Dar20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 276
•25 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DAR20 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 276
File number: MLG 2284 of 2020 Judgment of: JUDGE SYMONS Date of judgment: 25 March 2024 Catchwords: MIGRATION – protection visa – application for review of decision of the Immigration Assessment Authority – where applicant claims reprisal based on expression of atheist views– where Authority placed no weight on court documents produced by the applicant – whether the Authority should have made enquiries about the authenticity of the documents – where inquiry not “obvious” or directed at a “critical fact” – where applicant contends that Authority decision was made without power because he is not an “unauthorised maritime arrival” for the purpose of s 5AA of the Act – where applicant identifies a series of arguments that have previously been discredited and/or which have no application to his case no jurisdictional error identified – application dismissed with costs Legislation: Migration Act 1958 (Cth), ss 5, 5AA, 46A, 189, 196, 197AB, 473DC Cases cited: AMT17 v Minister for Immigration and Border Protection [2021] FedCFamC2G 112
DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177; [2021] HCA 12
DHA16 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 1443.
EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1012
EIB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 5) [2020] FCCA 1189
FFZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1
GGD18 v Minister for Home Affairs (No 3) [2019] FCCA 444
Minister for Immigration v SZIAI (2009) 259 ALR 429; [2009] HCA 39
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005; [2023] HCA 37
Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51
Division: Division 2 General Federal Law Number of paragraphs: 90 Date of last submissions: 20 February 2024 Date of hearing: 20 February 2024 Place: Melbourne Applicant: In person Counsel for the First Respondent: Mr J. Barrington Solicitor for the Respondents: Clayton Utz ORDERS
MLG 2284 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DAR20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
25 MARCH 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application filed on 1 July 2020 be dismissed.
3.The applicant pay the first respondent’s costs fixed in the amount of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS:
INTRODUCTION
In this matter, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (the Authority) dated 29 May 2020. The Authority affirmed a decision of a delegate of the first respondent (the Minister) not to grant the applicant a Safe Haven Enterprise Visa (the visa).
BACKGROUND
The applicant is a citizen of Iran. He arrived in Australia on 30 November 2012.
On 10 December 2012 the applicant participated in an irregular maritime arrival entry interview.[1]
[1] Court Book (CB) 1-16.
On 9 June 2017, the applicant applied for the visa with assistance from a community legal centre in Melbourne.[2] The applicant’s claims were set out in a statutory declaration accompanying the application as follows:[3]
[2] CB 22.
[3] CB 65-68.
·The applicant is a citizen of Iran and grew up as a Muslim in Masjed Soleiman with his parents and three siblings.
·He had an Iranian passport, but it was taken by the people smugglers during his journey to Australia. The date of birth displayed on all of his Australian-issued identification cards is incorrect. More generally, the dates contained in his statement are only approximate as they relate to events that happened a long time ago and the applicant’s depression has impacted on his memory.
·In 2009, he and his friends were accidentally caught up in a Green Movement protest which the police shut down. The applicant fled from the police despite not being involved in the protest. He was captured by the police and taken to the Basij. The Basij swore at and hit the applicant and detained him for three days.
·Following his release by the Basij, the applicant attended Court. Although the Court found that he had not done anything harmful during the protest, the applicant’s family had to pay a bond as a promise that the applicant would not attend another protest.
·Going forward, on each occasion that there was an uprising or the threat of an uprising, the police would ask the applicant to attend Court by sending a summons to his house. This happened twice after the arrest in 2009.
·In late 2009, the applicant attempted to depart Iran for France. He had a valid visa but was stopped by authorities who took his passport and detained the applicant at the airport for 24 hours. The applicant’s father had to provide his pay details as security so that the applicant could leave.
·After his arrest in 2009, the applicant became hateful of Islam. In around 2011 or 2012, he met someone named “R” who organised classes at his house to discuss atheism. The applicant became convinced that atheism was the path he wanted to take. He attended weekly classes with “R”, and a group of 5-7 people, for about a year.
·On around 18 June 2012, the applicant learnt through “R’s” brother that “R” had been arrested. That same day, the applicant fled to Tehran because he was scared that he would also be arrested and sentenced to death for his atheist beliefs, including because “R” would be forced through interrogation and torture to reveal the applicant’s name.
·While the applicant was in Tehran, his brother sent a message through the applicant’s friends that a summons had arrived asking the applicant to attend the police station for questioning.
·After a few days in Tehran, the applicant arranged to travel to Australia. He was able to depart Iran because a friend bribed the airport police beforehand.
·Since arriving in Australia, the applicant’s brother has received a number of summons issued to the applicant. The last summons said that if the applicant failed to attend the police station he would be arrested. The applicant’s family has moved from the area where they used to live because the police and the Sepah used to come and go all the time asking about the applicant and his whereabouts.
·Since coming to Australia, the applicant has continued to speak about his atheist beliefs. If he was to return to Iran, he would still be an atheist and would want to publicly express his views.
·The applicant apprehends that if he is forced to return to Iran he will be charged with apostasy by the authorities (the police, Sepah or Basij) because of his atheist beliefs and sentenced to death.
On 7 November 2019, the applicant participated in a SHEV interview with the assistance of an interpreter in the Farsi and English languages.[4]
[4] CB 115.
Following the interview, the delegate requested that the applicant obtain an English translation of a document and provide a written submission.
On 11 November 2019, the applicant’s newly appointed legal representative sought advice from the delegate as to the matters of concern identified by the delegate during the interview.[5]
[5] CB 123.
