CUE17 v Minister for Immigration

[2018] FCCA 1642

FEDERAL CIRCUIT COURT OF AUSTRALIA

CUE17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1642

Catchwords:
MIGRATION LAW – Protection visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2)

First Applicant: CUE17

Second Applicant: CUF17

Third Applicant: CUG17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 590 of 2017

Judgment of: Judge Vasta

Hearing date: 15 June 2018

Date of Last Submission: 15 June 2018

Delivered at: Brisbane

Delivered on: 15 June 2018

REPRESENTATION

Counsel for the Applicants: Ms A. Julian-Armitage

Solicitors for the Applicant: Porta Lawyers

Solicitors for the Respondent: Minter Ellison

ORDERS

1. That the Applications filed on 23 June 2017, 17 May 2018 and 29 May 2018 be dismissed.

2. That the Applicants pay costs to the First Respondent fixed in the sum of $7,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 590 of 2017

CUE17

First Applicant

CUF17

Second Applicant

CUG17

Third Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 19 May 2017 the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant CUE17, CUF17 and CUG17 protection visas.

2. The background to this decision by the IAA was this.  The first Applicant is a man who has a wife, who is the Second Applicant and a young son, who is the Third Applicant.  Those three are citizens of Iran. 

3. The First Applicant has made the claim for protection and the Second and Third Applicants are included in that application as dependents.  They have not raised their own claim for protection.

4. The Applicant’s claim was summarised in this way.  He is the citizen of Iran and he lived in Shiraz.  He is a Shia Muslim by birth but does not practice his faith.  His brother was one of the first members of the Green Movement.  The Applicant became a member of the Green Movement so that he could support his brother.  They often gathered in the Goba Mosque in Shiraz. 

5. After an election had occurred, the Green Movement was gathering in the mosque and security forces arrived and broke up the meeting.  The members of the Green Movement responded by throwing stones at the officers.  Some people were arrested and others were exiled to other regions and banned from the Mosque.

6. In June 2010, on the first anniversary of the 2009 election, the Applicant said that he attended a Green Movement gathering at Ayran Square, which was dispersed by authorities, and he was arrested and detained for 14 days and then released. 

7. He said that during his detention, security forces raided his parents’ house and took his books and computer and neither of those were ever returned. 

8. He said that after he was released from detention, he was fired from his job at a government controlled workshop.  He said that this was due to his arrest.  He said that he could no longer get funding for his mechanics training and that he would not be able to get another job because his name was on a government blacklist. 

9. He said that he opened his own motor mechanic workshop but was denied a business permit.  He said that there was a seal placed on his workshop to prevent him from working, but he broke the seal. 

10. He said as a consequence, he was summonsed to attend court and whilst waiting for his hearing at the court, he argued with people working at the court and he was subsequently detained for seven days and charged with contempt of court.

11. He said that he was released on bail after providing his house as a bond, or in our terms, a surety.

12. He said that after his release on bail, he left Iran because he had no future there.  He said that if he had continued the court case, he would pay for it with his life.  He left on bail and he claimed that he will be arrested on return and will be tortured.  He said that he will lose his house that he bonded for bail. 

13. He said that he fears that if he returned to Iran, he would be arrested and tortured.  He would continue to pay with his life and future for protesting as a member of the Green Movement and he is on a government blacklist and no one will employ him for this reason. 

14. He says that he cannot study or train at any institution or get a business registration to work.  His trade licence has been confiscated.  He cannot earn an income and is being denied the right to generate income to look after his family.

15. The IAA considered all of those matters very thoroughly and gave reasons as to why they came to the conclusion that they did. 

16. The IAA did accept quite a deal of the basis of the claims of the Applicant. They accepted that he was a member of the Green Movement, that he had done so to support his brother.  But of note to the IAA, was that the Applicant had not claimed that he faced any harm or was of any adverse interest to the Iranian authorities because of his brother’s political activities.

17. What the IAA accepted was that the Applicant had assisted during the 2009 presidential elections.  He had handed out sherbet and drinks and he attended to voters.  He attended 10 to 15 demonstrations in relation to the elections and that he would gather in the Mosque and protest about the elections.  All of these matters were accepted by the IAA. 

