CIE15 v Minister for Immigration

[2017] FCCA 3172

FEDERAL CIRCUIT COURT OF AUSTRALIA

CIE15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3172

Catchwords:
MIGRATION – Application for judicial review – International Treaties Obligations Assessment – whether the assessor erred in concluding that Australia does not have non-refoulement obligations with respect to the applicant – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.46A(2)

Cases cited:

SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125

Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29

Applicant: CIE15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: BRENDA LEEDS, IN HER CAPACITY AS CASE OFFICER, IMA PROTECTION, VICTORIA

File Number: MLG 2466 of 2015

Judgment of: Judge Riethmuller

Hearing date: 8 November 2017

Date of Last Submission: 8 November 2017

Delivered at: Melbourne

Delivered on: 18 December 2017

REPRESENTATION

The Applicant appeared In Person

Counsel for the Respondents: Mr Mosley

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2466 of 2015

CIE15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

BRENDA LEEDS, IN HER CAPACITY AS CASE OFFICER, IMA PROTECTION, VICTORIA

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of an International Treaties Obligations Assessment (“ITOA”) dated 27 May 2015 of the second respondent.  The ITOA was undertaken for the purposes of assessing whether Australia has non-refoulement obligations to the applicant under various international treaties.  The assessor concluded that Australia does not have non-refoulement obligations with respect to the applicant.

2. The applicant arrived in Australia as an unauthorised maritime arrival on 17 November 2011, and was taken to Christmas Island.  The applicant claims to have lived in Iran as a stateless person of Faili Kurd ethnicity and Shia Muslim faith.

3. The applicant’s claims for protection have been assessed by the Department through several processes.  A Refugee Status Assessment (“RSA”) interview was conducted on 7 February 2011, and a negative RSA was made on 4 April 2011.  On 16 June 2011, the applicant requested an Independent Merits Review (“IMR”) of the RSA, and a negative IMR recommendation was made on 7 December 2011.  On 13 January 2012, the applicant applied for judicial review of the IMR in the Federal Magistrates Court (as it was then called), and the application was dismissed by Driver FM (as his Honour then was) on 7 August 2012 (see Court Book 206-223). 

4. On 29 October 2012, the Department informed the applicant that it had conducted a Post-Review Protection Claims Assessment, however it had concluded that the applicant had no entitlements to remain in Australia. 

5. On 26 January 2013, the applicant applied for Ministerial Intervention and on 19 August 2015, the Department informed the applicant that his case did not meet the Guidelines and was therefore not referred to the Minister for consideration of the exercise of his power under s.46A(2) of the Migration Act 1958 (Cth).

6. On 12 March 2014, the Department wrote to the applicant advising that a routine report released on the department’s website unintentionally enabled access to personal information about people who were in immigration detention on 31 January 2014. 

7. The ITOA was commenced on 25 September 2014.  The applicant provided written submissions and material to the Department on 8 October 2014 (Court Book 270-274), 4 December 2014 (Court Book 294-309), 17 March 2015 (Court Book 362-374) and 1 April 2015 (Court Book 381-388).  The applicant also attended an interview with the assessor on 24 March 2015.  On 27 May 2015, the assessor found that Australia did not have any non-refoulement obligations to the applicant.

8. The matter has had a lengthy procedural history in this Court.  The applicant first lodged the application for judicial review of this decision on 5 November 2015, alleging simply that:

   1.  The Second Respondent in making the ITOA decision failed to accord the applicant procedural fairness and/or made an error of law. 

   2.  The Applicant has made an application for legal assistance through Victoria Legal Aid and is awaiting a decision. 

9. On 11 April 2016, an amended application was filed on the applicant’s behalf by Victoria Legal Aid deleting the second ground and adding the following particulars to the first ground:

   Particulars: 

   On 1 February 2014, the applicant’s personal details were leaked on the Department of Immigrations website (the “Data Breach”).  The applicant was not informed of the full circumstances of the Data Breach, including not being provided with the unabridged KPMG report, and therefore was not given the opportunity to be properly heard on the potential consequences of the Breach.

