Cix17 v Minister for Immigration

[2018] FCCA 3799

FEDERAL CIRCUIT COURT OF AUSTRALIA

CIX17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3799

Catchwords:
MIGRATION – Application for judicial review – Immigration Assessment Authority – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.46A, 473DC.

Applicant: CIX17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1155 of 2017

Judgment of: Judge Riethmuller

Hearing date: 19 September 2018

Date of Last Submission: 19 September 2018

Delivered at: Melbourne

Delivered on: 19 December 2018

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1155 of 2017

CIX17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Immigration Assessment Authority (‘the IAA’) dated 15 May 2017 which affirmed the decision of a delegate to the Minister not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant is from Iran and says that he fears harm on the basis of his religious beliefs and political opinion. The applicant fled from Iran to Australia in August 2012. The applicant lodged his Safe Haven visa application on 9 March 2016 after the s.46A ban was lifted on 4 December 2015. The delegate refused to grant the visa on 10 October 2016. That decision was affirmed by the decision of the IAA on 15 May 2017. The applicant required the assistance of a Persian interpreter at the hearing.

The applicant’s claims

1. The applicant’s claims are summarised at [6] of the IAA’s decision.  Broadly, the applicant claimed to fear harm from the following incidents:

   a)In 2007-2008, he was stopped on at least two occasions by the Basij and told he was ‘dressed incorrectly, his haircut was wrong and he was anti-Islamic’;

   b)In 2009-2010, he was involved in political protests on three to four occasions.  On the last occasion he was arrested by authorities and ‘interrogated, bashed, tortured and whipped...with wire’;

   c)In 2012, he became interested in Christianity and attended a house church with his cousin.  One month later his cousin was arrested and his house was raided.  The authorities found ‘a Bible and Christian pamphlets in his room’; and

   d)The applicant ‘fears that the Iranian authorities will arrest, detain, torture and execute him if he returns to Iran’.

The IAA’s findings

1. The IAA accepted the applicant’s claims of the incidents with the Basij that occurred in 2007-2008: see [10]. Further, the IAA accepted that the applicant attended three to four protests in 2009 and 2010: see [16]. It further accepted (at [16]), that on the last occasion the applicant was ‘arrested, questioned, interrogated, tortured and physically harmed as claimed’.

2. Although, the IAA was satisfied that the applicant’s involvement in the protests were of ‘an ordinary low-level protester’ (at [17]), the IAA states at [18]:

   18. Having regard to all the information, including the applicant’s accepted profile and his particular circumstances, I am not satisfied that the applicant is of ongoing interest to the Basij, the Sepah, the intelligence services or other authorities, or that he will face a real chance of harm for reasons relating to his involvement in the protests, the arrest, the detention, or his actual or perceived political opinion or association with other protesters or organisations, now or in the reasonably foreseeable future.

3. Nor did the IAA accept that the applicant feared harm from his brother-in-law.  On this topic, the IAA considered (at [21]):

   21. Even if I am to accept that his brother-in-law worked for the Sepah, there is no credible evidence to suggest that his brother-in-law intended to arrest or otherwise harm the applicant for reasons of his previous protests, arrest or detention. I consider that if his brother-in-law wished to arrest or harm him, he would not have acted as his guarantor and helped him escape detention. I also consider that if his brother-in-law has any desire to arrest or harm the applicant, he would have done so in the over two and a half year period after the applicant was released and before he left Iran.

4. At [22], the IAA says the applicant first claimed to fear harm as a result of his Christianity ‘in the written statement of March 2016’. The IAA noted these as ‘significant claims’ (at [23]) which were ‘raised for the first time’ in March 2016: see [24].

5. The IAA considered at [30]:

   30. In my view, if the applicant was identified through a house church raid or that he was followed after such raid, which are not insignificant claims, he would have at least briefly mentioned them in the written statement or at the SHEV interview when his Christianity related claims were discussed. The written statement set out the applicant’s claims in considerable detail. The applicant was assisted by a registered migration agent in making the SHEV application and at the SHEV interview. There was no evidence to suggest that there was any interpretation issue or misunderstandings regarding this aspect of the applicant’s evidence that could satisfactorily explain the significant omission. No medical evidence has been provided, and I am not satisfied that the omission could satisfactorily be explained his conditions.

