CQX18 v Minister for Home Affairs
[2018] FCCA 2015
•19 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CQX18 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2015 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 473DD, 476 |
| Applicant: | CQX18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1435 of 2018 |
| Judgment of: | Judge Street |
| Hearing date: | 19 July 2018 |
| Date of Last Submission: | 19 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 19 July 2018 |
REPRESENTATION
| The Applicant appeared by video link. |
Counsel for the Respondents: | Mr J Kay Hoyle |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1435 of 2018
| CQX18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
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 the decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 18 April 2018 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a citizen of Iran, and his claims were assessed against that country. The applicant was found to be an Ahwazi Arab born in the Khuzestan Province, and grew up as a Shia Muslim. The applicant claims to fear harm from the authorities by reason of his conversion to Sunni Islam, by reason of the discrimination he will face as an Ahwazi Arab, by reason of the conduct he engaged in in Iran in breaches of the moral code, by reason of the applicant’s alleged political opinion, and likelihood of engaging in political activities if returned to Iran, as well as being a person who is returning to Iran as a failed asylum seeker from a western country. On 1 March 2016, a delegate found the applicant failed to meet the criteria for the grant of a protection visa.
The Authority’s decision
On 6 March 2018, the Authority wrote to the applicant identifying that the application for the visa had been referred to the Authority for review. The letter explained there were limited circumstances in which the Authority could consider new information. The letter provided an attached fact sheet and Practice Direction giving the applicant an opportunity to put on new information and submissions.
The Authority in its reasons, identified taking into account the submissions that were provided on behalf of the applicant dated 26 March 2018, insofar as they engaged with the delegate’s decision. The Authority identified that there was country information included in the submission that was not before the Minister and was new information. Having regard to both limbs of s 473DD of the Act, the Authority found that there were not exceptional circumstances to justify considering the new information.
The Authority summarised the applicant’s claims for protection, and set out the relevant law. In relation to the applicant’s claimed fear of discrimination, the Authority accepted that discrimination against Ahwazi Arabs is widespread, but was not satisfied the applicant would experience significant economic hardship, or that the discrimination the applicant has experienced or would experience, should he return to Iran, amounts to serious harm. The Authority accepted that the applicant may have found incidents of racial abuse distressing, but found there is no threat to the applicant’s life or liberty, or physical harassment or ill treatment, or significant economic hardship, denial of access to basic services in respect of the capacity to earn a livelihood that threatens the applicant’s capacity to subsist, or other form of harm that may be considered serious harm. In that regard, the Authority found the applicant did not have a well-founded fear of serious harm on the basis of discrimination being an Ahwazi Arab.
The Authority referred to the applicant’s concerns arising out of alleged breaches of the moral code. The Authority accepted that the applicant was stopped twice by reason of being with his girlfriend, but was not satisfied he was detained and beaten when held. The Authority referred to country information, and was not satisfied the applicant would fail to mention being detained and beaten if that was true when asked at his arrival interview if he had been arrested or detained. The Authority was not satisfied the applicant was detained and beaten for being with his girlfriend as claimed. The Authority found that the applicant was warned about his behaviour when detected in public with his girlfriend.
The Authority referred to the applicant being in the company of a non-family member of the opposite sex, and took into account country information, and was not satisfied that there was more than a remote chance that the applicant would face serious harm on this basis in the foreseeable future in Iran.
The Authority did not accept there was a real chance the applicant would face harm should he use alcohol on return to Iran. The Authority referred to the applicant’s claims that his father was visited by the Iranian authorities who had access to his Facebook page. The Authority referred to the applicant not having advanced the serious claim that the authorities had visited his father in his statement which was completed only two months before the interview. It was in these circumstances, the Authority found the applicant’s failure to mention the significant claim casts doubt on the genuineness of that claim.
The Authority referred to the applicant’s Facebook page and was not satisfied that this would attract adverse attention should the applicant return to Iran. The Authority did not accept the applicant was posting anti-regime material on his Facebook page, or that the Iranian authorities visited the applicant’s father in this regard. The Authority did not accept that the father has asked the applicant to remove these posts, and that he has done so as a result of the claimed attention from the Iranian authorities. The Authority found the applicant had fabricated these claims in an attempt to enhance his protection claims.