10. It seems that Victoria Legal Aid also filed a notice of discontinuance on the applicant’s behalf on the same day.  I assume this was an error and intended to be a notice of ceasing to act, as on 12 April 2016 Victoria Legal Aid then filed a further amended application with precisely the same grounds as the amended application. 

11. On 12 April 2016, Registrar Buljan vacated a hearing date of 13 April 2016 and adjourned the matter pending the outcome of the appeal to the High Court from the Full Federal Court decision in SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125.

12. The High Court decision on the appeal, Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29 was handed down on 27 July 2016. Thereafter the matter was listed for a further directions hearing before a Registrar, who made directions on 15 February 2017, including directions requiring the applicant to file and serve any amended application with proper particulars and written submissions 28 days before the final hearing date. The matter was listed before me on 8 November 2017.

13. The applicant did not file and serve any further amended application nor any written outlines, notes or other documents in support of his application.  At the hearing before me the applicant proceeded to identify, in effect, four different bases for challenge to the decision, being: 

    a)the claim that the decision-maker had not properly considered the question of his religious beliefs;

    b)the claim that the decision-maker had not properly understood his claim with respect to statelessness; 

    c)the claim with respect to the data breach that was particularised in his application;  and

    d)further claims with respect to findings about his particular religion. 

14. Whilst it is unsatisfactory that the applicant had not articulated these claims before the hearing, nor even taken the small amount of effort involved in notifying the Court and the other party by way of at least an outline as directed by the Registrar, the matter involves a claim for a protection visa and therefore I proceed to hear and determine each of the bases of claim that the applicant has articulated even though he had not articulated them before today. 

15. In relation to the first claim, the applicant challenges the finding by the assessor that he had “made up” the claim of not being a believer in any religion.  The difficulty confronting the applicant is that the assessor found that as a result of “inconsistencies and contradictions submitted by [the applicant] himself” the assessor was “unable to reliably consider [the applicant] a credible witness” (see p.24 of the decision).   This conclusion follows a page and a half of reasons outlining the various statements made by the applicant through the assessment process.  The assessor noted a number of variations in the applicant’s version of events, as follows:

    a)In an RSA interview on 7 February 2011, the applicant’s representative from Playfair Visa and Migration Services said that:

    It is an obligations of [the applicant’s] religion that he complete a pilgrimage to Hajj during his lifetime.  Should he remain stateless with no documentation, he will be unable to fulfil this aspect of his religion.  (see page 23 at point 4)

    b)At the IMR hearing, which appears to have occurred on 3 October 2011, the claim was again made that the applicant would be unable to undertake a pilgrimage to Hajj if remained stateless. 

    c)In the submission that the applicant made on 4 December 2014, he said that when he left Iran he considered himself to be Muslim even though he had not prayed to Allah for many years (decision p.23.3 and court book p.294).

    d)In his ITOA submissions in 2014, the applicant claimed to be agnostic and to have lied to his boss by saying that he had prayed when in fact he had not, and that he had stopped praying when he was informed that Saddam Hussein had killed 5,000 people. 

16. The assessor summed up on p.23 of the decision as follows:

    As presented at the RSA and IMR interviews [the applicant] is a Shi’a Muslim who needs to undertake the Hajj but cannot do so as he is stateless.  Yet now he claims that prior to coming to Australia he had not engaged in prayer from 2007, lied to his employer in the years when asked if he had prayed and only observed religious celebrations when he was in his village.  Therefore it would appear that [the applicant] is willing to once again contradict himself through this process if it increases or enhances his chances for a positive protection outcome.

17. The assessor identified a significant inconsistency in the version of events given by the applicant.  It was open to the assessor to conclude that the applicant’s credibility was seriously undermined, and therefore reject his evidence on the basis of his material.  I therefore find that the applicant has not established a ground for review in this respect.

