CIQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 1085

FEDERAL CIRCUIT COURT OF AUSTRALIA

CIQ18 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS and ANOTHER [2020] FCCA 1085

Catchwords:
MIGRATION – initial application for Safe Haven Enterprise Visa denied – adverse credibility finding against the applicant – no jurisdictional error established – application in a case dismissed

Legislation: Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001 (Cth)

Applicant: CIQ18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1285 of 2018

Judgment of: Judge Street

Hearing date: 6 May 2020

Delivered at: Sydney

Delivered on: 6 May 2020

REPRESENTATION

Applicant: Appeared via audio-link

Solicitors for the First Respondent: Ms S Sangha of Mills Oakley

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application in a case is dismissed.   

3. The applicant pay the first respondent’s costs fixed in the amount of $1,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1285 of 2018

CIQ18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 6 April 2018 affirming a decision of the Delegate not to grant the applicant a Safe Haven Enterprise Visa (SHEV). 

2. The applicant was found to be a citizen of Iran, and his claims were assessed against that country.  In summary, the applicant alleged that he had been the subject of an attack with a friend in about 2010 and suffered injuries to his head and right eye. 

3. The applicant alleged that he engaged in an act of revenge with a friend on the relevant Etelaat officer, and that he was in fear because of the revenge  enacted by him and his friend. The applicant also alleged that he feared harm by reason of his conversion to Christianity.

4. On 28 July 2018, the Delegate found that the applicant failed to meet the criteria to grant a SHEV.  The Authority wrote to the applicant on 3 August 2017 explaining that the application for the SHEV had been referred to the Authority for review.

5. The applicant provided new information and submissions, dated 21 August 2021, that were expressly referred to in the Authority’s reasons. The Authority summarised the background to the visa application and had regard to the material given by the Secretary under s 473CB of the Act. The Authority had regard to the submissions insofar as they engaged with the Delegate’s decision. The Authority identified new information and the Authority found there were not exceptional circumstances to justify considering. The Authority’s reasons reflect that the Authority took into account the whole of the limbs of s 473DD of the Act in considering whether there were exceptional circumstances under s 473DD of the Act.

6. In relation to the applicant’s claimed fear of harm due to his conversion to Christianity, the Authority was not satisfied the applicant would practice the Christian faith on return to Iran. The Authority was not satisfied the applicant faces harm of any kind on return to Iran as a Christian or a person perceived or identified to be a Christian. The Authority accepted that the applicant was badly beaten by three officers of the Etelaat in or around 2010 but, given the applicant’s multiple inconsistencies in his various accounts, did not accept that he engaged in any act of revenge.

7. The Authority did not accept the applicant was involved in an incident where a relative of a Etelaat officer was bashed in revenge for an assault on the applicant and his friend. The Authority did not believe the applicant had told the truth about the events which he claims led to his departure from Iran.  The Authority was not satisfied the applicant was of adverse interest to the authorities at the time of his departure.  

8. The Authority was also not satisfied the applicant would be at risk of harm for any reason connected to the incident in 2010 where the applicant and his friend were assaulted by the Etelaat officers.

9. The Authority took into account the applicant’s mental health condition but did not accept that that explained the want of credibility by the applicant. The Authority identified that the applicant left Iran legally using his own passport. The Authority found that the applicant did not meet the requirements of the definition of refugee under s 5H(1) of the Act. The Authority also found that the applicant did not meet the requirements in s 36(2)(a) of the Act. The Authority found there were no substantial grounds for believing, that as a necessary and foreseeable consequence of the applicant being returned to Iran, that there is a real risk he will suffer significant harm.  The Authority found the applicant did not meet the criteria in s 36(2)(aa) and affirmed the decision under review.

10. These proceedings were commenced on 8 May 2018. On 31 May 2018, the Registrar made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. The matter was listed for hearing on 23 August 2018 as a result of the Registrar’s orders, and the applicant failed to appear on that date, and the proceedings were dismissed under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

11. On 19 February 2020, the applicant filed an Application in a Case which sought to set aside the orders made on 31 May 2018 and 23 August 2018 under r 16.05(2)(a) of the Rules. The hearing of that interlocutory application commenced on 23 March 2020 and was stood over part heard to today because the applicant said he had not received the first respondent’s court book or submissions.