The Authority referred to the applicant’s claims of holding strong political views in opposition to the Iranian regime. The Authority found the applicant has exaggerated the level of his involvement, and that he has not been an active anti-regime protester as he claims. The Authority referred to the activities of the applicant and found they had been exaggerated. The Authority was not satisfied the applicant faces any chance of harm in Iran on the basis of his activity in Australia. The Authority also had regard to the applicant’s activities in Australia, and considered that the applicant’s claim that he has been an active anti-regime protestor to be an exaggeration of his activities. The Authority did not accept the applicant would be active on return to Iran, or that he wishes to be, and the Authority was not satisfied that he faces any harm in Iran on this basis. The Authority was not satisfied that the applicant’s behaviour of low level activity is a reflection of his political opinion, and does not require the applicant to modify his behaviour. The Authority was not satisfied the applicant has a well-founded fear of persecution in Iran on the basis of political opinion.
The Authority referred to the applicant’s claim to have converted to the Sunni religion. The Authority found the applicant failed to satisfy the Authority he has adopted the Sunni faith, and found the applicant has fabricated this claim to enhance his protection claims. The Authority was not satisfied the applicant would face harm for reason of having no religion.
The Authority referred to the applicant no longer having his passport, and that he would return to Iran as an involuntary returnee. The Authority did not accept that the authorities would have any adverse interest in the applicant, or that he would be harmed during questioning or processing that would amount to serious harm. The Authority made express reference to the applicant having been detained in Dubai for reason of false permits and was not satisfied the applicant would face any harm on this basis should he return.
The Authority was not satisfied there was a real chance of the applicant suffering persecution in the reasonably foreseeable future in Iran on the basis of his political opinion, religion, breach of the moral code and returning to Iran as an asylum seeker from a western country. The Authority found the applicant failed to meet the definition of refugee in s 5H(1) of the Act and found the applicant did not meet the criteria under s 36(2)(a) or s 36(2)(aa) of the Act and affirmed the decision upon review.
Before this Court
Orders were made by a Registrar on 18 June 2018, giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed after the making of those orders by the applicant.
The applicant did file an affidavit in which the applicant summarised his claims and what had occurred in relation to the adverse determination and sought to advance further evidence in support of the applicant’s claims. This Court is not in a position to make fresh findings of fact in relation to the applicant’s claims. Insofar as the affidavit seeks to advance evidence in respect of the applicant’s claims, it is not relevant, insofar as establishing any jurisdictional error referable to the determination of the applicant’s claims assessed by the Authority.
At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.
From the bar table, the applicant addressed his concern in relation to discrimination because of his Arab ethnicity and referred to the discrimination that had occurred in relation to his childhood, his education and in the workplace. The applicant’s claims in relation to discrimination against Ahwazi Arabs was expressly considered and addressed by the Authority. Taking into account country information, the Authority’s reasons accepted discrimination against Ahwazi Arabs as widespread but found that the discrimination did not amount to serious harm and found in relation to the applicant’s capacity to subsist, that the discrimination did not amount to serious harm and that the applicant did not have a well-founded fear of serious harm on this basis. Whilst the applicant may disagree with the adverse finding, it does not identify any jurisdictional error.
The applicant also referred to incidents involving his mother and advanced claims relating to his uncle. The claims relating to his uncle were not identified in the material before the Authority and cannot give rise to any error by the Authority.
The applicant also raised claims in relation to his conversion to Sunni religion and what was said to be his now interest in Christianity. The allegation of interest in Christianity was not a claim that was advanced before the delegate or before the Authority. The Authority considered the applicant’s claim for fear of harm by reason of having allegedly changed his religion to Sunni Islam and did not accept that the applicant had done so. Again, whilst the applicant may disagree with the adverse finding, the Authority provided rational, logical and cogent reasons in support of the adverse finding, as summarised above.