18. In relation to the second claim, the applicant challenged the assessor’s finding that he is not a stateless person as set out at the top of p.25 of the decision.  The assessor’s finding is explained by the reasoning given at p.17 of the decision where the assessor said:

    Background

    From [the applicant’s] own evidence both his grandfathers’ were born in villages in Ilam, Iran.  Therefore given the Iranian nationality laws [the applicant’s] parents are Iranian.  [The applicant’s] grandfather was Iranian then so would his father be Iranian regardless of where he was born.  [The applicant] was born and raised in the same village that his paternal grandfather was born in.  His parents remain in the same village and have raised the claimant and his siblings.  His brothers have married, had children and remain in the village or close by to the family.  I accept that [the applicant’s] family and forebears appear to have familial linkages to Musi village Ilam, Iran and the department accepted the IMR’s findings (ADD2013/1193898) regarding [the applicant’s] nationality of being an Iranian Faili Kurd.  I accept that [the applicant] is an Iranian national through descent. 

19. The assessor did go on to consider the alleged risk to the applicant on the basis of his Kurdish ethnicity.  It appears to have been open to the assessor to conclude that the applicant was not stateless as a result of a finding that he was entitled to Iranian citizenship by descent.  Therefore, this ground for judicial review cannot be sustained.  In substance, the applicant seeks a merits review on this basis, which is not open in judicial review proceedings.

20. The third claim raised was concerning the findings by the assessor with respect to the data breach.  The assessor said:

    I have accepted that due to the data breach the Iranian authorities may be aware that [the applicant] has been in Australia and applied for asylum.  I acknowledge that there is a possibility [the applicant] will be questioned upon his return given his lengthy absence.  However, he has not claimed to have any outstanding criminal matter with the Iranian authorities and he has claimed he departed on a genuinely issued passport in another’s name which he no longer has in his possession so he will be returned under the guidance of the International Office of Migration.  I do not consider being processed through an airport upon arrival in Iran and being questioned by Iranian authorities, amounts to serious harm.

21. In this paragraph, the assessor identifies that authorities may be aware that he has been in Australia and applied for asylum as a result of the data breach.  The analysis with respect to the data breach appears at p.22, where the assessor says:

    Data Breach

    The submission from [the applicant] indicates that in 2014 his father was questioned by the Iranian authorities.  [The applicant] has speculated that this may have been caused by the department’s data breach whereby his personal details were displayed for a short period of time.  On 13 March 2014 the Department wrote to [the applicant] to advise him that in February 2014, a routine report released on the department’s website unintentionally enabled access to personal information about people who were in immigration detention on 31 January 2014.  The information accessible included his name, date of birth, nationality, gender and details about his detention.  I accept that the claimant’s personal information released on the department’s website may have been accessed by the authorities in the receiving country.

    I cannot discount that [the applicant’s] father may have been questioned as claimed by [the applicant] stated at his ITOA interview that his father was released after advising the authorities that he had no knowledge of his son’s whereabouts.

22. The assessor proceeded on the basis of accepting that the applicant’s personal information:

    …may have been accessed by the authorities in receiving country.

23. In Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29 the circumstances were similar, in that the decision-maker assumed that the information may have been accessed (see [38] and [90] of the High Court’s reasons): the same assumption as was made in this decision. As a result, the High Court’s reasons at [92] apply equally here:

    [92] SZSSJ and SZTZI were not deprived of any opportunity to submit evidence or to make submissions relevant to the subject-matter of the ITOA process as a result of not having such further information as might be inferred to have been contained in the unabridged version of the KPMG report.  Exactly how and why the Data Breach occurred was simply not relevant to the question of whether one or more of Australia's non-refoulement obligations were engaged in respect of them.  And irrespective of what the unabridged KPMG report might have to say about the identities of the 104 IP addresses from which the document had been accessed during the 14 day period of the Data Breach, the fact would remain that once the document was downloaded the personal information of SZSSJ and SZTZI could have been accessed by anyone.  Even if the unabridged KPMG report might have allowed SZSSJ and SZTZI to prove by reference to the report that one or more of those IP addresses were associated with persons or entities from whom they feared harm, that proof would advance their cases for engagement of Australia's non-refoulement obligations no further than the assumption already made in their favour.

24. In these circumstances, I am not persuaded that the applicant has established a ground for judicial review in this regard.