12. At the commencement of the hearing today, the Court again explained to the applicant the nature of the hearing for relief under r 16.05(2) of the Rules. The applicant confirmed that he had received the first respondent’s court book and the submissions.

13. In explanation for the applicant’s failure to appear, he referred to his arrest shortly before the hearing and that he was not transferred to the immigration detention until the end of 2019. The applicant’s explanation for his failure to appear and the delay in the bringing of the proceedings is not entirely satisfactory.  The applicant’s explanations for the failure to appear are not entirely consistent, but the more important issue are the merits of his application for relief.  Given the applicant’s explanation, this is not a case where the Court would refuse to reinstate the proceedings because of the inordinate delay or unsatisfactory explanation alone.

14. The Application in a Case filed on 19 February 2020 identifies no ground of jurisdictional error, and the applicant referred to his want of literacy and said he did not assert that there was a mistake by the Authority.  The applicant referred to his age and medical condition and asked that he be allowed to remain in Australia.  The Court explained to the applicant that the Court could not decide whether there was an arguable case of jurisdictional error on compassionate or discretionary grounds.  The applicant made reference to the problem with his right eye, and it is apparent from the Authority’s reasons that the Authority referred to that incident.

15. The applicant’s reference to the problem with his right eye was not identified, of itself, as being a claim why the applicant feared harm upon return to Iran. On the face of the material before the Court, the Authority made dispositive findings that were open in relation to the applicant’s claims. 

16. There is no integer of the applicant’s claims that the Authority failed to consider. The reference to the applicant’s problem with his eyes does not identify any arguable case of jurisdictional error. The applicant also made reference to a people smuggler now being apprehended or in Australia. The applicant’s statement identifies a people smuggler taking his passport but advanced no other claim to fear harm because of the people smuggler. 

17. The subsequent events in relation to the people smuggler being apprehended or being in Australia is not material that was before the Authority and cannot give rise to any jurisdictional error. The applicant maintains that he had told the truth to the Authority.  The Authority accepted part of the applicant’s claims and gave logical and rational reasons for the adverse findings. The applicant’s submissions in that regard were, in substance, an invitation to merits review. 

18. This Court has no power to review the merits of the decision. The applicant otherwise asked the Court to determine the matter on compassionate or discretionary grounds.  The Court has no power to determine the matter on compassionate or discretionary grounds. Nothing advanced by the applicant identified any arguable case of jurisdictional error by the Authority.  The applicant’s affidavit dated 18 February 2020, refers to the decision involving an error of law.  Unparticularised, that is incapable of giving rise to any arguable jurisdictional error.

19. On the face of the Authority’s decision, it correctly identified the relevant law, and no arguable case of an error of law has been identified. The applicant’s affidavit also asserts the decision was made contrary to the requirements of natural justice and procedural fairness. Subject to the provisions of Part 7AA, the Authority is required to review the material without accepting or requesting new information and without interviewing the applicant.

20. Division 3 of Part 7AA of the Act, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule. Given the letter that the Authority wrote to the applicant permitting him to put on submissions and new information, there is no basis to find that the Authority’s decision is the subject of an arguable case of jurisdictional error in relation alleged to non-compliance with Part 7AA of the Act. The applicant’s affidavit also asserts there was insufficient evidence or no evidence to support the findings. Under s 5AAA of the Act, it is for the applicant to provide sufficient evidence to establish his claims. For the reasons already given, it was open to the Authority to make the adverse credibility findings. No arguable case of jurisdictional error is made out by any of the propositions in the applicant’s affidavit.

21. In all the circumstances, it is apparent that there is no arguable case of jurisdictional error by the Authority in the conduct of the review.

22. Accordingly, there would be no utility in reinstating the proceedings and the Application in a Case is dismissed.

I certify that the preceding nineteen (22) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 22 July 2024