18. With regard to the matter that occurred a year afterwards when the security forces broke up the meeting and beat people with batons, and those people responded by throwing stones at the officers, the IAA noted that they accepted that there were some people that were arrested and others exiled to other regions and banned from the Mosque.  But the Applicant was not arrested.  The Applicant was not exiled and the Applicant was not in any way harmed by the authorities during this incident.

19. The IAA came to the conclusion that he would not face a real chance of harm from the Iranian authorities simply as a result of this incident. 

20. The IAA accepted that he was part of the gathering on the first anniversary of the 2009 election and that he attended the Ayran Square demonstration which was disrupted and that he was arrested and detained for 14 days.

21. The Applicant claimed that he was slapped and kicked around during that 14 days and the security forces went to his house and took the computer and books.  The Applicant claimed that he was released with the assistance of a lawyer.  He did not ever go to court and he was not sentenced. 

22. The IAA was willing to accept that this occurred because country information seemed to corroborate that those sorts of matters were occurring in 2009 and 2010 to Green Movement demonstrators.

23. The next part of the Applicant’s claim regarded his dismissal. The IAA noted that the Applicant claimed that he was working at a mechanical workshop.  He was undergoing training that had been funded by the government but after he was released from prison, he was fired from the job and could not get funding for his training.

24. In his protection visa interview he said that this occurred one or two months after his arrest.  What he told the department during that interview was that his former employer told him that as he (the Applicant) had not worked for 40 days and could not get any more funding for further training, and that they, the employer, did not need him anymore, that they would simply call him if they needed him.

25. He said that his former employer kept his motor mechanic licences.  The Applicant claimed that he knew he would not get another job because his name was now on a government blacklist. 

26. The legal representative that was present at this interview told the department that another reason that the Applicant believed he had been fired from his job because of his political activities, was because most of the students he had been arrested with were subsequently expelled from the university.  He also differentiated himself from his younger brother, because his younger brother was granted a business permit but he was not.

27. The IAA looked at this matter and accepted that the Applicant may have lost his job after his detention, but was not satisfied that this was as a direct result of political activities or his detention or because he had been placed on a government blacklist for these reasons. 

28. The IAA gave weight to what the employer told the Applicant on termination; that is, that the Applicant had not been at work for 40 days.  Given that he was incarcerated for 14 days; that is 26 days of unaccounted absences.  The employer apparently said that he could not get any more funding for further training and that they did not need him anymore and that he would be called if he was needed.

29. The IAA noted that it does not appear from the nature of this conversation that the Applicant had been terminated for the reasons that he had claimed.  Such a conclusion was made and was open for the IAA to make.

30. The IAA said that because they did not accept that he was on a blacklist, they did not accept the claim that the former employer retained the mechanic licences because there would not be any basis for them to do so.

31. The Applicant had said during his protection visa interview that he had not been involved in political activities since his release from detention, other than attending events at his Mosque.  The DFAT information was that lower profile activists arrested in the 2009 and 2010 protests were unlikely to face serious ongoing harassment and were normally able to go about their daily lives unmolested. 

32. Having regard to that information and the background to what the Applicant had said had occurred when he lost his job, the IAA was not satisfied that there was any nefarious reason, such as being on a blacklist, which led to this occurring.

33. The IAA also did not accept that the Applicant was denied a business permit because of his previous political activities.

34. The IAA concluded even if the Applicant were to return to Iran and still be denied a business permit to open his own mechanic workshop, this would be for reasons unrelated to his political activities. 

35. The IAA was also not satisfied that it would cause serious economic hardship or would deny his capacity to earn a livelihood and therefore amount to serious harm.

36. With regard to the outstanding court matters, the IAA, noting some inconsistency in the evidence of the Applicant, was willing to accept that the Applicant created a scene at the court in protest in regards to how he had been treated by the authorities in regards to the denial of his permit and that he was consequently detained for seven days and then released. 

37. The IAA was not satisfied that the Applicant was imputed to be against the Iranian regime as a result of this incident or for breaking the seal at his workshop. 