25. A claim with respect to his status as a failed asylum seeker from a Western country upon return was clearly raised by him in his submissions that appear at p.309 of the court book.  At p.308 of the court book, he raises a concern that he has been informed by family members that, since the information leak, his father had been questioned about his whereabouts and activities by Iranian authorities.

26. At page 31 of the decision, the assessor says that:

    Family contact with Iranian Authorities

    [The applicant] submitted at his ITOA interview that his family members have approached the Iranian authorities numerous times to regularise their status.  I conclude from this statement that [the applicant’s] family members do not hold any fear of approaching the Iranian authorities or fear being deported due to their claimed lack of documents as his family members would present in person to the authorities to have their status regularised.  It would also suggest that having voluntarily approached the Iranian authorities on several occasions to regularise their status, the authorities would be aware of the family’s status of being undocumented hence no reason for detention by the Basij.  It has not been claimed that on any of the occasions when family members voluntarily approached Iranian authorities to discuss their undocumented status that they were detained for being undocumented.

    However, I have found [the applicant] to be an Iranian national through descent from his parents and grandparents.  The Iranian authorities have not shown any adverse interest in [the applicant] or his family members over a thirty year period and [the applicant] also submitted that the Basij do not come to his village and have not impacted on the family’s life.

    Therefore, I find that the Iranian authorities and the Basij have not targeted or shown any adverse interest in [the applicant] and his family members in Musi, Ilam because of their race or for any other reason. 

27. However at p.22, the assessor had accepted the claim that the Iranian authorities had questioned his father after his departure in the circumstances of this case.  The assessor went on to say at p.31:

    Risk of return

    [The applicant] fears that he would be at risk of harm if returned to Iran as a failed asylum seeker returnee from a western country such as Australia.  [The applicant] did not have an adverse profile in Iran prior to his departure for Australia.  Whilst in Australia he has not engaged in any behaviour that would have heightened his profile to come to the attention of the authorities in Iran nor does he claim to have engaged in any political activities in either country.

    I have accepted that due to the data breach the Iranian authorities may be aware the [the applicant] has been in Australia and applied for asylum.  I acknowledge that there is a possibility [the applicant] will be questioned upon his return given his lengthy absence.  However, he has not claimed to have any outstanding criminal matter with the Iranian authorities and he has claimed he departed on a genuinely issued passport in another’s name which he no longer has in his possession so he will be returned under the guidance of the International Office of Migration.  I do not consider being processed through an airport upon arrival in Iran and being questioned by Iranian authorities, amounts to serious harm.

28. When read as a whole it is clear that the assessor was well aware of the data breach claim and evidence that authorities had questioned the applicant’s father as to his whereabouts (p.22).  A fair reading of the reasons with respect to the Basij and his family is that it is a finding with respect to the applicant and his family not the enquiries about his whereabouts in 2014.  The assessor has dealt with two different integers of the claim.  The findings on each integer were open to the assessor.  In the circumstances, I am not persuaded that this amounts to a ground for judicial review.

29. The applicant’s further submissions return to the question of the findings about his religious belief, as referred to above.  In substance, he said that he was a Shiah Muslim in his paperwork on arrival but that, at interviews, had told them that he tried to avoid attending ceremonies.  He said that after he researched religion, he held no religious beliefs whilst in Australia, and that after his arrival in Australia he made comments on Facebook removing his faith and linking to the website of the Iran Athiests and Agnostics.

1. This version differs from that given by him to the assessor (see pp.23 – 24 of the decision).  The assessor did have regard to comments that the applicant had placed upon social media (see the top of p.24) and that this was only produced in October 2014 to the assessor.  In considering this matter, together with the various religious claims, the assessor ultimately concluded that:

   I can only conclude that [the applicant] continues to introduce new and embellished claims to strengthen his case, in order to obtain a positive outcome in the protection visa process.

2. It was open to the assessor to form this view, in light of s.5J(6) of the Migration Act:

   (6) In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph(1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

3. In these circumstances, I am not persuaded that the applicant has established a ground for judicial review in this respect.

4. I heard the parties briefly on costs at the end of the hearing.  It is appropriate that the costs of this matter follow the event and be fixed at the scale fee.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 18 December 2017