6. The IAA concluded on the topic at [36] to [38], saying:

   36. Having regard to the evidence, I do not accept the post-interview submission that the applicant sincerely believes in Christianity and Jesus, that he has a strong interest in Christianity or that he would probably convert in the foreseeable future…

   37… I find that the applicant was and is of no interest to the authorities for reasons of his claimed actual or perceived church attendance, Christian activities, association, connection or views. I consider that the applicant manufactured these claims in an attempt to create a profile for his protection application. I find that the applicant will not face a real chance of arrest, imprisonment or harm on these bases now or in the reasonably foreseeable future.

   38. I have not accepted that the applicant has any genuine interest or commitment in Christianity. I find that upon return, he would not attend church or otherwise involve in any Christian activities not due to fear of harm but because he lacks interest or commitment to do so and because he will honour his promise to his mother.

7. The IAA considered that the applicant used a fake passport to flee Iran ‘because he was afraid of being banned or on a list of not being able to exit Iran’: see [42].

8. The IAA concluded, at [43]:

   43.  The applicant has provided consistent evidence throughout the visa application process that he used a fake passport in another name to depart Iran.  However, I have not accepted that the claimed incidents in 2012 occurred or that he left Iran for the reasons claimed. I consider that he was of no interest to the authorities at the time when he left Iran. Having regard to all the information before me, I am not satisfied that the applicant left Iran illegally on a false passport, or he was banned from travelling or on a list of persons not being able to exit Iran.

9. The IAA was not satisfied ‘that the applicant has a well-founded fear of persecution’: see [46].

10. The IAA considered the applicant’s complementary protection grounds. The IAA rejected the applicant’s claims that he is of interest to ‘the Basij, the Sepha, the intelligence service, other Iranian authorities, his brother-in-law’: see [51]. Further, the IAA found ‘that upon return, the applicant would not express his views, beliefs or political opinion not due to fear of harm but because he has no desire, interest or commitment in doing so’: see [52].

11. The IAA concluded (at [53]) saying:

    53.  I have found above that the applicant will not face any real chance of harm for reasons relating to his past protests, arrest, detention or encounters with the authorities. I have found that he will not face a real chance of harm on the bases of his encounters with the Basij in 2007 or 2008 or his clothing, demeanour or appearance. I have also found that there is no real chance that the authorities or anyone would make any accusations against him for any reasons, perceive him as a spy or impute him with anti-government, regime or Islam views. I have not accepted that he will face a real chance of harm from the Basij, the Sepah, the intelligence service or other Iranian authorities, his brother-in-law or anyone on the bases of his real or perceived views, beliefs or opinion, or because he lacks belief in Islam, that he has no religion but believed in God or for not practising or conforming to Islamic practices or ideologies. I have found that the applicant will not face a real chance of harm from his brother-in-law for any reason or that his brother-in-law will use him as a scapegoat. I have also found that the applicant will not face a real chance of harm on the bases of being forced to pray, forced to fast during Ramadan, read Quran or learn about Islamic ideologies, and that he will not face a real chance of harm by reason of his actual or imputed involvement, association, or connection with Christianity or Christians. Further, I have found that the applicant faces no real chance of harm as a failed asylum seeker returnee who lived in Australia

12. The IAA concluded (at [57]) by finding the applicant did not satisfy any complimentary protection provisions.

Grounds of application

1. Despite an order made by Registrar Luxton on 20 December 2017 for the filing of further material, the applicant filed no amended application nor written argument and simply relies on his application filed 1 June 2017.

2. The applicant relies upon the following grounds of application:

   1. The [IAA] denied the Applicant procedural fairness in its failure to alert the applicant to new issues arising before the [IAA] of which the applicant was not previously aware, and in the alternative the [IAA] denied procedural fairness because the [IAA’s] reasoning departed from the Department's reasoning, resulting in in a practical injustice to the Applicant.

   2. The [IAA] constructively failed to review the decision of the delegate, and failed to conduct a review as required under section 473CC(l) of the Act, by failing to inform the applicant of issues arising on review, and failing to consider its discretion under section 473DC to get new information from the applicant.

