Coa18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 2037

FEDERAL CIRCUIT COURT OF AUSTRALIA

COA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2037

File number:	ADG 186 of 2018
Judgment of:	JUDGE YOUNG
Date of judgment:	13 August 2021
Catchwords:	MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority to affirm a decision of the Minister’s delegate to refuse to grant a Temporary Protection (Subclass 785) visa – no jurisdictional error made out – application dismissed.
Legislation:	Migration Act 1958 (Cth) s 473DD
Number of paragraphs:	17
Date of hearing:	13 August 2021
Place:	Darwin
The Applicant:	Appearing on his own behalf
Solicitor for the First Respondent:	Mr Cummings of Sparke Helmore

ORDERS

ADG 186 of 2018

BETWEEN:

COA18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	13 AUGUST 2021

THE COURT ORDERS THAT:

1.The Application filed on 16 May 2018 is dismissed.

2.The Applicant is to pay the First Respondent’s costs in the fixed sum of $6,500.

3.The First Respondent’s name be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is an application for judicial review of a decision of the Immigration Assessment Authority (the Authority) to affirm a decision of the Minister’s delegate (the delegate) made on 4 August 2017 to refuse the applicant a Temporary Protection (Subclass 785) visa (the visa). 

2. The application for judicial review filed on 16 May 2018 simply states that the ground of application is:

   The IAA made jurisdictional error in its determination of my case. 

   There are no other particulars provided. The applicant did not raise any recognised ground of jurisdictional error.

3. In terms that might be suitable for an explanation through a Farsi interpreter, I attempted to explain to the applicant the role of this Court in hearing an application for judicial review. 

4. The applicant told me that despite the decision having been made on 4 May 2018, he had neither read the decision of the Authority nor had he arranged for the decision to be interpreted to him in the appropriate language, being Farsi, as is apparent from his communications with the Farsi interpreter at this hearing. 

5. In the applicant’s submissions he referred to some earlier point in time where the Arabic interpreter who had been provided to assist him was not from his region and therefore the Arabic interpreter made mistakes.  That does not appear to be relevant to any matter considered by the Authority. 

6. The applicant also raised some other points about what may have happened to other people in these processes under the Act. None of those matters were relevant or germane, in my assessment.

7. The inability of the applicant to outline any recognised ground of judicial review is, in itself, a ground for dismissing the application.  However, as the Federal Court of Australia has made clear, in the case of an unrepresented applicant every opportunity should be given to the applicant to provide an explanation of their complaint about the decision.  I believe I have afforded the applicant that opportunity. In my view, there was not much more assistance provided to me in understanding what he said may have been an error.  I am satisfied that the applicant has been unable to point to any error in the decision. 

8. I have also read the decision and am unable to see anything that might be put forward as a jurisdictional error. I will summarise briefly the reasoning of the Authority. The Authority begins its reasons by explaining that the applicant sought to have it consider new information under section 473DD of the Migration Act 1958 (Cth). In particular, the applicant alleged that in 2005 he was involved in protests which the Authority recognised were widespread and serious protests in Iran associated with the Ahwazi Arabs who are an ethic minority in Iran. The applicant is a member of that ethnic group.

9. The Authority pointed out that in the applicant's earlier statements to the Minister in 2013 and 2016, an interpreter was provided. However, it is unclear from the reasons of the Authority what language the interpreter spoke. The applicant was also assisted by a lawyer and a migration agent.  In that statement in 2016 the applicant referred to matters about the applicant's uncle's political activities and arrest in 1998. These were accepted by the Authority. 

10. The Authority pointed out that the incident that the applicant alleged he was involved in in 2005 – widespread civil disturbances in Iran where the applicant was apparently arrested and beaten – were not mentioned in the earlier statements. The Authority took the view that this information should not be considered, pursuant to section 473DD of the Act, because the information could have been given to the Minister before the decision was made and the prior inconsistent statements were not credible. A similar approach was taken to a document that the applicant sought to rely on – a letter from 2005 which he said was a form of summons from the police for him to attend. The Authority was not satisfied that that letter was authentic and, therefore, refused to consider it.

11. The applicant's protection claims were, in summary, that he was an Ahwazi Arab of Shia faith from the Khuzestan province of Iran.  He said that his father and his uncle had been involved in the Ahwazi Arab political and social movement.  He said that in 1998 his uncle died in a car accident searching for the applicant's father and the applicant was then taken by the authorities and held in detention, mistreated and beaten.  He said that his father was subsequently arrested and tortured by the Iranian authorities.  He says that his family were wanted by the Iranian authorities or secret police.  He said that he was subject to discrimination as an Ahwazi Arab in employment and was unable to find work. He said he left Iran in 2012 using his own passport, apparently via Dubai and Indonesia.  He said that his family continues to be subject to surveillance by the authorities in Iran.  He said that he fears spies in Australia who report to the Iranian government.  He fears that he is likely to be hung by the Iranian authorities should he return and as an Ahwazi Arab he is, in effect, likely to be imputed with political opinions hostile to the government.  He says he is opposed to the Iranian regime and that he believes that he will be labelled as a political activist and sentenced to a long period of imprisonment or some other harsh treatment. 

12. In the Authority's consideration of these claims, the Authority accepted that in Iran Ahwazi Arabs face discrimination, including cultural restrictions and are an impoverished social or ethnic group.  It accepted that teaching in Arabic is prohibited but noted that the applicant is literate in Arabic.  The Authority also noted that the applicant's brother holds an engineering degree.  The Authority accepted that there was employment discrimination in Iran but also found that there was very high unemployment in any event.  The Authority did not accept that this would amount to serious harm to the applicant or that cultural discrimination, for example, traditional dress being prohibited, would amount to serious harm. 

13. The Authority noted that the applicant had been employed for a considerable period installing satellite dishes in Iran and accepted that the installation of satellite dishes was illegal, although, apparently, hundreds of thousands or possibly millions of people had them.  It said that that was a law of general application in any event.  The Authority accepted the applicant's claims about his uncle but it did not accept, as the applicant asserted, that his uncle had been murdered by the regime in a staged car accident. The Authority said that was speculative. 

14. The Authority also accepted that the applicant had been detained and mistreated in 1998. However, the Authority concluded that as the applicant had lived and worked for 13 or 14 years in Iran after 1998 before he left in 2012, it did not accept that the authorities had any adverse interest in him. It did not accept that the authorities visited his family home after he departed for Australia.

15. The Authority did not accept that the applicant was likely to express his opinions publicly in Iran and was satisfied that he had a relatively low level of political interest. Therefore, the Authority considered the regime was not likely to express any particular interest in him. 

16. For all those reasons mentioned above, the Authority was not satisfied that Australia owed protection obligations to the applicant as a refugee, nor that he would be subject to a serious risk of significant harm should he be returned to Iran and, therefore, the complementary protection provisions did not apply.  It also observed that Iran did not accept involuntary returnees, to the extent that that was relevant. 

17. I am not able to identify any error in the Authority's reasoning.  The application will be dismissed.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       27 August 2021