On 13 November 2019 the delegate sent the following response by email to the applicant’s legal representative:[6]
…
[The applicant] has not provided any evidence at all to support his claims.
He claims to be an atheist, hence fears persecution. He claims to have received a number of summons to attend courts in Iran. He provided a court verdict issued to his name, and another summon in Farsi, which needs to be translated by a NAATI accredited translator.
As his Migration Agent, please look at his claims in his application, and if you’d like, you can request an interview recording to listen, and respond, to issues I raised in this interview.
Please make your request in writing if you need time extension.
[6] CB 129.
On the same day, the applicant’s legal representative sought an extension of one week to provide a submission, which extension was granted by the delegate.[7]
[7] CB 132.
On 25 November 2019, the applicant’s legal representative sent the delegate a submission and supporting documents in the form of an English translation of a “Notice of Summons” dated 4 August 2012 (and a copy of the original)[8] and an English translation of a “Notice of Summons” dated 12 August 2012 (and a copy of the original).[9] The submission also attached a selection of country information concerning protests in Iran.
[8] CB 149-150.
[9] CB 151-152.
The written submission reiterated the applicant’s claim to be an atheist. It stated that two summonses had been served at the applicant’s address: the first on 6 August 2012 and the second on 13 August 2012. The applicant had departed Tehran on 12 August 2012.[10]
[10] CB 146.
The written submission noted that the summonses did not specify the nature of the allegations but contained a request that the applicant attend the police station “to explain a few matters”. The written submission referred to the applicant’s claim that he had been sentenced to five years for “gathering and colluding against the national security” and three years for “disrespecting Islam”. The submission noted that the applicant had provided a copy of a court order and the English translation during the SHEV interview.[11]
[11] CB 147.
The written submission explained that because the applicant had fled Iran, the charge of disrespecting the prophet Mohammad had not been established against him. However, if he was to return to Iran, he would be charged with blasphemy and disrespecting the prophet Mohammad, which carries the death penalty.[12]
[12] CB 147.
On 20 April 2020, a delegate of the Minister refused to grant the applicant the visa.[13] The delegate accepted that the applicant had been caught up in a Green Movement protest and detained and questioned by the Basij for three days. The delegate also accepted that the applicant was an atheist. However, the delegate found that the applicant did not have an adverse profile with the Iranian authorities due to his religious views, or due to his being a non-believer.
[13] CB 197-216.
The delegate was especially concerned that the two summons (dated 4 August 2012, 12 August 2012 and 19 August 2018) had not been mentioned in the applicant’s arrival interview or provided with his SHEV application. Further, the applicant had not identified the court summons in response to the SHEV character question, “have you been charged with any offence that is currently awaiting legal action?”. The delegate did not consider it plausible that having received multiple summons and whilst his home was under watch, the applicant was able to leave Tehran airport on his own passport.
REFERRAL TO THE AUTHORITY
On 23 April 2020, the decision of the delegate was referred to the Authority for fast-track review under Part 7AA of the Migration Act 1958 (Cth) (the Act).[14]
[14] CB 218.
On 4 May 2020, the applicant’s legal representative made a request in writing for an audio-recording of the entry interview and the SHEV interview, the protection visa application form, statement of claim and submissions.[15]
[15] CB 232.
On 5 May 2020, having established that the applicant’s legal representative was appointed by the applicant as his representative and authorised recipient, the Authority administratively released to him the decision record, the refusal notification, the SHEV application and “documents provided in support of application”, the arrival interview (audio) and the protection interview (audio). The Authority informed the legal representative that requests for other information would need to be the subject of an application made under the Freedom of Information Act.[16]
[16] CB 237, 243-244.
On 14 May 2020, the applicant’s legal representative provided a written submission to the Authority.[17] The submission challenged a number of the findings recorded by the delegate concerning the profile of the applicant.
[17] CB 245-250.
DECISION OF THE AUTHORITY
On 29 May 2020, the Authority affirmed the delegate’s decision to refuse the applicant the visa and provided a written statement of Decision and Reasons (Reasons).[18]
[18] CB 256-268.
The Authority acknowledged that it had had regard to the material given by the Secretary under s 473CB of the Act and recorded that it did not consider the submission provided by the applicant’s representative to be new information.[19]
[19] Reasons, [2]-[3].
The Authority accepted the applicant’s account of his being caught up in the Green Movement protest, and the subsequent abuse and brief imprisonment he experienced. The Authority accepted that the applicant’s experiences following the protest contributed to his growing dislike of Islam and shift towards atheism.[20] However, the Authority did not accept that those experiences would place the applicant at risk of attention from authorities were he to return to Iran. This finding was informed by:[21]
(a)The fact that the applicant had been released by the court after paying a bond and giving an undertaking that he would not participate further in any protests or demonstrations;
(b)The lack of any claim that the applicant had experienced any further adverse interest by the authorities as a result of the 2009 incident;
(c)The fact that over ten years had passed since the applicant was arrested and detained;
(d)Country information to the effect that those people arrested in connection with the Green Movement would have little profile in Iran today.
[20] Reasons, [8].
[21] Reasons, [9] and [12].
