CQG18 v Minister for Home Affairs
[2021] FCCA 1449
•28 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
CQG18 v Minister for Home Affairs [2021] FCCA 1449
File number(s): MLG 809 of 2019 Judgment of: JUDGE RIETHMULLER Date of judgment: 28 June 2021 Catchwords: MIGRATION – application for extension of time – protection visa – application dismissed Legislation: Federal Circuit Court Rules 2001
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: DHX17v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127
DZAAE v Minister for Immigration & Anor [2012] FMCA 752
Number of paragraphs: 44 Date of last submissions: 17 March 2021 Date of hearing: 17 March 2021 Place: Melbourne The Applicant: Appeared in person Solicitor for the Respondent: The Australian Government Solicitor ORDERS
MLG 809 of 2019 BETWEEN: CQG18
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ORDER MADE BY:
JUDGE RIETHMULLER
DATE OF ORDER:
28 JUNE 2021
THE COURT ORDERS THAT:
1.The application filed on 22 May 2018 be dismissed.
2.The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $7,467.00.
REASONS FOR JUDGMENT
JUDGE RIETHMULLER
The applicant in this matter seeks an extension of time to bring a judicial review application with respect to a decision of a Protection Obligations Evaluation Officer’s findings, dated 2 June 2015, made regarding an application for a protection visa. The application is approximately 34 months out of time.
The applicant was unrepresented at the hearing before me and made submissions by way of video link from Yongah Hill Detention Centre, with the assistance of a Kurdish interpreter. The applicant says that he has been in detention since he arrived in Australia in 2010.
BACKGROUND
The applicant is 33 years old. He was born in Iran and he is a Faili Kurd and Shi’a Muslim. He arrived in Australia on 1 April 2010, after using the services of an Indonesian people smuggler. The applicant took part in an entry interview on 27 April 2010 and applied for a protection visa at that time.
On 2 August 2010, a delegate for the Minister found the applicant was not entitled to a protection visa (see page 89 of the Court Book (‘CB’)). The applicant sought review of that decision before the then Independent Merits Review panel (‘IMR panel’). The applicant appeared before the IMR panel on 22 November 2010, with the assistance of a migration agent. On 16 February 2011, the IMR panel affirmed the decision of the delegate.
The applicant sought judicial review of the IMR decision before the (then) Federal Magistrates Court on 23 June 2011. For the reasons set out in DZAAE v Minister for lmmigration & Anor [2012] FMCA 752, Lucev FM (as his Honour then was) found that the decision of the IMR panel was not made according to law.
The applicant was notified in July 2013 that his claim would be reassessed by a Protection Obligations Evaluation (‘POE’) officer. The applicant provided submissions with the support of a migration agent on 30 July 2013. The migration agent indicated that the applicant’s mental and emotional state at that time meant the material provided was not based on updated instructions from the applicant.
After many administrative exchanges and adjournments, the POE officer completed the assessment of the applicant’s protection claims on 25 June 2015, concluding that he was not owed protection in Australia: see reasons of the POE at Court Book (‘CB’) 309.
An application for an extension of time to seek judicial review of the POE officer’s reassessment of his protection claims was filed by the applicant in the Federal Court of Australia on 21 May 2018, some 34 months out of time. The matter was then transferred to this Court on 5 December 2018.
APPLICATION FOR AN EXTENSION FOR TIME
In determining whether the applicant should be granted an extension of time to bring his application, the court must consider the reasons for any delay, whether the applicant has an arguable case, and any prejudice to the parties.
Reasons for Delay
The applicant says that he has suffered depression, anxiety and mental health issues since 2015. He also points out that he has been in detention, has not had legal representation or family assistance, and is unable to speak English.
The applicant sets out in his Application filed on 22 May 2018 that:
I am in Christmas Island Immigration Detention Centre since 2010, in 31 Oct 2012 I appeared with the Federal Court of Australia in Darwin for migration decision on protection visa application regarding judicial review. I was successful with the Federal Court and the case was remitted back to Immigration Merits Review (IMR) which the penal reviewed my migration decision on 25 Jun 2015 which was an negative decision. I would like to request the Federal Court to review the decision that was made by Federal Court.