The applicant also raised concern as to what would happen to him on return to Iran and the Authority expressly considered what would occur and took into account that the applicant would be questioned because of his travel documents and found that the process of that questioning process would not amount to serious harm in relation to the applicant.
The Authority also took into account the applicant’s claims concerning having been detained in Dubai for reason of false permits and again found that it was not satisfied the applicant would face any harm on this basis on return to Iran. Those adverse findings were open to the Authority and cannot be said to be illogical, irrational or unreasonable. Whilst the applicant may disagree with the findings, what was said by the applicant from the bar table in that regard does not identify any jurisdictional error.
The applicant maintained that he would be taken to Court and that because of his uncle, he would be tortured and subjected to serious harm. No express claim in that regard was advanced before the Authority and no such claim arises on the material before the Authority. A claim not raised before the Authority cannot give rise to any jurisdictional error. The applicant’s submissions from the bar table otherwise invited the Court to engage in impermissible merits review. Nothing said by the applicant from the bar table identified any jurisdictional error.
The grounds
The grounds of the application are as follows:
1. The main ground of the application is that IAA didn’t concerened on the seriousness of the consequenses which im goning to face if I got deported.
2. IAA didn't gave no weight to the evidence I submitted during the Review.
3. Those evidence are really important to take into account while reviewing the decision because only with the help of media reports and other news articles I can prove that what is the current situation in my country Iran, wht could happen to me if I got deported
4. IAA quashed my case, by not taking important things in their notice.
5. Respected court justice was not done with me.
(All errors are in the original)
Ground 1
In relation to ground 1, it is apparent from the summary above that the Authority correctly identified the applicant’s claims and made dispositive findings in respect of those claims that were open to the Authority. The Authority gave logical and rational reasons in support of those adverse findings including the applicant’s claims to be a prominent political activist and a convert to Sunni Islam. Ground 1 in substance reflects a disagreement with the adverse findings and does not make out any jurisdictional error.
Ground 2
In relation to ground 2, it is apparent from the summary above that the Authority did refer to the applicant’s claims and evidence before the delegate and also took into account the submissions that were advanced by the applicant in the review process. The Authority did reject country information that was advanced and found to be new information, and in that regard, the Authority took into account both limbs of s 473DD of the Act. There is no basis to find that the Authority erred or misunderstood or misapplied the provisions of s 473DD of the Act in respect of that information. It was a matter for the Authority to determine what weight to give the evidence and the country information. No jurisdictional error is made out by ground 2.
Ground 3
In relation to ground 3, insofar as it seeks to refer to the material that was not accepted because it was new material, the statutory regime did not permit the Authority to take into account new information unless the Authority was satisfied that there were exceptional circumstances to justify doing so. Insofar as the reference to evidence is, the applicant’s evidence in respect to his claims, the Authority on the basis of the Authority’s reasons, understood the applicant’s claims and made adverse findings that were open to the Authority. The applicant’s disagreement with those adverse findings does not identify any jurisdictional error.
The Court notes insofar as the applicant has referred both in his affidavit and in his oral submissions to more recent country information material, that information was not before the Authority and is not capable of making out any jurisdictional error by the Authority. Ground 3 in substance reflects a disagreement with the adverse findings by the Authority that were open to the Authority and cannot be said to be illogical or unreasonable. No jurisdictional error is made out by ground 3.
Ground 4
Ground 4 is a generalised assertion that, unparticularised, is incapable of making out any error. There is no important aspect of the applicant’s claims that was not the subject of dispositive findings by the Authority. No jurisdictional error is made out by ground 4.
Ground 5
Ground 5 in substance reflects a disagreement with the adverse finding and it does not identify any jurisdictional error. This Court has no power to determine the application made to this Court on discretionary or compassionate grounds. It is only if a relevant legal error is made by the authority that the Court can grant relief. No jurisdictional error is made out by ground 5.
Conclusion
No jurisdictional error has been made out in the present case. Accordingly, the application is dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 28 September 2018
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