being the prospects of success of the substantive application, the Court is not satisfied the applicant, even on an impressionistic basis, has reasonable prospects of success for the reasons set out below. If there is no reasonable prospect of success, even at an impressionistic level, there is no point in reinstating the matter.
THE IMMIGRATION ASSESSMENT AUTHORITY DECISION
After setting out the relevant background and the law, at paragraph 12 of its decision, the Authority accepted that the applicant is an Iranian national, and that his identity is as claimed.
In the applicant’s application for a Protection visa, he claimed that in 2005 he participated in a demonstration against the Iranian regime. The applicant claims he was arrested and detained for several weeks. After about 28 or 29 days of detention, the applicant was hit over the head and hospitalised for some six months with a brain injury.
In 2009, the applicant and his two brothers participated in a demonstration against the Ahmedinejad government regime. The applicant claims that he and his brothers were all detained and his oldest brother was sentenced to 9 months imprisonment. The applicant claims that he and his younger brother were released on bail after being remanded for 13 days before being later acquitted of all charges.
When questioned about the different treatment of the applicant’s older brother, he claimed that his older brother was the campaign manager for the opposition candidate.
In 2012 the applicant and three of his friends wrote anti-regime slogans on public walls. Two of the applicant’s friends were arrested as a result. The applicant claims that he moved to Tehran to stay with his uncle out of fear. When in Tehran, the applicant’s family home was raided by authorities who were looking for the applicant.
At entry interviews with the Department on 14 June 2013 and 9 July 2013, the Authority noted that the applicant had not raised any of the issues later raised in his SHEV application. When asked why the applicant had left Iran, he answered that Arabs has no status in Iran and that they had been suppressed since the 2005 bombings. When asked whether the applicant or any of his family members had been associated with any political group or organisation and whether he had ever been arrested or detained he answered “no” to everything. When asked whether he had participated in the 2005 “riots”, the applicant answered “no”. The applicant also stated as part of his entry interview that he was exempted from military service due to a brain injury that had resulted from a motorcycle accident when he was about 19 or 20 years of age.
At a later interview with his case manager in 2016, the applicant stated that he was in a coma for six months after having been hit by a police car.
At paragraph 12 of its decision, the Authority accepted that country information broadly supports the applicant’s claims of discrimination against Ahwazi Arabs and human rights abuses against and suppression of Arab political activists.
At paragraphs 14 and 15 of its decision, the Authority was not satisfied that the applicant provided consistent or credible evidence that he has suffered any specific discriminatory treatment. The applicant’s statements at his entry interview regarding expulsion from school due to being Arab is inconsistent with the evidence of the timing and extent of the brain injury, should that be accepted, which would have been a more likely reason for not being able to continue schooling. The applicant did not provide evidence of workplace discrimination. The applicant claimed that it was unsafe to be on the streets and this was the reason for leaving his employment in repairing electrical goods.
Paragraph 16 of the Authority’s decision and onwards, discusses the applicant’s statements as they relate to political activities, arrests and detentions. Before his SHEV application, the applicant had not mentioned his participation in 2005 or 2009 demonstrations. In fact, at the applicant’s entry interview he denied being involved in the 2005 demonstrations. In his SHEV application, the applicant claimed to have been detained twice and said that two of his brothers had also been arrested and detained, of which one of the brothers remains imprisoned after nine years. At the applicant’s entry interview, he answered “no” when asked he or any family members had been involved in activities or protests against the government or whether he had ever been arrested or detained. Before the applicant’s SHEV application, he had not mentioned the incident involving the writing of anti-government slogans on public walls that led to the arrests of his two friends, or any other specific event that caused him to leave Iran.
At paragraph 17 of its decision, the Authority takes issue with the inconsistent accounts for how the applicant had received his brain injury. At the entry interview, the applicant stated that it was the result of a motor vehicle accident, in an interview with his case officer in 2016 he said that it resulting from being hit by a police car, and finally in his SHEV application it was said that the brain injury was caused by being hit in the head with a police baton during an interrogation.
At paragraph 18 of its decision, the Authority details the applicant’s response to being asked about the inconsistencies in his statements concerning his and his family member’s political activities, their arrests and detentions, and the cause of his head injury. The applicant explained that other Iranian nationals had told him that if he had indicated that he had any problems with police that he would be deported or sent to Nauru, and that he was too scared to explain what had really happened.
At paragraph 19 of the Authority’s decision and onwards, the applicant provided further explanations for his answers in that, what was said at the entry interview was “in brief” a summary, but also true and that he was frustrated, had a hurt shoulder and did not know who to believe. When asked why the applicant had not disclosed, if not his own issues with Iranian authorities, those of his brothers, he replied that, he thought that he could be seen as their accessory and further explained that all Arabs have problems with police and security authorities.
At paragraph 22 of its decision, the Authority took issue with the applicant’s claim that his brain injury caused memory problems and confusion as there was no medical evidence to suggest that this was an ongoing issue. The Authority did not accept the applicant’s sore shoulder as being a justification for not providing full information about his reasons for leaving Iran and not wanting to return.