In the past years I was suffering from depression and anxiety and ongoing mental health issues since 2015 I could not do my paperwork in time since I am in Immigration Detention Centre and lack of access to legal representation. I have been instructed by Immigration Department to request federal Court to review my decision which was made on 2012 and remit the decision back to IMR to reconsider their decision according to law .
The reasons the applicant sets out would explain considerable delay, however, I am not persuaded that the reasons the applicant provides for the delay adequately explain a delay of 34 months before bringing an application. However, given his circumstances, the more significant question is whether he has an arguable case.
The Applicant’s Grounds
In determining an application for an extension for time, the Full Court, in DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127 (‘DHX17’) said that:
76.…an applicant would not normally be required to demonstrate more than their proposed grounds of review had some prospects success following "a threshold assessment of merit". Whether that standard of veracity is described as being "arguable", "reasonably arguable", "sufficiently arguable" or having "reasonable prospects of success" or some other description, the hurdle is low. If, then, a court seeks to assess the merits of the proposed grounds of review against a standard of whether they would ultimately succeed on the hearing of the application, the conclusion will usually be drawn that it has misconceived its function and or power.
The nature of the applicant’s claims
The applicant claims for protection are conveniently summarised at paragraph [27] of the Minister’s written submissions, as follows:
1) his Faili Kurd ethnicity;
2) an imputed Iraqi nationality and anti-Iranian political perspective;
3) an imputed Kurdish separatist political perspective that was also anti-Iranian;
4)an imputed Sunni Muslim religious belief, given that the majority of Kurds were Sunnis; and
5)membership of the particular social groups of returnee from the West, failed asylum seeker, and Faili Kurd who had departed from Iran using false documents (see CB 336).
The applicants original claims for protection are set out at CB328:
•He is an undocumented and stateless Faili Kurd from Iran. His religion is Shia Islam.
•His parents were born in Baghdad, Iraq. They travelled to Iran in 1980 and settled in Ilam province.
•He did not possess any Iranian documents. His parents may have held green cards in the past however any such documents have since been confiscated by the Iranian authorities.
•His parents unsuccessfully applied for Iraqi nationality, and did not apply again after2003.
•He is not educated and received no formal schooling. However he learned to read and write a little.
•Between 2006 and 2008 his family moved to Shah-e-Rey.
•In 2008 his brother was working illegally on a construction site. One day he fell from the second storey and passed away that evening.
•His family was unable to bury his brother in a cemetery as this required documentation. They had to drive to Honagah and bury him outside the village.
•In 2009 he was at a Friday market with his mother and sister. Some basij officers approached him, asked him what his relationship with his mother and sister and asked for his identification documents.
•When he could not present an identity document he was beaten in front of his mother and sister. The basij took him away and demanded money from him before releasing him.
•When travelling to work he would avoid the basij by going through lanes. Whenever he was caught he had to pay money to the basij and this happened several times.
•He did not have any rights and was treated as a foreigner and an enemy of Iran.
•The Iranian authorities, and other persons, perceived him to be an Iraqi national.
•As he did not have any identity documents he could not work legally, access schooling, health facilities, open a bank account, have insurance, register marriages or have freedom of movement.
The POE set out the following summary of findings in their reasons (at CB329):
In summary I accept:
•The claimant is an ethnic Faili Kurd
•The claimant has been subjected to harassment in Shah-e-Rey
•The claimant has been forced to pay bribes to the basij
•The claimant has a brother who died from a workplace accident before his departure
In summary I do not accept:
•The claimant is stateless
•The claimant is undocumented
•The claimant was beaten in front of his mother in 2009 or detained afterwards
•The claimant has otherwise been beaten or physically mistreated
•The claimant’s family could not bury his brother in shah-e-Rey because they are undocumented
With respect to the applicant’s Faili Kurd ethnicity claim, the POE considered the applicant's identity (see CB310-312), concluding that:
The claimant has consistently maintained that he had never held a genuine Iranian document in his name. He submits that he is an undocumented stateless Faili Kurd. As such he has not provided any documents to support his claimed identity […] At this moment in time there is no biometric data to support the claimant’s claimed identity.