38. The IAA did not accept the claim that the Applicant was subsequently charged with being in contempt of court and then released on bail after providing his house as a bond.  The Applicant claimed in his protection visa interview that he did not know what the verdict was in his court matter, but the IAA noted that he was in contact with his family in Iran every few days. 

39. The IAA did not consider it plausible that the Applicant would not have found out the outcome of his court matter in relation to breaking the seal of his workshop, or even in regards to being charged with being in contempt of court.

40. The Applicant had not provided any evidence of any further summons or other documentation he may have received in relation to these matters, given he claims to have left the country prior to receiving a verdict and it has been over four years since he left the country.

41. The country information, which was before the delegate and the IAA, indicates that it is possible to leave Iran whilst on bail, but the consequence would be confiscation of the bail.  The Applicant had not provided any evidence that his house was subsequently confiscated due to possible breach of his bail for not having returned to the country. 

42. Given this lack of evidence, the IAA did not accept that the Applicant was charged with contempt of court and released on bail and that there is any outstanding court matter in relation to his protest at the courthouse and subsequent detention.

43. The IAA was not satisfied that the court matter in relation to breaking the seal at his workshop was not resolved prior to his departure from Iran.

44. Because of that conclusion, the IAA was not satisfied that the Applicant faces a real chance of harm on return to Iran because he had been summoned to attend court for breaking the seal at his workshop or because he had been detained for protesting at the courthouse.

45. Even though it was not raised, the IAA still looked at whether the Applicant would face a real chance of serious harm on return to Iran as being a failed asylum seeker from the west. 

46. The IAA went through, at paragraphs 23 and 24, what the country information was and came to the conclusion that they were not satisfied on the basis of the country information, that failed asylum seekers from Australia or any other western countries are imputed to be against the Iranian regime. The IAA concluded that anything that occurs to returned asylum seekers after they have been returned, would not amount to serious harm. 

47. In those circumstances, the IAA was not satisfied that the Applicant faced a real chance of harm on return to Iran because he was a failed asylum seeker.

48. The IAA also looked at whether he would face harm because he was a non-practising Shia Muslim and did not find that there was such a real chance of harm because of this aspect. 

49. The IAA then looked at all of the matters cumulatively and came to the conclusion that, assessing his claims cumulatively, they did not find that those claims gave rise to a real chance of serious harm. Therefore, he did not meet the requirements of the definition of refugee and does not meet the criteria of s.36(2)(a) Migration Act 1958 (Cth) (“the Act”).

50. The IAA looked then at complementary protection and, really because of the findings that had already been made, came to the conclusion that there were no substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that the Applicant would suffer significant harm and therefore he did not meet the criteria in s.36(2)(aa) of the Act.

51. Because the members of the same family unit had no other claims, their applications were also not looked at.

52. On 23 June 2017, the Applicant applied to this Court for a review of the decision.  That Application was amended on 17 May 2018 and then further amended on 29 May 2018. 

53. The grounds of the Application are:

    “1. The IAA fell into jurisdictional error in determining whether the Applicant satisfied the definition of “refugee” pursuant s5H(1) and the provisions of s36(2)(a) and (aa) of the Migration Act by 1958 (“the Act”) by failing to consider relevant material, being genuine facts asserted by the Applicants.”

54. The problem with this ground is that it presupposes that the default position for the IAA is that the Applicant’s statements and evidence must be accepted unless the contrary is shown.  That is not the duty of the IAA. 

55. The IAA must be convinced that, first off, that the Applicant comes within the definition of refugee and meets the criteria of s.36(2)(a) or that Australia owes complementary protection and therefore meets the criteria of s.36(2)(aa). It is for the Applicant to satisfy the Minister, and therefore the IAA, of that matter.

56. The IAA looked at all of the claims that were made in the statement and, as I have recited by looking through the IAA decision, came to conclusions that were open to the IAA.  It is not to the point that, as the Applicant claims, that there was no contrary evidence to base that finding, again, because that presupposes that the evidence must be accepted unless the contrary is shown.

57. It is for the Applicant to show that he meets the criteria.  Therefore I do not find that there has been any jurisdictional error with regard to ground 1.

58. Ground 2 is:

    “2. Furthermore, the IAA reached conclusions that were not based on factual evidence raised by the Applicants or available to it in relation to the Applicants.”

