Cuy15 v Minister for Immigration

[2019] FCCA 1430

FEDERAL CIRCUIT COURT OF AUSTRALIA

CUY15 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1430

Catchwords:
MIGRATION – International Treaties Obligation Assessment – request for a Protections Obligations Determination – whether the assessor failed to consider an integer or component of the applicant’s claims – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), s.46A

Applicant: CUY15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: T LEW IN THE CAPACITY AS INTERNATIONAL TREATIES OBLIGATION ASSESSOR

File Number: SYG 3526 of 2015

Judgment of: Judge Street

Hearing date: 28 May 2019

Date of Last Submission: 28 May 2019

Delivered at: Sydney

Delivered on: 28 May 2019

REPRESENTATION

Solicitors for the Applicant: Mr S Hodges
Hodges Legal

Counsel for the Respondents: Ms N Laing

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Grant leave to the applicant to rely upon the Amended Application filed on 8 February 2019.

2. The Amended Application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $6,825.00.

DATE OF ORDERS: 28 May 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3526 of 2015

CUY15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

T LEW IN THE CAPACITY AS INTERNATIONAL TREATIES OBLIGATION ASSESSOR

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ in respect of a migration decision within the meaning of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of an International Treaties Obligation Assessment (“ITOA”) made on 25 September 2015.

2. The applicant was found to be a citizen of Iran and his claims for protection were assessed against that country. The applicant claimed to fear harm, in summary, for reasons of refusing to pay bribes to the Bodybuilding Federation of Iran (“BBFI”) and threatening to expose corruption in the sport of bodybuilding to the media, being a supporter of an opposition presidential candidate, not being a devout Muslim and for having allegedly converted to Christianity in Australia, being a returnee from a Western country and a failed asylum seeker, and by reason of his mental health issues.

3. On 1 December 2010, the applicant arrived in Australia as an unauthorised maritime arrival. On 7 July 2011, the applicant was assessed not to be a person to whom Australia has protection obligations in a Protection Obligations Determination (“POD”). On 22 December 2011, a subsequent Independent Protection Assessment (“IPA”) recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Refugee Convention (“Convention”) and 1967 Refugee Protocol. By letter dated 3 September 2012, the applicant was informed that his case did not meet the Minister’s Guidelines and was therefore not referred to the Minister for consideration of his power to allow the applicant to make a valid visa application under s 46A(2) of the Act. On 11 October 2012, the applicant commenced judicial review proceedings and on 7 April 2014, the Minister withdrew from the review.

4. On 31 October 2014, an assessor commenced the ITOA in respect of the applicant. By letter dated 17 June 2015 (“the Natural Justice Letter”), the assessor identified potential findings and reasons in respect of the applicant’s claims and provided the applicant an opportunity to respond to the same. By letter dated 19 July 2015, the applicant responded to the Natural Justice Letter. On 25 September 2015, the assessor found that Australia does not have non-refoulement obligations to the applicant.

5. On 24 December 2015, these proceedings were commenced by the applicant. On 1 March 2016, orders were made by a Judge of the Court which provided the applicant an opportunity to file an amended application, affidavit evidence and submissions. At the commencement of the hearing today, the Court granted leave to the applicant to rely upon the amended application filed on 8 February 2019.

6. The ground in the amended application is as follows:

   1. The assessor committed error by failing to consider an integer or component of the applicant’s claims.

   PARTICULARS

   a.  In his arrival interview, the applicant claimed that he was stopped and searched by the Basij “every night”.

   b.  In his Statement of Claims, dated 29 May 2011, the applicant claimed that he “had to go to the gym every night” and was stopped on his way back.

   c. The applicant claimed that he had been detained by the Basij at the checkpoint for an hour longer than most people.

   d. The applicant also claimed that he had a friend who was arrested at the checkpoint and held for 17 days during which he was tortured and showed the bodies of deceased people.

   e. The assessor accepted that the applicant was stopped by the Basij at a checkpoint near his gym during a period when the Iranian authorities were attempting to suppress the mass post-presidential election protests in 2010.

   f.   Despite doing so, the assessor did not make any findings as to whether the multiple occasions of detention, when considered together, amounted to serious harm. It follows that the assessor failed to consider whether the applicant faced a real chance of serious harm as a result of these events.

7. Mr Hodges, solicitor on behalf of the applicant, submitted that the assessor had failed to perform the ITOA according to law by reason of failing to consider an integer or component of the applicant’s claims.

8. Mr Hodges referred to the applicant’s arrival interview, in particular at Court Book page 10, where the applicant referred to being tired of the Basij harming his sport of bodybuilding and that every night he was stopped and searched by the Basij. The arrival interview included the question “Why would they stop and search you?”. In response, the applicant referred to his weight being 120 kilograms and to the Basij searching him because they were scared, which forced the applicant to attend his club less often.

9. The arrival interview also included the question, “Do you have any reasons for not wishing to return to your country of nationality?”. In response, the applicant identified a number of matters, which included “They stop everybody for no reason, asking silly questions”. Following that response by the applicant, the arrival interview included the question, “Did they stop you?”. In response, the applicant identified “Yes, they did it to everybody but more often to me because of my size”.