As summarised above, the claimant has been internally inconsistent with regard to what documents his parents held in Iran.
…
I am satisfied that the claimant has not been truthful with regard to the documents that he and his parents possessed in Iran. This is supported by his personal circumstances, country information and his inconsistent statements to the Department
The POE made a number of findings that indicated that the applicant was not a stateless person, such as:
(1)that ‘the claimant’s ability to depart Iran by air from Tehran most likely indicates that he possessed a genuine Iranian passport and that he is an Iranian citizen’: see reasons of the POE at CB316.
(2)‘The claimant has not provided a reasonable explanation as to how he saved or otherwise obtained a significant amount of money as an undocumented stateless person in Shah-e-Rey. The issue of finances indicates that the claimant and his family were able to earn or otherwise generate far more money than he has claimed. This indicates that the claimant and his family were not undocumented stateless persons’: see reasons of the POE at CB314.
With respect to the applicant’s claims of specific harm, the POE found (at CB331 and 334-335):
…
I do not discount that the claimant could have been approached or harassed by the basij in Iran and I will consider his other claims of harassment and harm below. With regard to this particular claimed incident in 2009, being the one that the claimant provided the most information and detail, I do not accept that he was seriously beaten, detained and extorted on account of his lack of documentation or perceived Iraqi nationality.
...
I am not satisfied that the claimant has been detained or subjected to serious mistreatment as he has claimed. I am satisfied that the claimant is an Iranian citizen and he has not satisfied me that he had a profile in Shah-e-Rey that would make him a person of particular interest to the authorities. I am satisfied that he embellished any harassment he faced and fabricated incidents of being assaulted with weapons.
…
I note that the claimant is a Shia Muslim and I have found him to be a citizen of Iran. As such I find it unlikely that his family would be unable to bury their son in accordance with Shia tradition. I do not accept that the claimant’s family was unable to bury his brother on account of a lack of relevant documentation.
The POE found, with respect to the statelessness claim that (at C329):
…
In the Identity assessment above, I have outlined my reasons for not accepting that the claimant is stateless. I am satisfied that he is an Iranian citizen. It follows that I do not accept that he is undocumented, was denied an education, healthcare, right to marriage, freedom of movement, insurance or any other claimed discrimination in connection to being stateless.
…
This was contrary to previous findings as noted by the POE officer (at CB324):
…
I note that both the PV delegate (2010) and the IMR reviewer (2011) accepted that the claimant was stateless. I note that since these findings were made, a detailed report on Faili Kurds was published by DFAT. I note that the claimant was subsequently interviewed in 2014 and 2015 and that in these interviews matters relating to his claimed stateless were discussed in detail. I have outlined these maters above. In summary, I am satisfied that the new information available to me, in the form of country information and the claimant’s responses at the 2014 and 2015 POE interviews, support a finding that the claimant is not stateless.
With respect to the claims of fear of persecution, the POE found (at CB341-342):
…
The available country information does not indicate that the Iranian authorities inflict punishment or harm on Iranian citizens on the basis of any perceived Iraq nationality. I am also not satisfied that country information indicates that members of the general public inflict such harm for this same reason. Whilst it is possible that certain individuals within the Iranian authorities may view the claimant with suspicion, harass him, question him or pressure him to pay bribes, I am not satisfied that this would amount to serious harm in a Convention sense.
I have considered whether there is a real chance that the claimant will suffer serious harm in the reasonably foreseeable future, on account of his imputed Iraqi nationality. I am satisfied that the possibility of the claimant suffering such harm in the reasonably foreseeable future, for these reasons, is remote and is not well-founded.