59. There are a number of particulars given where it is stated that the IAA did not accept certain matters and then claims that there is no evidentiary basis for the making of the said findings.  Further it is argued that the IAA’s reasons for decision do not set out the evidence relied on to support the findings of fact made.

60. Going through those particulars, I have already dealt with them in the recitation of the facts.  The particular matters complained of were:

    “The applicant will face a real chance of harm on return to Iran from the Iranian authorities because of the brother’s political activities/ profile, or because of his own involvement in the Green Movement and previous arrest in 2010.”

61. The IAA looked at that statement but also looked at the fact that whatever occurred to the Applicant did not occur because of his brother’s matters; that his activities with regard to the Green Movement really were, to all intents and purposes, over with after the period of detention. The country information shows that those people who were targeted in 2009 and 2010 and have been low level protestors, live their lives in relative peace and obscurity.  That was sufficient for the IAA to come to the conclusion that it had.

    “The applicant was fired from his job, placed on a government blacklist and prevented from working, studying or training because of his political activities and arrest in 2010.”

62. The notation by the IAA that the words used by the employer when the Applicant was no longer needed for his job were sufficient in and of themselves to justify the action and such did not bespeak of a government blacklist, especially when given the country information as to what had happened to persons who were 2009 and 2010 low level Green Movement supporters.

    “The applicant’s former employer retained his mechanical licences.”

63. This was a claim that the IAA simply did not accept because there was no logical reason for the former employer to do so.  Such a finding was certainly open to the IAA.

    “The applicant could not work, or would be prevent from working as a mechanic with another company or train and work in another trade if he were returned to Iran”

64. The IAA came to the conclusion there was simply no evidence of this at all.

    “The applicant was subsequently charged with being in Contempt of Court and then released on bail after providing his house as bond.”

65. The IAA, looking at all of the circumstances, simply did not accept that this had occurred because one would have expected there to be some evidence that the matter had been, at the very least, mentioned in court or dealt with in court, and that the house would have been forfeited. There was no evidence of that and so it was certainly open to the IAA not to accept that claim.

    “There is any outstanding court matter in relation to his protest at the courthouse and subsequent detention or in relation to breaking the seal at his workshop.”

66. The IAA considered all of the evidence, all of the circumstances, including the fact that the Applicant was able to travel as freely as he did on a passport and the lack of any information from the court that these matters are still pending.  All of this was certainly sufficient for the IAA to come to the conclusion that they did.  There does not need to be actual evidence to the contrary for the IAA to come to the conclusions they have. It is for the evidence before the IAA to satisfy them. Therefore, ground 2 fails.

67. Ground 3:

    “The IAA failed to take into account relevant considerations in its determination as to whether the applicant’s (sic) met the provisions of s36(2)(a) ad (aa) of the Act. In particular, the circumstances surrounding the First Applicant’s incarceration and subsequent dismissal from his government based employment due to his membership of the Green Movement.”

1. This ground is somewhat misconceived.  To allege that the IAA has failed to taken into account relevant considerations is an allegation that there were mandatory matters for which the IAA needed to consider and the IAA simply did not do that. 

2. There has been no identification of the considerations that were not taken into account.  What this ground actually is, is an attempt at an impermissible merits review.  All of the matters that are complained of in the particulars as to the relevant considerations were considered by the IAA. 

3. The fact is the IAA came to conclusions that were contrary to the ones that the Applicant wished the IAA to make.  That is what the true complaint of is in ground 3 and it does not disclose any jurisdictional error and so I reject that ground.

4. Ground 4:

   “In addition, the IAA failed to take into consideration all relevant or any negative consequences that will impact on the Applicant and his family as a result of findings and determinations resulting from charges against him for contempt of court in relation to breaking a Court ordered seal on his workshop not determined prior to the Applicant’s departure from Iran.  Furthermore, the Applicant was denied natural justice because the IAA failed to give proper, genuine and realistic consideration to the Iranian government’s position that its citizens will not be allowed re-entry into the country if the re-entry is involuntary resulting in the Applicants, by necessity, needing to be detained in Australia indefinitely.”