The Authority accepted that the applicant identified as an atheist.[22] However, the Authority had “significant concerns” about the credibility of the applicant’s claim that court summonses had been issued in his name and he had been convicted in absentia of crimes related to the denouncement of Islam.[23] These concerns were identified as:[24]
(a)The failure of the applicant to refer to the summons in his entry interview;
(b)The failure of the applicant to include original copies of the summonses with his SHEV application;
(c)Inconsistencies in the claimed dates on which the applicant left Iran for Australia and the relationship between those dates and the issue of the summonses in August 2012;
(d)The date on which the applicant’s drivers’ licence was issued (6 September 2012) which cast doubt on when, in fact, the applicant left Iran;
(e)Variations in the applicant’s account as to what he knew of “R’s” arrest;
(f)The applicant’s negative response to the question on his SHEV application “have you been charged with any offence that is currently awaiting legal action”;
(g)The failure of the applicant to have made any effort to find out what had happened to “R” or “R’s” brother.
[22] Reasons, [13].
[23] Reasons, [16].
[24] Reasons, [17]-[25].
As far as the two summons documents were concerned, the Authority noted that there was nothing on their face to indicate that the police wanted to question the applicant about his religious views or that these enquiries were a preliminary legal step to the applicant being charged with any offence.[25]
[25] Reasons, [26]
The Authority had greater misgivings about the document headed “Verdict”. The Authority noted that had the applicant been charged with the very grave offences he claimed, it would have expected that a summons issued by a competent court would have been served at the applicant’s address requesting that he appear in court in the near future.[26]
[26] Reasons, [27].
The Authority did not accept that the “summons” or “Verdict” documents were genuine documents having regard to country information to the effect that paper-based documents, including court documents and summonses, are relatively easy to obtain through fraudulent means. The Authority placed no weight on them.[27]
[27] Reasons, [28].
The Authority took issue with the applicant’s account of how he exited Iran. The applicant claimed to have been assisted by a friend to bribe his way out of Imam Khomeini airport for US$2,000 because he was afraid the police would stop him leaving because of the summons. The Authority found this claim to lack credibility, noting that country information indicated that it would have cost the applicant more than US$2,000 to bribe his way out of the airport if he was of sufficient interest to the authorities for them to put in place a travel ban, or to otherwise seek to block his departure.[28]
[28] Reasons, [29].
As noted earlier, the Authority accepted that the applicant was an atheist and if he returned to Iran, he would continue to hold those views. However, the Authority found that the prospect of the applicant’s views about religion coming to the attention of the Iranian authorities was remote.[29]
[29] Reasons, [36].
In coming to this conclusion, the Authority recorded the following at Reasons, [35]:
The applicant claims that if he had to return to Iran, he would still be an atheist and would want to publicly express that. I consider that statement entirely self-serving. I have found his claims about involvement in an atheist discussion group not credible. The applicant does not claim that he publicly expressed atheist or anti-Islam views in Iran nor that he has been involved in any activity of that nature in Australia. He does claim in his SHEV statement that since he arrived in Australia he has been talking to his friends about atheism and reading about it on the internet but hasn’t attended classes because he’s been depressed. I accept that he may have spoken to his friends in Australia about his views and may have done some reading. What kind of atheist classes the applicant might have attended but for his depression is not stated and this was not a matter he referred to in his SHEV interview. I do not accept that claim. I accept the applicant has sincere views about personal freedom, the role of logic and of the natural world, and Islam, and that he has discussed these matters in private with friends in Australia, and may have discussed them to a limited extent with family and friends in Iran. However, on his evidence, he has held these views for many years without, on my findings, experiencing any issues. I am not satisfied on the evidence that he has any sort of intention, commitment or desire to express his views more broadly or publicly if he returned, not because he is fearful of doing so but because these are essentially personal, private matters. The applicant does not claim that his non-observant status was ever noted by the authorities in Iran or that he was ever questioned about it which is consistent with the advice from DFAT referred to above that the authorities pay little attention to whether a person observes Islam (goes to mosques, participates in Islamic rituals) and that religion is viewed as essentially a private matter.
The Authority accepted the applicant’s claim that he no longer had a passport because it was taken by the people smugglers, as plausible. The Authority considered whether the applicant would experience any difficulty should he be returned to Iran on a laissez-passer (temporary travel document). The Authority was not satisfied that the applicant was at risk of harm during the return process given its earlier finding that the applicant was not of any adverse interest when he left Iran and having considered country information about the flow of Iranians into and out of Iran each year.[30]
[30] Reasons, [44]-[45].
The Authority found that the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and did not meet s 36(2)(a).
The Authority was also not satisfied that there was a real risk the applicant would suffer significant harm if he returned to Iran for any of the reasons claimed. This conclusion largely reflected findings made by the Authority in the refugee context.[31]
[31] Reasons, [51]-[52].
APPLICATION FOR JUDICIAL REVIEW
On 1 July 2020, the applicant made an application to this Court for judicial review of the Authority’s decision. The grounds identified in the applicant’s written application have been reproduced and attached to this judgment as “Annexure A”.
The application document identifies the relief sought by the applicant as follows:
1.Relief in the nature of a Declaration, by virtue of ground (1)(a)-(d), that the decision by the IAA was vitiated by jurisdictional error, as the applicant was not a UMA’s or fast track review applicant as defined by section 5, section 5AA or section 189 of the Migration Act 1958 (Cth). As a consequence, the decision made by the IAA was beyond power and invalid.
2.Relief in the nature of a Declaration, by virtue of ground (2)(a), that the decision by the Minister to detain the applicant pursuant to section 189; section 196 and/or section 197AB of the Migration Act 1958 (Cth), first in closed detention and then open detention from June 2013, was invalid, as the exercise of power by the Minister was beyond the statutory and non-statutory of the Commonwealth of Australia and/or international law, as adopted or incorporated into Australia law.
