CMK17 v Minister for Immigration

[2020] FCCA 1338

FEDERAL CIRCUIT COURT OF AUSTRALIA

CMK17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1338

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Protection (Class XA) (Subclass 785) visa – whether the Authority did not take into account relevant considerations – whether the Authority misapplied the relevant law by not inviting the applicant to comment – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36, 473CB, 473DC, 473DE, 476

Applicant: CMK17

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 300 of 2017

Judgment of: Judge Street

Hearing date: 26 May 2020

Date of Last Submission: 26 May 2020

Delivered at: Sydney

Delivered on: 9 June 2020

REPRESENTATION

The Applicant appeared in person via Microsoft Teams

Solicitors for the Respondents: Ms B Rayment via Microsoft Teams
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 300 of 2017

CMK17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

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”) made on 16 May 2017 under pt 7AA of the Act affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection (Class XA) (Subclass 785) visa (“Protection visa”).

2. The applicant was found to be a citizen of Iran and his claims were assessed against that country. The applicant arrived in Australia in March 2013 as an unauthorised maritime arrival.

3. On 14 May 2016, the applicant applied for a Protection visa. In summary, the applicant claimed to fear harm because of a complaint made by him against two military police officers after they assaulted him and in respect of which he brought a complaint and received compensation. The applicant also claimed to fear harm by reason of having converted to Christianity from his former Muslim faith.

4. On 3 November 2016, the Delegate found that the applicant failed to meet the criteria for the grant of a Protection visa.

5. On 9 November 2016, the Authority wrote to the applicant explaining that his application for a Protection visa had been referred to the Authority for review. The letter attached a fact sheet and practice direction providing the applicant an opportunity to put on submissions and new information. No such material was provided to the Authority.

6. The Authority, in its reasons, identified the background to the Protection visa application. The Authority had regard to the material referred by the Secretary under s 473CB of the Act. The Authority summarised the applicant’s claims.

7. The Authority identified that the applicant’s conflict with the police was one which also damaged his ear. The Authority was satisfied that the applicant was stopped and beaten by two plain clothes police officers following his request that they show him their ID. The Authority was satisfied that the applicant took the matter to the courts with the help of his father and was able to receive compensation. The Authority was satisfied that, prior to the court case being finalised, the applicant was pressured by the two military police to withdraw his complaint. The Authority identified, however, that the applicant withstood the pressure and pursued the court matter to the end and received compensation.

8. The applicant claimed that the military police continued to harass him. The Authority was not satisfied that the military police continued to threaten the applicant after the matter was finalised before the courts.

9. The Authority provided three reasons in that regard. First, the Authority referred to the applicant’s vague evidence in relation to the police and the threats. Secondly, the Authority referred to the implausibility of the police putting their jobs at further risk after the applicant had successfully pursued the complaint and could do so again. Thirdly, the Authority identified that, despite the claimed threats, they were not acted upon in the period of four months during which the applicant remained in Iran.

10. Accordingly, the Authority did not accept that the police wanted to take revenge as claimed. The Authority found that the applicant would not be of continued interest to the two military police or the Iranian police in general because of the incident and his court action.

11. The Authority referred to the applicant’s claim of conversion to Christianity. The Authority noted that the Delegate raised with the applicant concern as to whether he was a genuine Christian and the reasons the applicant gave as to why he wanted to change. The Authority also identified the evidence adduced in respect of the applicant’s alleged baptism in 2013 and that, after three months following his baptism, he had not further attended the church.

12. The Authority referred to the Delegate writing to the applicant on 26 July 2016 putting forward the information in relation to his failure to attend church and that no response was received from the applicant.

13. The Authority found that the applicant’s attendance at the church and baptism were for the sole purpose of strengthening his claims for protection. The Authority, pursuant to s 5J(6) of the Act, disregarded that conduct in relation to his claims in relation to his conversion to Christianity.

14. The Authority was not satisfied that the applicant had a well-founded fear of persecution on the basis of the incident, complaint and compensation pursued in respect of the two military police.

15. The Authority accepted that the applicant may be questioned on return to Iran for a brief period. The Authority was not satisfied that this treatment of being questioned and detained briefly would amount to serious harm. The Authority found that the applicant did not have a well-founded fear of persecution on this basis.

16. The Authority found that the applicant did not meet the requirements of the definition of “refugee” in section 5H(1) of the Act. The Authority found that the applicant did not meet the criteria in s 36(2)(a) of the Act.

17. The Authority turned to the issue of complimentary protection. The Authority further considered the applicant’s baptism. The Authority was satisfied that the applicant does not face a real risk of significant harm in Iran as a result of his activities in Australia.

18. The Authority found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Iran from Australia, there is a real risk the applicant will suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act.

19. Accordingly, the Authority affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 8 June 2017.

2. On 9 August 2017, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

3. From the bar table, the applicant maintained that his claims of fear from threats made by the police were true and correct. The applicant accepted in the course of his submissions that he was not Christian but maintained that he now no longer had any religion. The applicant also referred to having a new partner and wanting to stay in Australia. The applicant also referred to his brothers going to Germany, but this was not a matter that was raised with the Authority on the face of the material before the Court. The applicant’s submissions from the bar table, in substance, invited the Court to engage in an impermissible merits review.

4. Nothing said by the applicant from the bar table identified any jurisdictional error.

Grounds in the Application

1. The grounds in the application are as follows:

   1. The assessor failed to properly consider all of my claims.

   2. The assessor didn’t give me a chance to comment on one aspect of my claim.

Ground 1

1. In relation to ground 1, it is apparent that the Authority from the reasons, as summarised above, had a real and genuine engagement with the applicant’s claims and there is no integer of the applicant’s claims that has been identified that was not considered by the Authority. The Authority made dispositive findings that were open to the Authority for the reasons given by the Authority. Those reasons cannot be said to lack an evident and intelligible justification. This includes the three logical reasons concerning the military police, as summarised above, and the want of plausible reasons and timing as to the alleged conversion to Christianity together with the sole purpose of the activities. The Authority considered the activity in Australia and made an adverse finding that was open in relation to complementary protection. On the face of the Authority’s reasons, the applicant’s claims and evidence were correctly assessed by the Authority against the relevant criteria.

2. Accordingly, no jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the applicant was sent an invitation to put on submissions and new information by the Authority and provided no information. The nature of the review under pt 7AA of the Act is one pursuant to which, subject to the provisions of the part, the Authority must review the decision by considering the review material without accepting or requesting new information and without interviewing the referred applicant.

2. There is no new issue of the kind identified that required the Authority to expressly consider exercise of the Authority’s powers under s 473DC of the Act and no new information of the kind engaging in the obligation under s 473DE of the Act. In these circumstances, the applicant’s complaint as to not having been invited to comment does not give rise to any relevant error by the Authority in the conduct of the review.

3. No jurisdictional error arises by reason of ground 2.

4. As nothing said by the applicant identifies any jurisdictional error and as the grounds of the application fail to make out any jurisdictional error, the application is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 9 June 2020