   3. I have made an application for assistance through Victoria Legal Aid and am waiting for a decision.

Grounds 1 & 2

1. The first two grounds of the application complain that the IAA dealt with the matter on the basis of new issues arising before the IAA, of which the applicant was not previously aware.  The applicant claimed that he ought to have been informed of these issues and that the IAA ought to have considered exercising its discretion to obtain new information.

2. At the hearing before me, the applicant explained that this related to his claims to have become a Christian. The applicant said that he did not disclose this at his first interview when arriving in Australia as he was scared that it would leak out, but that he would like to disclose it now. The IAA clearly identifies that these matters were not claimed at the original SHEV interview (at [25]), and that they are significant claims: see [23].

3. The IAA considers these matters in detail at [25] to [36] of the decision.  There is clearly a central issue that the IAA had regard to and analysed in some detail. 

4. This was not a new issue before the IAA, as it was considered by the delegate on the ninth page of the delegate’s decision: see Court Book p.125 noting the delegate’s decision is without page numbers or paragraph numbers)  On that page the delegate says:

   The Applicant submitted that his house was raided and searched by Iranian authorities after he departed Iran, and that the authorities located Christian pamphlets and a Bible at his house.  The Applicant submitted that he obtained the pamphlets and Bible through attending house church prayer submissions in Karaj 3-4 times, following encouragement from his cousin [S].  I do not accept this claim.  I note that many times Iranians are ‘non-strict’ or non-observant Shia Muslims.  The Applicant indicated that his family were non-strict in their religious observance, and they had never previously come to the attention of the Iranian authorities for reasons of religious non-observance.  The Applicant stated in Australia he had not pursued any religion.  This indicates to me that the Applicant was not ‘religious’, and in his Application, he had never previously expressed a religious interest in his time in Iran or Australia.  On this basis, I assess it was therefore not plausible that the Applicant would have seriously investigated Christianity in the months before he departed Iran in 2012, knowing the potential risks involved.  I note the Applicant decided not to participate in political demonstrations during 2010, after making an undertaking to the government not to do anything further after he was arrested and released in 2009.  I do not accept the Applicant faces a real chance of being prosecuted, seriously harmed or killed on account of his actual or imputed religious affiliation towards Christianity in Iran, or being an apostate Muslim.

5. As a result, it is clear that this was not a new issue that arose before the IAA. It is also clear that the applicant would have been well aware of this issue from the terms of the decision of the delegate. There is nothing in the material to show that the IAA ought to have considered exercising its discretion under s.473DC of the Migration Act 1958, nor that it failed to do so. 

6. In the circumstance of this case I’m not persuaded that the applicant has made out either ground 1 or ground 2.

Ground 3

1. Ground 3 alleges that the applicant has made an application for assistance from Victoria Legal Aid.  This appears to be the ground seeking an adjournment of the application.  The application in this case was filed on 31 May 2017.  The hearing did not take place until September 2018.  The applicant has had more than adequate time to pursue his legal aid application, and any appeal he may have wished to lodge with Legal Aid Victoria against a refusal to grant him legal aid.  In addition, the applicant has had more than adequate time to seek out alternative legal representation should he have wished to seek assistance from a community legal service, or if he had sufficient funds to obtain a private legal representation. 

2. I am not persuaded that these matters amount to a proper basis for an adjournment of the application, nor a ground for judicial review.

3. In the circumstances the application should be dismissed. 

Costs

1. I heard argument as to the costs of the matter.  The applicant’s costs were nil as he was not represented, and the first respondent sought costs in the sum of $7,467.00, being the scale fee.  At the delivery of judgment,

   
   

   Mr Orchard on behalf of the first respondent, sought revised costs of $5,500.00.

2. The amount sought by the first respondent is less than the scale fee.  I am satisfied that the amount sought is a reasonable amount in this case.  Costs ordinarily follow the event, and there is no reason to depart from this principle in these proceedings.  The applicant should pay the first respondent’s costs.

3. The applicant sought arrangements to pay by way of instalments.  Ordinarily, the solicitors for the Minister negotiate such arrangements without requiring the Court to hear evidence and make orders.  If the applicant is not able to negotiate a reasonable arrangement with the solicitors for the Minister, the applicant may bring an application for an order for the payment of the costs to be by the way of instalments.  At this stage I do not propose to make such an order. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 19 December 2018