3.Relief in the nature of a Declaration, by virtue of ground (2)(b), that the decision by the Minister to exercise power and commence the relevant inquires into Australia’s protection obligations with regard to the applicant and the decision itself, was not made as soon as reasonably practicable and as such, the detention applicant was unlawful.
4.Relief in the form of a Writ of Certiorari, bringing the decision by the IAA into this Court to be quashed.
5.Relief in the form of a Writ of Mandamus, transferring the application for review of the SHEV decision made by the IAA into the Administrative Appeals Tribunal, for re-determination according to law.
6.Relief in the form of a Writ of Prohibition, restraining the Minister and/or the officers, delegates, agents, employees or contractors of the Minister, from acting upon or giving effect to the decision made by the IAA.
7.Relief in the nature of Damages for the false imprisonment of the applicant in closed and then community detention from 2013 until the present day, on an aggravated and exemplary basis.
8.Relief in the form of an Order for Costs, pursuant to statute.
As would be immediately apparent, the case sought to be prosecuted by the applicant, by reference to his application document, does not involve an orthodox judicial review application. Indeed, the first of the two principal grounds identified in the application invites the Court to find that the decision of the Authority was beyond power and therefore invalid.
The application document has the appearance (at least superficially) of being prepared by the applicant (his name, residential and email address appear on the face of the document). However, at hearing, my suspicion that the applicant did not in fact prepare the document and consequently, did not have any familiarity with or understanding of the arguments and claims recorded in it, was confirmed. It became clear early on that the applicant’s primary concern was with the findings recorded in the decision of the Authority. Despite this, when I asked the applicant if he wished to maintain the arguments contained in his application document, he told the Court that he did. I will therefore address these arguments later in these reasons.
The arguments made orally by the applicant at hearing
The matter was listed for final hearing on 20 February 2024. The applicant was self-represented and derived assistance from an interpreter in the Farsi and English languages. The Minister was represented by Mr Barrington of counsel.
I invited the applicant to speak to the grounds of review which he believed should have been included in his application to this Court. Although the Minister opposed an adjournment of the hearing he indicated, through counsel, that he was in a position to respond to the issues raised orally by the applicant that same day.
The applicant’s submissions involved a challenge to the following four aspects of the Authority’s decision:
First, the findings recorded by the Authority (at Reasons, [9] and [21]) about the date of issue of his Iranian driver’s licence.
Second, the findings recorded by the Authority (at Reasons, [29]) about the ability of the applicant to leave Iran on his passport upon the payment of a bribe.
Third, the findings recorded by the Authority (at Reasons, [35]) about the applicant’s claims to have practised atheism in Australia and Iran and his claim that he would be vocal about his atheist beliefs on any return to Iran.
Fourth, the findings recorded by the Authority about the content of and authenticity of the summons and Verdict documents.
Driver’s Licence
The applicant told the Court that he had applied for his Iranian driver’s licence one year prior to his departure from Iran. He explained that the application date and issuance date are different and submitted that this may have caused some confusion for the decision-maker. The applicant told the Court that, generally speaking, he had difficulty recalling the dates on which events, some of which occurred over 12 years ago, had occurred. He attributed this to being “human”.
The Minister submitted that the driver’s licence issue cast further doubt on when in fact the applicant had left Iran. Insofar as the issuing of and application for the applicant’s driver’s license related to the timing of the applicant’s departure from Iran, the Minister submitted that the reasons clearly demonstrated that the Authority considered the issue of the driver’s license and had a rational basis for arriving at its finding in relation to timing.
Payment of bribe for departure
The applicant told the Court that the Authority was wrong to find that a bribe in the amount of US$2,000 would not have secured his departure if he was genuinely of interest to authorities. This was because, according to the applicant, it is a matter of luck in Iran how much money is required to secure a bribe and that in his case, the amount claimed had in fact been enough to facilitate his departure.
The Minister submitted that the findings recorded by the Authority at Reasons, [29] disclosed a rational approach to the disposition of the applicant’s claim to have departed Iran upon the payment of a bribe.
Expression of views on atheism
The applicant told the Court that he had an explanation for his failure to attend meetings about atheism in Australia (being that his girlfriend suffers from schizophrenia and is very unwell and can’t leave the house) which explanation the Authority failed to take into account when it recorded unfavourable findings about his commitment to atheism at Reasons, [35].
The Minister submitted that the Authority had identified the atheism claim and disposed of it for reasonable and rational reasons.
Findings concerning the applicant’s documents
The applicant told the Court that the “Verdict” document had been misinterpreted and as a result this had raised doubts for the decision-maker who was concerned that it did not cover atheism. According to the applicant, the document made reference to “contempt to holy affairs or prophet”.
The applicant also challenged the failure of the Authority to investigate the provenance and authenticity of the summons documents in circumstances where the Authority had suggested that they might have been obtained fraudulently. The applicant noted that the summons documents bore a seal and sign of the authority and had a reference number. The applicant told the Court that he had invited the delegate to “check with the authority” but the delegate had declined to do so. The applicant submitted that inquiries should have been made with the Australian embassy as it was a “matter of life or death” for him.
The Minister accepted that mistranslation could result in jurisdictional error if it led to the decision-maker not understanding the gist of what had been put forward by an applicant. The Minister referred in this context to the decision of DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177 but noted that success would require evidence of the alleged mistranslation, which was absent in this case. The factual premise of the argument had not been established.