…
In summary I am not satisfied that there is a real chance the claimant will be harmed on account of an imputed religious belief and that any feared harm for this reason is not objectively well-founded.
GROUNDS FOR JUDICIAL REVIEW
Six ‘generic’ grounds of judicial review would be pursued in the proceedings, however, no particulars are detailed. At the hearing I asked the applicant to outline what he meant by each of the proposed grounds.
Proposed grounds 1 and 2
The first two proposed grounds simply identify the decisions that the applicant seeks to review, as follows:
1.The first respondent's decision made on 25 June 2015 to be quashed.
2.The second respondent's decision on 31 October 2012 to be quashed.
As a result of Judge Lucev’s orders in DZAAE v Minister for lmmigration & Anor [2012] FMCA 752 (‘DZAAE’), there is no longer any issue with respect to the 2012 decision. The relevant decision is now the one made in 2015. These proposed grounds do not identify any arguable case.
Proposed ground 3
The third proposed ground says:
3. The respondent's decision was unreasonable.
The applicant said at the hearing in this court that he had problems in Iran and therefore cannot go back to his home country. He claimed that he left unlawfully and that nobody can guarantee his safety if he returns to Iran. He also said he did not have a good life in Iran, and had had a lot of dealings with the authorities, which is why he came to Australia.
Nothing that the applicant raised indicated an arguable case with respect to this ground.
Proposed ground 4
The fourth proposed ground is that:
4. The respondent's decision involved an error of law.
At the hearing the applicant argued that in 2011 he was successful in the Federal Court of Australia, and that therefore, the decision maker should have allowed his application. The decision he refers to must be that of Judge Lucev in DZAAE, as there is not another judgment related to the applicant in the CB.
In DZAAE, the Court found that, ‘The IMR did not engage with the applicant’s claim based on his imputed or perceived Iraqi nationality.’ The Court did not make any finding that this claim should be accepted: rather a declaration was made that the IMR decision was not made according to law, and the matter returned for a further decision.
The applicant has not raised an arguable case with respect to this ground.
Proposed ground 5
The fifth proposed ground is that:
5. The respondent took into account irrelevant consideration.
The applicant says that this ground relates to claims that he left Iran on a false passport. This claim was squarely considered by the POE and rejected. Nothing has been raised to indicate why this decision, on the merits of the case, would be judicially reviewable. In substance the applicant seeks merits review, which is not available in judicial review proceedings. The applicant did not point to any irrelevant considerations. The applicant has not identified an arguable case under this proposed ground.
Proposed ground 6
The sixth proposed ground is that:
6. The respondent's failed to take relevant consideration into account.
The applicant was unable to identify anything that he says was not taken into account by the POE. This proposed ground is not arguable.
Proposed ground 7
The seventh proposed ground is that:
7.The respondent's in making its decision did not comply with the rules of natural justice and denied the applicant procedural fairness.
As with proposed ground six, the applicant was not able to articulate anything that he claimed fell within this ground, merely saying ‘no comment’. This ground is unarguable.
Proposed ground 8
The eighth proposed ground is that:
8. There was insufficient evidence or no evidence to support various finding made by the respondent.
The applicant did not identify anything that may fall within the ambit of this ground. This proposed ground is therefore unarguable.
Other matters
At the hearing the applicant was asked to articulate any other matters that he relied upon or wished to tell the court about. The applicant made the point that at present he cannot return to Iran unless he leaves voluntarily, which he will not do. He asked how long he will remain in detention.
The options for people who are not permitted to enter Australia and are unable to be deported (as their country of origin will not accept their return) remains a vexing question. However, this issue is not a matter for judicial review in this case.
CONCLUSION
I am not persuaded that the applicant has an arguable case in the sense described in DHX17. I must therefore dismiss the application for an extension of time.
It is appropriate that the applicant pay the Minister’s costs. This matter was transferred from the Federal Court of Australia and has therefore had more events than usual. In the circumstances of this case, the scale fee for a final hearing appears more appropriate. I make orders accordingly.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge . Associate:
Dated: 28 June 2021