At paragraph 23 of its decision, the Authority does not accept the applicant’s reasons that being the advice of other detainees, for why he was not truthful when asked about his and his family member’s political associations, arrests and detentions, in circumstances where the questions asked are designed to elicit information relevant for a protection claim.
At paragraph 24 of the decision record, the Authority does not accept that the applicant’s reasoning for not providing relevant information at the entry interview was because he was told to keep his answers brief, as his answers concerning the discrimination towards Arabs in general were detailed.
The Authority rejects many of the Applicant’s protection claims at paragraph 25 of its decision, and instead finds that the information provided at his entry interview was the truth. The Authority opined that the protection claims were fabricated at a later time to strengthen the applicant’s SHEV application.
When asked to provide documents that attest to any of the applicant’s or his brother’s interactions with the Iranian legal system the applicant said that he did not think he could, and that political offences are not documented.
At paragraph 26 of its decision, the Authority noted that the failure to provide documentary evidence was not fatal to the applicant’s application, but that it was a factor weighing against the truthfulness of his claims.
From paragraphs 28 to 30 of its decision, the Authority discusses the applicant’s brain injury. The Authority accepts that the applicant was injured in 2005, and that this would be consistent with him having left school and being exempt from military service. Provided with the inconsistent accounts for the applicant’s brain injury, the Authority did not accept that the injury was caused from physical mistreatment in detention rather that it was because of a traffic accident. Even if this was caused by a police car as later suggested in 2016, there was no evidence to support that this was anything other than an accident. The Authority accepted that confusion concerning dates could have resulted from conversion between the Persian to Gregorian calendar, or even due to the lapse of time, but ultimately rejected that the brain injury explains why the applicant lied about the cause of this injury until the SHEV application.
Paragraphs 31 to 33 of the Authority’s decision deal with the applicant’s Christianity. The Authority acknowledged that the applicant was on notice that his claimed conversion to Christianity was not accepted, but that he did not provide any further evidence to demonstrate practice of this religion. The Authority failed to accept that the applicant was a Christian convert or that he has maintained involvement with or interest in Christianity in Australia or would do so upon return to Iran.
At paragraphs 34 and 35 of the decision record, the Authority notes that there is no information to suggest that asylum seekers are prosecuted or punished on return to Iran for having sought asylum. The Authority was not satisfied that any element of the applicant’s background, including his Arab ethnicity and lack of political activist or dissident profile, would cause him to attract additional scrutiny or harm on return.
Accordingly, the Authority was not satisfied that the applicant met the definition of a refugee in s 5H(1) of the Migration Act 1958 (Cth) (“the Act"), nor does he meet the refugee criteria in
s 36(2)(a) of the Act.
GROUNDS OF JUDICIAL REVIEW
In an Originating Application filed 27 April 2018, the following appears under the Grounds of application:
Ground One
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.
No particulars were provided to support this ground.
In the applicant’s application for reinstatement, an order was sought to ‘Amend the grounds of the application’, however, no further amended grounds have been filed with the Court. The applicant provided two new grounds of judicial review in written submission to the Court. They can be summarised as follows:
Ground One
The Authority acted legally unreasonably by making a finding on 11 April 2018 that the applicant did not have a genuine and ongoing commitment to Christianity based on evidence and information given to the delegate on 22 March 2017.
Ground Two
The Authority was legally unreasonable in finding that the Applicant was not Christian without exercising its discretion under s 473DC(3) to request the Applicant to provide further information regarding his practice of Christianity.
THE APPLICANT’S SUBMISSIONS ON MERIT
After providing the factual and procedural background, and an explanation for the delay, the applicant’s legal representative stated that the initial ground of review was incompetent.
The applicant submitted that the Authority’s failure to ask for information under
s 473DC(3) of the Act, in relation to the applicant’s ongoing attendance at church or engagement with Christianity, was legally unreasonable.
The applicant also submitted that the Authority’s finding that it was not “satisfied that the applicant has maintained any involvement with or interest in the Christian faith in Australia”, lacks evident and intelligible justification as the inference was not put to the applicant for comment, had no material factual basis and was legally unreasonable.
The applicant further submitted that apart from the Authority’s failure to exercise its discretion under s 473DC(3) of the Act, it also failed to consider an integer of the applicant’s Christianity claim in that “regardless of whether or not the Applicant is a genuine Christian, has be abandoned Islam and is an apostate?”.
The applicant finally submitted that there are fairness and wider public interest elements that support his claim for review. The applicant’s circumstances are unique and there are no individuals who are in comparative positions. In relation to public interest, the applicant submitted that the following evoked the public interest criteria:
a) The Applicant is in immigration detention and he has exhausted all domestic legal avenues to resolve his status in Australia;
b) The Applicant is an Iranian citizen and Iran has a longstanding and global policy of not accepting involuntary returnees;
c) Voluntary repatriation to Iran is not an option for the Applicant as his partner and son are Australian citizens and his partner is not an Iranian citizen and she practises Christianity;
d) The Applicant’s immigration detention is indefinite as is his separation from his partner and son; and
e) The separation of the Applicant from his partner and son causes emotional, psychological and financial hardship to his partner and son.