As far as the applicant appeared to contend that the Authority should have made inquiries about the authenticity of the Verdict document, the Minister submitted that the reasonableness of the Authority’s actions should be evaluated in a statutory context that included the extremely confined opportunity afforded the Authority to “get” new information under s 473DC of the Act. Further, to the extent that a Minister for Immigration v SZIAI[32] analysis might apply, the Minister submitted that the inquiry of the Iranian authorities in this case was not an obvious one in circumstances where the Authority had other reasons to doubt the authenticity of the document. It was also, according to the Minister, not an easy inquiry to make given that the exercise of calling up an Iranian authority would no doubt, amongst other things, require the use of an interpreter. The nature of this inquiry was distinct from that which the High Court in Wei v Minister for Immigration and Border Protection[33] considered should have been made.
[32] (2009) 259 ALR 429.
[33] (2015) 257 CLR 22.
CONSIDERATION OF THE APPLICANT’S NEW ARGUMENTS
I am not persuaded that the approach taken by the Authority to the date recorded on the applicant’s driver’s licence involved legal error. The Authority was entitled – in the absence of any evidence or explanation to the contrary – to proceed on the basis that the issue date of the driver’s licence corresponded, at least approximately, to the date of application. It followed, and this was the matter of concern to the Authority, that there was a discrepancy in the account provided by the applicant in his entry interview as to the date of issue (refer CB 4, where the applicant stated that it had been issued seven to eight months ago) and a discrepancy in the date of the applicant’s departure (variously June and August 2012). This provided a rational and additional basis for the Authority to hold concerns about the credibility of the applicant’s claim to have departed Iran because he feared reprisals from his practice of atheism, where the temporal relationship between events (especially, the discovery of the arrest of “R” and the issue of the two summons) was central to this claim.
As far as the applicant takes issue with the findings recorded by the Authority at Reasons, [29], I consider that the country information referred to by the Authority, which was published at a time proximate to the applicant’s date of departure from Iran (February 2013, compared with June or August 2012), supplied a probative basis for the Authority’s conclusion that the applicant’s account of the amount paid on his account to secure his departure was not credible. It is not controversial in this regard that the choice of and weight given to country information is a matter reserved to the decision-maker.[34]
[34] DHA16 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 1443, [46]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, [11].
The difficulty with the applicant’s contention that the Authority failed to take account of his explanation for why he had not left the house to participate in atheist classes is that there is no evidence before me that this was an explanation that the applicant offered to either the delegate or to the Authority. While it appears that the applicant referred to his Australian partner’s condition in the context of supplying a reason why the applicant should be permitted to stay in Australia, I have not been able to identify any reference that operates outside this context.
The Authority considered the applicant’s claim about the impact of separation on his partner should his visa be denied (at Reasons, [38]) but discounted it on the basis of relevance. As far as the applicant’s own mental health (including depression) was concerned, the Authority identified the applicant’s claim but was not satisfied that the applicant was suffering from a diagnosed mental health disorder due to a lack of any supporting documentation (Reasons, [37]).
The applicant contends that due to a translation error, the Authority had doubts about the relationship between the “Verdict” document and the offences (which were religious in nature) allegedly committed by him. However, this is not borne out by the Reasons. Instead, as noted above at [25], the Authority appeared to accept that the “Verdict” document made reference to offences that were grave in nature. The Authority was however concerned about the process (or lack of process) that followed the issuing of this document which led it to doubt that the applicant had in fact been charged as he claimed. Any translation error (of which there is no evidence) was not material.
The applicant also contends that the Authority should have taken steps to verify the authenticity of the summonses and the “Verdict” document. The Authority had the power pursuant to s 473DC of the Act to “get” information directed at the authenticity of the documents. The question that arises in the context of a Part 7AA review is whether the failure of the Authority to exercise this power was unreasonable.
I accept in this case that it was not unreasonable for the Authority to refrain from approaching the Iranian authorities with questions about the applicant’s documents. This case did not involve an “obvious” inquiry in the sense that information derived from the inquiry was the missing piece of the Authority’s analysis. The Authority identified separate concerns, of an independent character, with respect to both the summonses and the “Verdict” document. It is also not clear to whom such inquiries would be directed and how easily they could be facilitated.
In the decision of Wei, referred to by the Minister, the “obvious” inquiry would have yielded an authoritative and direct response to the question of whether Mr Wei had ceased his enrolment as a student. This question was described as a critical fact, in the context of the visa cancellation decision and could be carried out with “relative ease” by picking up the telephone and requesting the university to check Mr Wei’s enrolment status.[35]
[35] Wei at [51], per Nettle J.
Further, the applicant in his submission to the Authority did not request or even suggest to the Authority that it should take steps to verify the documents. The submission read:[36]
The fact that the delegate was unable to verify the genuineness of the court summonses does not necessarily suggest that they are no (sic) genuine. The delegate found that applicant credible in several aspects. In the protection visa interview, the applicant provided a very detailed and consistent account of how the summonses and court orders were issued. On this basis it was appropriate in the circumstances to give the applicant the benefit of the doubt.
[36] CB 250.
The approach adopted by the Authority to the assessment of the documents did not depart materially from the approach identified by the applicant.
I am not satisfied for the reasons set out above that the applicant has established jurisdictional error in the decision of the Authority arising from the matters raised orally by him at the hearing.
CONSIDERATION OF THE ARGUMENTS IDENTIFIED IN THE APPLICATION FOR REVIEW
As noted earlier, the applicant did not make any submissions directed at the grounds identified in his application document so that no assistance has been derived by him in considering their merit.