10. Mr Hodges submitted that the assessor in the ITOA at Court Book page 222, had accepted the applicant’s claim that he was detained for one hour longer than most people on orders from the Ministry of Intelligence (“MOI”) and specifically from the BBFI head. The applicant claimed that this was to pressure him into not going to the mass media to expose corruption by the BBFI.

11. Mr Hodges submitted that this integer of the applicant’s claim, being that he was stopped by the Basij for an hour longer than others, should have been the subject of a dispositive finding by the assessor. Mr Hodges submitted that there was no such dispositive finding and, accordingly, there was an integer or component of the applicant’s claim that the assessor had failed to address. Mr Hodges submitted that, therefore, the assessor had failed to conduct the ITOA according to law and the ITOA was not a valid exercise of the obligations required in an ITOA.

12. The assessor identified the background to the ITOA. The assessor referred to the IPA as well as the submissions advanced on behalf of the applicant. The assessor also referred to conducting an interview with the applicant on 31 March 2015. The assessor summarised the applicant’s claims. The assessor found that Australia does not have non-refoulement obligations to the applicant.

13. The assessor referred to the applicant’s claims in relation to the Basij harming the applicant’s sport, being bodybuilding. The assessor also referred to the applicant’s claims that he was stopped and searched because the Basij were scared of him because he is a body builder. The assessor also referred to the Basij detaining the applicant for one hour longer than other people. On a fair reading of the ITOA, the assessor was summarising the applicant’s claims and not making a finding of fact as contended by Mr Hodges.

14. The assessor referred to the sending of the Natural Justice Letter, which invited the applicant to comment on information relevant and/or adverse to his claims. The applicant’s letter in reply referred to the Natural Justice Letter and the possible findings which the assessor identified in that letter.

15. The applicant’s letter referred to the applicant’s complaint in relation to being stopped and searched by the Basij. The applicant’s letter identified that the applicant has won three bodybuilding championship competitions in Iran and that his statements regarding bribery by BBFI officials are true. At Court Book page 200, the applicant’s letter referred to the Natural Justice Letter and the applicant’s claim of the Basij checking the applicant for a longer period than usual because he was a big man and, as such, must be dangerous. At Court Book pages 203 to 204, the applicant’s letter referred to the Natural Justice Letter and the applicant’s claim that he was kept for an hour and answered questions at a Basij checkpoint because he is a big man and that the Basij spent extra time checking him.

16. The Natural Justice Letter noted that the applicant made no claim to indicate that he was considered a supporter of an opposition presidential candidate or anti-regime. The Natural Justice Letter also referred to the fact that the applicant was not beaten or arrested by the Basij but allowed to proceed home after being stopped and searched. The Natural Justice Letter also referred to the fact that the applicant did not go into hiding but continued to attend the gym, exposing himself to the possibility of arrest by the Iranian authorities. The Natural Justice Letter also referred to the applicant asserting in the IPA and ITOA that he believed he was targeted by the Basij at a checkpoint because he was under surveillance by the Iranian authorities as a consequence of an incident with a BBFI official who was seeking a bribe, not because of his involvement in the Green Movement or any other political activities. The Natural Justice Letter indicated that this may lead the assessor to make an assessment that the Iranian authorities have not targeted the applicant for serious harm for reason of his real or imputed pro-opposition presidential candidate or anti-regime political opinion.

17. The assessor noted that the applicant’s letter in reply to the Natural Justice Letter identifies the applicant’s submissions in respect of possible adverse findings, including that he feared for his life and that his friend was arrested, detained and tortured after defying the BFFI authorities’ demands and having an argument with them. No other submission on this issue was advanced by the applicant in respect of the possible adverse findings identified in the Natural Justice Letter.

18. The assessor did not accept that the applicant was a popular and/or high profile bodybuilder or sporting figure. The assessor did not accept that the applicant had a level of popularity or profile which attracted the adverse attention of the Iranian authorities. The assessor accepted that there may have been a Basij checkpoint positioned near the gym where the applicant trained and that he may have been regularly stopped and searched by them. The assessor, however, found that the applicant was not detained and/or arrested by the Iranian authorities, even if he was stopped and searched by the Basij at the checkpoint. The assessor also took into account that the claimant was able to depart Iran lawfully and using his own passport.

19. The assessor found that the applicant’s claims relating to his outburst against BBFI officials regarding bribery demands on behalf of a particular person, his real or implied threat to expose corruption in the sport of bodybuilding to the media, and his surveillance and harassment by Iranian authorities, lacked credibility. The assessor did not accept that those particular incidents occurred. The assessor also did not accept that the Iranian authorities perceived the applicant made a real or implied threat to expose corruption in the sport to the media.

20. The assessor accepted that the applicant did not regularly attend a mosque in Iran and is no longer a devout Muslim. The assessor found the applicant’s claims about his practice of Christianity to be lacking and unconvincing. The assessor did not accept that the claimant has made a genuine commitment to embrace Christianity. The assessor found that the applicant has not made a genuine and sincere conversion from Islam to Christianity. The assessor did not accept that the applicant would seek to practice Christianity should he return to Iran in the reasonably foreseeable future.