THE FIRST RESPONDENT’S SUBMISSIONS ON MERIT
After setting out issues in relation to the applicant’s explanation for failing to appear and the delay in seeking reinstatement, the first respondent submitted that the two proposed grounds of review, on their face, do not have sufficient prospects of success.
The Authority’s finding that it was “not satisfied on the basis of the available information that the applicant has demonstrated that he was a Christian at the time of the SHEV interview, or that he had, or has, genuine and ongoing commitment to Christianity...Nor am I satisfied that the applicant has maintained any involvement with or interest in the Christian faith in Australia, or that he would do so on return to Iran”, was the only finding reasonably open to it. The Authority did not believe applicant’s evidence to date that he had an interest in Christianity and no further evidence was provided to suggest otherwise. The applicant was given an opportunity to provide submissions as to the delegate’s findings but failed to mention his Christianity claims at all: (see; Court Book 19-21).
On 31 July 2017, the delegate did not accept that the applicant was a Christian convert. The first respondent submitted that from this date onwards the applicant was aware that this was a determinative issue but did not provide any new evidence to provide his genuine and ongoing commitment to Christianity. When later attempting to prove why the delegate’s decision was wrong in other respects, the applicant failed to refer to his Christianity claim. It was not a matter for the Authority to exercise its discretion to obtain new evidence on this issue, particularly because the Authority did not believe the applicant’s claimed interest in Christianity.
The first respondent submitted that it was reasonable for the Authority to find that the applicant had not maintained any involvement or interest in Christianity as there was no evidence in support of these claims, and the Authority did not believe that the applicant had ever been interested in Christianity to begin with.
Accordingly, it was submitted that no jurisdictional error is made out even on an impressionistic basis such as to warrant the Court exercising its discretion to grant reinstatement.
CONSIDERATION OF THE MERITS OF THE AMENDED GROUNDS
The first ground claims that it was legally unreasonable for the Authority to come to the conclusion that the applicant was not a true convert to Christianity. 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) 297 ALR 225 (“Li”) at [28]). A decision may also be unreasonable where it lacks an “evident and intelligible justification”: (see; Li at [76]). The test for unreasonableness is “stringent” and will only arise 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 judgements made by a decision-maker: (see; Li at [30] and [113]). Further, it is well established the Tribunal is not required to accept uncritically any and all my claims made by an applicant:
(see; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]).
The Court is satisfied that the findings of the Authority were open to it on the evidence and materials before it, and for the reasons it gave. The Court is not satisfied that those findings were tainted by any failure to afford procedural fairness or reaching a finding that was without illogical or probative basis. The applicant claimed to the delegate that he had converted to Christianity. It was not previously claimed in his Protection visa application. The Authority dealt with the matters at paragraphs 31 to 33 of its decision. The Authority properly cautioned itself as to the problems associated with evaluating a person’s religious belief but found the material provided by the applicant to be superficial. Further, the applicant did not provide to the delegate any independent material which might have supported his claim of conversion from Islam to Christianity. The finding that the applicant was not a convert was open to it for the reasons it gave. Ground one has no merit.
Ground two fails to raise any matter which discloses a jurisdictional error on the part of the Authority. Ground two suggests it was legally unreasonable for the Authority not to seek new information from the applicant about his conversion to Christianity due to the lapse of time between the delegate’s decision and the decision by the Authority. First, the time delay was not excessive. The delegate made their decision on 31 July 2017. The Authority handed down its decision on 11 April 2018. The applicant relies upon NAIS and Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 at [9], [106] and [172]. The Court is not satisfied that the delay in this case was sufficient to raise issues of inherent unfairness as found in that decision.
The course adopted by the Authority in not seeking further information from the applicant was entirely unremarkable. Further, the applicant’s representative provided the Authority with a submission set out at paragraph 5 of the decision record. That submission made no reference to additional material as to the applicant’s conversion to Christianity. Section 473DB of the Act makes it clear that any review should be made without accepting or requesting new information and without interviewing the applicant. Significant limits on what new information may be accepted are set out in s 473DD of the Act including the existence of exceptional circumstances. The Court is not satisfied there was anything unreasonable on the part of the Authority not to seek new information from the applicant. Ground two has no merit.
CONCLUSION
The Court is not satisfied with the explanation given by the applicant in relation to his failure to appear when the matter was dismissed, is also not satisfied with his explanation as to the delay in lodging the application for reinstatement.
While the Court notes the proper concession by the first respondent as to prejudice, the Court is concerned that there should be finality in this matter which involves the consideration of constitutional writs.
Lastly, and most importantly, a consideration of the proposed new grounds of judicial review does not reveal, even on impressionistic basis, that the matter has merit. In the circumstances it would be pointless for the Court to exercise a jurisdiction in favour of the applicant to reinstate the matter.
Accordingly, the application to reinstate must be dismissed with costs.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Deputy Associate:
Dated: 18 March 2022
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