The Minister, on the other hand, filed detailed written submissions directed at these grounds on 6 February 2024 as well as an affidavit of Andrea Anastasi affirmed on 6 February 2024 (Anastasi affidavit) which annexed a bundle of documents comprising copies of screenshots from the Department’s computer databases showing the applicant’s visa history and detention history, a copy of a detention notice dated 1 December 2012 and an email chain regarding the interception of vessel SIEV 551 (Annexure “ANA-1”).
The Minster’s counsel did not address these submissions orally at the hearing, but I understood the Minister to rely on them to the extent that the original application was still pressed by the applicant.
Two grounds are identified in the application. I will deal with them sequentially.
Ground one
The first ground alleges that the decision of the Authority is vitiated by jurisdictional error because the applicant was not an unauthorised maritime arrival or a “fast track review applicant”. This is said to be because: (i) the “notice of detention” was beyond power and invalid; (ii) the applicant was first detained on a vessel registered to Canberra; (iii) the purported appointment of Christmas Island as a proclaimed port was invalid; (iv) the purported appointment of Ashmore Reef as a proclaimed port was invalid; and (v) the applicant was taken to Darwin for medical treatment after he was rescued at sea.
The Minster submits, and I accept, that on the facts of this case, the complete answer to this ground can be found in an analysis of whether the applicant met the criteria for an unauthorised maritime arrival contained in s 5AA of the Act. This provision relevantly provides:
Meaning of unauthorised maritime arrival
(1)For the purposes of this Act, a person is an unauthorised maritime arrival if:
(a)the person entered Australia by sea:
(i)at an excised offshore place at any time after the excision time for that place; and
(ii)at any other place at any time on or after the commencement of this section;
Entered Australia by sea
(1)A person entered Australia by sea if:
(a) the person entered the migration zone except on an aircraft that landed in the migration zone…
(b) …
(c) the person entered the migration zone after being rescued at sea.
The evidence before the Court records that the applicant arrived at Christmas Island by boat on 30 November 2012 after the vessel in which he was travelling (SIEV 551) was intercepted by Border Protection Command and those onboard (including the applicant) were transported by boat to the Territory of Christmas Island.[37]
[37] Annexure “ANA-1”.
I find that the circumstances of the applicant’s arrival at Christmas Island meant that he “entered Australia by sea” and that he did so “at an excised offshore place” after the excision date which, for Christmas Island, is defined at s 5(1) of the Act to mean “2pm on 8 September 2001 by legal time in the Australian Capital Territory”. This means that the applicant met the criteria for an unauthorised maritime arrival under s 5AA(1)(a)(i) of the Act.
It is further the case that in circumstances where, on 3 June 2016, the Minister gave the applicant written notice under s 46A(2) of the Act that s 46A(1) of the Act did not apply to prevent him from making a valid application for the visa[38] and where, on 18 July 2017, the applicant made a valid application for the visa,[39] the applicant satisfies the definition of “fast track applicant”.
[38] CB 17.
[39] CB 78.
Further, there being no finding by the delegate or any evidence that would suggest the applicant is an “excluded fast track review applicant”, it is also the case that the applicant is a “fast track review applicant” within the meaning of s 5(1) of the Act. The Authority therefore had jurisdiction to conduct a review of his matter.
As far as the other matters raised under cover of ground one are concerned, they each fail because the legal premise upon which they rely has been discredited and/or they rely on facts which have no application to this case.
For example, the applicant contends that the notice of detention given to him, on a time or date to be adduced, by an officer of the Minister, was beyond power and therefore invalid. The suggestion appears to be that the invalidity of the notice follows from it having been issued and dated “prior to the applicant’s family entering the territorial waters and jurisdiction of the Commonwealth of Australia”.
There are two difficulties with this contention. First, factually, the reference to the applicant’s family is impossible to place in the circumstances of this case. The applicant arrived on Christmas Island as a sole traveller. There is no mention of his family being in Australia in any of his material.
The second difficulty is that while the Minister has put in evidence a notice of detention issued to the applicant on 1 December 2012 under s 189(3) of the Act,[40] nothing in the Act requires a notice of detention to be given to a person prior to their detention. The date on the notice or when the notice is in fact given to an applicant can therefore have no bearing on the validity of the detention (or for that matter, the declaration that the applicant is an unauthorised maritime arrival).
[40] Annexure “ANA-1”.
The applicant also contends that the rescue vehicle that transported him to Christmas Island carried the flag of the Commonwealth of Australia and was registered in Canberra, with neither Canberra nor the ACT being an “excised offshore place” for the purposes of the Act. He appears to contend that this is a further reason why he could not satisfy the definition of unauthorised maritime arrival.
This same argument was considered by Judge Blake in AMT17 v Minister for Immigration and Border Protection [2021] FedCFamC2G 112 at [45] his Honour disposed of the argument as follows:
There is an immediate difficulty with this submission. Under section 5AA of the Act, a person enters Australia if they have entered the ‘migration zone’. The ‘migration zone’ is not defined to include or refer to the location where a ship is registered. There is a further problem confronting the Applicant. Even if it could be assumed that the Applicant was ‘in Australia’ from the time he was rescued, that does not deal with the issue under section 5AA of the Act. It is to be remembered that section 5AA(1)(a) of the Act deals with the question of when a person ‘enters’ Australia. There seems to be little doubt that the Applicant entered Australia for the purposes of section 5AA(1)(a) of the Act at least from the time he arrived on Christmas Island.
This analysis applies with equal force in this case.