21. The assessor did not accept that the applicant was on any blacklist issued by the Iranian authorities. The assessor also did not accept that the applicant refused to pay bribes to get into the national bodybuilding team, made an outburst against a particular person, threatened to expose corruption in his sport to the media and, as a consequence, was subject to surveillance and harassment by the authorities. The assessor also did not accept that the applicant was perceived by the Iranian authorities as having made a real or implied threat to expose corruption in his sport to the media. The assessor also did not accept that the applicant participated in overt pro-opposition presidential candidate or anti-regime political activities. The assessor also did not accept that the applicant was known to the Iranian authorities to be an opposition presidential candidate supporter and/or as being anti-regime. The assessor also did not accept that Iranian authorities perceived the applicant to be an opposition presidential candidate supporter or to be anti-regime. The assessor also did not accept that the applicant’s claims in relation to Christianity or that he had informed persons in Iran of his conversion. The assessor found that the Iranian authorities would not be aware of the applicant’s involvement with Christianity in Australia.

22. In relation to the argument advanced by Mr Hodges, the assessor made reference to the applicant’s claims that he attended a bodybuilding gym, there was a Basij checkpoint located in the street where he trained and that he would be stopped and searched by them. The assessor made reference to the fact that the applicant was not detained.

23. The assessor made reference to the fact that bodybuilding is not a banned sport in Iran and, moreover, is a recognised sport by the Iranian authorities. The assessor did not accept that being a bodybuilder sportsman, in itself, will result in being targeted for serious harm by the Iranian authorities. The assessor found that there is no evidence to indicate that popular and/or high profile sportsmen in Iran are targeted for serious harm by the Iranian authorities for reasons of their profile and/or popularity. The assessor found it implausible that the Iranian authorities would want to harm popular or high profile sporting figures. The assessor did not accept that being a popular or high profile sporting figure in Iran, in itself, will result in serious harm by the Iranian authorities.

24. The assessor accepted that the Iranian authorities would know that the applicant was a bodybuilder. The assessor also accepted that the applicant had won a bodybuilding title and that he was regularly stopped and searched by the Basij at a checkpoint near the gym where he trained. The assessor referred, however, to the fact that the applicant was not assaulted or arrested by the Basij at the checkpoint but allowed to leave after a short period of time. The assessor also referred to the fact that the applicant continued to attend training at the gym despite the continued presence of and such treatment by the Basij at the checkpoint. The assessor found that whatever level of profile, popularity and physical size at the time, the applicant was not deprived of his liberty, accommodation, opportunity to earn a livelihood, freedom of movement or any other fundamental human rights by the Iranian authorities at a level amounting to persecution. In these circumstances, the assessor was satisfied that the applicant does not face a real chance of serious harm by the Iranian authorities, including the Basij, as a consequence of being a bodybuilder, a sportsman, or his big physical size.

25. The assessor found that the applicant does not face a real chance of serious harm by the Iranian authorities as a consequence of his membership of a particular social group of bodybuilders/sportsman in Iran. The assessor found that the applicant’s fear of serious harm by the Iranian authorities because of his membership of this particular social group is not well founded.

26. The assessor found that the applicant does not face a real chance of suffering mistreatment by the Iranian authorities at a level amounting to serious harm for reasons of his real or imputed political opinion as a consequence of being a returnee who has resided in a Western country and/or a failed asylum seeker. Therefore, the assessor found that the applicant’s claimed fear of serious harm for his political opinion, real or imputed, as a consequence of being a returnee, a returnee from a Western country or a failed asylum seeker, is not well founded.

27. The assessor referred to having considered the applicant’s claims and circumstances in their totality. The assessor found that the applicant does not face a real chance of serious harm by the Iranian authorities for a Convention reason if returned to Iran in the reasonably foreseeable future. Therefore, the assessor found that the applicant’s fear of serious harm in Iran for one or more Convention reasons is not well founded.

28. It is apparent from the ITOA that the assessor made a dispositive finding in respect of the whole of the integer of the applicant’s claims in respect of being stopped and searched, and his claim of being stopped for longer than others by the Basij. The Court does not accept Mr Hodges’ submission that it was necessary for the assessor to make an express reference to the applicant’s claims of being stopped for longer than others in the ultimate finding, given the reference to that claim in the assessor’s summary of the applicant’s claims. The reference to the applicant being stopped and searched was a reference by the assessor that included the applicant’s claim in respect of being stopped. The finding that the applicant was not detained or arrested even though he was stopped was logically dispositive of the applicant’s claims correctly summarised by the assessor. There was no need to make an express finding about the multiple occasions in terms of number as the applicant was the subject of a finding that he was not detained or arrested. The finding of being stopped on a fair reading included the applicant’s claim that he was stopped for longer. There is no integer or component of the applicant’s claim that was not a subject of a dispositive finding by the assessor as alleged in ground 1. No jurisdictional error was made by the assessor in the assessment as alleged in ground 1.

29. Accordingly, the amended application is dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 26 July 2019