5. Whilst the first part of this ground is, again, another attempt at an impermissible merits review, the second part of this ground really results from the IAA’s looking at a matter that was not a claim made by the Applicant. 

6. Notwithstanding that the Applicant did not claim that he feared what would happen to him upon return from Australia to Iran as a failed asylum seeker, the IAA still went into that area.

7. The IAA looked at quite a deal of country information.  The Applicant submits that one of the items that the IAA looked at was a report from the Danish Immigration Service.  That report was titled “Human Rights Situations for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc; a Fact Finding Mission to Iran, 24 August to 2 September 2008”. 

8. The report was published in April 2009. So it does have some date on it.

9. This report was before the IAA.  In that report at paragraph 7.8 headed Forced Return, the report states:

   “A western embassy (2) considered it a serious problem that Iranian citizens without documents cannot be returned to Iran unless they agree to do so voluntarily.  This specifically relates to Iranians that have not been granted asylum.” 

   Merfica explained that Iranian citizens abroad who are not in possession of a passport cannot be forced to apply for a passport or to sign papers to obtain travel documents according to Iranian law.  Hence, an Iranian citizen without a passport who does not wish to return to Iran cannot be forced to do so.”

10. The material before the IAA suggests that the Applicant’s passport was destroyed when he came to this country, even though he had used his passport legitimately to leave the country in the first place.  He still retained an Iranian citizen card, according to the documentation.

11. The IAA did not refer to that part of the report.  However the IAA did refer to other parts of that report, but also looked at the DFAT information that was more recent. 

12. At paragraph 23 the IAA noted:

    “DFAT has stated that strong anecdotal evidence suggests that officials do not attempt to prosecute a voluntary returnee - largely because most failed asylum seekers lease Iran legally. The applicant has claimed to have left Iran legally on his own passport which I accept and I am not satisfied there is a real change he will be prosecuted for illegal departure on return to Iran for this reason.”

13. Paragraph 24:

    “Irrespective of whether a returnee is travelling on a temporary travel document or their ordinary passport, credible sources have told DFAT that they will generally only be questioned if they have done something to attract the specific attention of authorities.  The vast majority of people questioned would be released after an hour or two.  A source also told the Danish Immigration Service in 2009 that an Iranian travelling on a lalssez-passer is likely to be interviewed upon arrival, and questioned on how he or she lost the previous passport.  This procedure varies in length, depending on whether the airport authorities still have to verify the person’s identity.  It may take two to three hours.”

14. Paragraph 25:

    “I am not satisfied, on the basis of the country information that was before the delegate, that failed asylum seekers from Australia/western countries are imputed to be against the Iranian regime…”

15. What is complained of is that the IAA did not take into account that part of the report that I have previous identified.  However the IAA did take note of the report because that report was the source for the information in paragraph 24; that someone without the passport would be questioned for two to three hours.

16. The question is then, does that mean that there are contradictions within the report itself.  That may be so, but it is for the IAA to look at a report and to accept what it will out of it.  The IAA has clearly looked at the report and accepted that, in 2009, all the information before it would be that the person without a passport would be interviewed on arrival and questioned about that and the procedure would vary in length, and it may take two to three hours.

17. To find a jurisdictional error, it is really not a case of whether the IAA should have come to a conclusion based on the report that is different to the conclusion that it did come to.  The question is whether it could come to the conclusion that it did. 

18. Certainly, on the report that was before the IAA, it was open to the IAA to come to the conclusion that it did. This is especially so when such conclusion that was made by the IAA was also corroborated by the DFAT information.  Therefore I find that there has been no jurisdictional error demonstrated in ground 4.

19. Ground 5 reads:

    “The IAA’s decision was manifestly unreasonable as it is based on conclusions and determinations not based on any evidence before it.”

20. This ground also has no merit because it is not a question of whether a decision is unreasonable because there is no discretion in such a decision. It is really a question as to whether the decision was open or not open.

21. As I have previously stated, by going through the facts in the detail that I have, the decision made by the IAA was certainly open to it on the evidence.  Therefore I find that there is no substance in that ground. 

22. Having a look overall at the matter, I cannot find that there has been demonstrated any jurisdictional error. 

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:      25 June 2018