The applicant next contends that the declaration of the port on Christmas Island is invalid. This argument has been considered and rejected by this Court on multiple occasions.[41] The applicant identifies no reason why these decisions should be revisited. The argument has no merit.
[41] See, for example, AMT17 at [47]; GGD18 v Minister for Home Affairs (No 3) [2019] FCCA 444 at [40]; FFZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1 at [29]-34]; EIB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 5) [2020] FCCA 1189 at [29], [36]-[41] and EGZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1012 at [20].
The applicant’s argument that the purported appointment of Ashmore Reef as a proclaimed port was invalid has no merit. The applicant disembarked at Christmas Island.
Likewise, the applicant’s argument that after he was rescued at sea by the Australia authorities, the applicant was taken to Darwin for medical treatment (with Darwin not being an “excised offshore place”) goes nowhere when it is incontrovertible that the applicant “entered Australia” at Christmas Island.
There is no merit to any aspect of ground one.
Ground two
The second ground alleges that the decision by the Minister to detain the applicants (sic) pursuant to section 189; section 196 and/or section 197AB of the Act was unlawful.
However, as the Minister submits, to the extent that the particulars to this ground allege that the relevant sections of the Act are beyond power and invalid, it is the case that this issue was considered recently by the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37.
I accept that the limits placed on ss 189 and 196 of the Act as a result of the decision in NZYQ do not have application to the facts of this case. Here, the detention powers were engaged for the purpose of an enabling an application for permission to remain in Australia to be made and considered (compare, NZYQ at [46]).
Further, where, as the Minster submits, the applicant was released from immigration detention in September 2013,[42] and makes no complaints about his current detention (which commenced on 3 May 2023), there is no merit in this second ground of review.
[42] Annexure “ANA-1” to the Anastasi affidavit
CONCLUSION
In circumstances where the applicant has been unsuccessful in his application for judicial review, it must follow that the application be dismissed, with an order that the applicant pay the Minister’s costs in a fixed amount reflecting the Court Scale.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 25 March 2024
ANNEXURE A
Ground 1: The decision by the Minister to designate the applicant as a UMA or fast review applicant was beyond power and as a consequence the decision by the IAA was invalid
2.The decision by the IAA is vitiated by jurisdictional error as the applicant was not a UMA or fast track review applicant as defined by section 5, section 5AA or section 189 of the Migration Act 1958 (Cth). As a consequence, the decision by the IAA made on 12 October 2018 was beyond power and invalid for the following four grounds.
a) First, on a time a date to be adduced, an officer for the Minister issued a notice of detention to the applicant and other persons on board the Suspected Illegal Entry Vehicle (SIEV). At the material time, the officer to the Minister issued and dated the notice of detention prior to the applicant’s family entering the territorial waters and jurisdiction of the Commonwealth of Australia. The notice of detention was beyond power and therefore invalid.
b) Second, at the material time of the entry of the applicant’s into Australia on board the SIEV, an officer for the Minister placed the applicant under the jurisdiction of a search and rescue operation by the relevant Australian authorities. As a consequence, the applicant was not a UMA’s for the purposes of section 5AA or section 189 of the Migration Act 1958 (Cth).
c) Third, the detention of the applicant and the SIEV he was traveling on, by way of a vessel commanded by officers belonging to the Commonwealth of Australia, carrying the flag of the Commonwealth of Australia, which is registered to Canberra, in the Australian Capital Territory (ACT) of the Commonwealth of Australia, was beyond power and invalid. At the material time, neither the vessel belonging to the Commonwealth of Australia or the ACT were excised offshore places as defined by section 5 of the Migration Act 1958 (Cth).
d) Fourth, the port on Christmas Island was declared by the Minister a port on 22 January 1981. Section 3 of the Migration Amendment Act (No 2) 1980 (Cth), which provided the power to proclaim a port on Christmas Island, came into effect a day later, on 23 January 1981. As a consequence, the purported appointment by the Minister of a port as a proclaimed port, in respect of the area of waters within the Territory of Christmas Island, by notice published in the Commonwealth of Australia Gazette on 22 January 1981, was invalid.
e) Fifth, the purported appointment of a port as a proclaimed port, in respect of an area of waters within the Territory of Ashmore and Cartier Islands, by notice published in the Commonwealth of Australia Gazette No. GN 3 on 23 January 2002, is invalid.
f) Sixth, after the applicant was rescued at sea by the Australian authorities, the applicant was taken to Darwin for medical treatment. At the material time, Darwin was not an excised offshore places as defined by section 5 of the Migration Act 1958 (Cth).
Particulars
The search and rescue operation by Australian authorities
i)At a time and date to be adduced, the applicant departed Iran by plane for Indonesia and shortly after, the applicant departed Indonesia for Australia by way of a boat, (SIEV).
ii)Ata time and date to be adduced, the Australian Maritime Safety Authority Joint Rescue Coordination Centre and (AMSA) and the Rescue Coordination Centre (RCC) belonging to Border Protection Command (BPC) made contact with persons onboard the SIEV within the Indonesian Search and Rescue Region and outside the territorial waters of the Commonwealth of Australia near Christmas Island.
iii)At a time and date to be adduced, AMSA RCC accepted coordination of the search and rescue operation. At the material time, the people on board the SIEV, including the applicant, became formally subject to a search and rescue operation by the relevant Australian authorities.
iv)At a time and date to be adduced, officers from an Australian vessel operating under the command of AMSA RCC, located, boarded and detained the SIEV and the persons onboard, at a location to be adduced. At the material time, there were many hungry and sick people on board and the SIEV was in distress and failing.
The detention of applicants on Christmas Island
v)At a time and date to be adduced, officers of the Minister towed the SIEV to Christmas Island and transferred the applicant and other persons onboard into the custody of the authorities on Christmas Island.
The notice of detention was beyond power and therefore invalid
vi)At a time a date to be adduced, an officer for the Minister issued a notice of detention to the applicant and other persons on board the SIEV.. At the material time, the officer to the Minister issued and dated the notice of detention prior to the applicant entering the territorial waters and jurisdiction of the Commonwealth of Australia. The notice of detention was beyond power and therefore invalid.
The applicant was subject to a search and rescue operation by the Australia authorities
vii)At the material time, the applicant and other persons on board the SIEV were subject to a search and rescue operation by the Australian authorities and were not UMA’s for the purposes of section 189 of the Migration Act 1958 (Cth). The detention of the applicant on board the SIEV was beyond power and unlawful.
The vessel that detained the applicant belonged to the Commonwealth of Australia which was not an excised offshore place for the purposes of the Migration Act 1958 (Cth).
viii)At the material time, the applicant and other persons on board the SIEV, were detained by way of a vessel commanded by officers belonging to the Commonwealth of Australia, carrying the flag of the Commonwealth of Australia, which is registered to Canberra, in the Australian Capital Territory (ACT) of the Commonwealth of Australia. At the material time, neither the vessel belonging to the Commonwealth of Australia or the ACT were excised offshore places as defined by section 5 of the Migration Act 1958 (Cth).
The declaration of the Port on Christmas Island was beyond power and invalid
ix)The port on Christmas Island was declared a port on 22 January 1981. Section 3 of the Migration Amendment Act (No 2) 1980 (Cth), which provided the power to proclaim a port on Christmas Island, came into effect a day later, on 23 January 1981. As a consequence, the purported appointment of a port as a proclaimed port, in respect of an area of waters within the Territory of Christmas Island, by notice published in the Commonwealth of Australia Gazette on 22 January 1981, was invalid.
The declaration of the Port on Ashmore reef was beyond power and invalid
x)The purported appointment of a port as a proclaimed port, in respect of an area of waters within the Territory of Ashmore and Cartier Islands, by notice published in the Commonwealth of Australia Gazette No. GN 3 on 23 January 2002, is invalid.
The rescue of the applicant and the provision of medical treatment in Darwin
xi)After the applicant was rescued at sea by the Australian authorities, the SIEV sunk and the applicant was taken to Darwin for medical treatment. At the material time, Darwin was not an excised offshore places as defined by section 5 of the Migration Act 1958 (Cth).
The community detention of the applicant and her family
xii)At a time and date to be adduced, the applicant was subsequently released from closed detention and placed into community detention, whereby the applicant experienced restrictions on their liberty which ordinary members do not face and was unlawful.
The applicant was not a “UMA” and a fast track reviewable applicant
xiii)In the premises of ground (1)(a)-(f), the applicant was not “UMA’s or “fast track” review candidate for the purposes of section 5, section 5AA or section 189 of the Migration Act 1958 (Cth).
xiv)At [1] of the decision record, the IAA observed that the applicant lodged an application for a Safe Haven Enterprise Visa (SHEV).
xv)At [2] of the decision record, the IAA observed that a delegate of the Minister for Immigration and Border Protection (the delegate) refused the application.
xvi)In the last paragraph, the IAA upheld the decision by the delegate of the Minister.
xvii)The IAA misunderstood, misconstrued or misapplied its jurisdiction and as a consequence, the decision made by the IAA was beyond power and invalid, giving rise jurisdictional error.
Ground 2: The decision by the Minister to detain the applicants pursuant to section 189; section 196 and/or section 197AB of the Migration Act 1958 (Cth) was unlawful
2(a). The decision by the Minister to detain the applicant pursuant to section 189; section 196 and/or section 197AB of the Migration Act 1958 (Cth), first in closed detention and then open detention from June 2013, was unlawful on the grounds that it is beyond the statutory and non-statutory of the Commonwealth of Australia and/or international law, as adopted or incorporated into Australia law.
2(b). Further, the decision to exercise any statutory or non-statutory power by the Minister, including the Migration Act 1958 (Cth), or the decision to commence any necessary inquiry, including eligibility for the permanent protection criteria or the temporary protection criteria, and the decision itself, must all be made as soon as reasonably practicable. Otherwise, the detention of the applicant and her family is unlawful.
Particulars
i) For the particulars articulated at ground (1)(a)-(d)(i)-(xi).
ii) In so far as section 189; section 196; section 197AB of the Migration Act 1958 (Cth), purported to authorise the detention of the applicants in closed and then open detention from June 2013 until the present day, such detention was not and is not necessary, or reasonably capable of being seen as necessary:
a. for the purposes of their removal from Australia;
b. for the purposes of enabling an application for a visa to be made and considered; or
c. for any other legitimate non-punitive purpose for which the Executive may be validly authorised to detain a non-citizen or alien.
iii) Further or alternatively, at no material time has the duration of the applicants’ detention been capable of objective determination by a court.
iv) Accordingly:
a. in so far as section 189; section 196 and section 197AB of the Migration Act 1958 (Cth) purport to authorise the detention of the applicant and his family, section 189; section 196 or section 197AB of the Migration Act 1958 (Cth) are beyond power and invalid.
b. the decision by Minister to commence inquiries into Australia’s protection obligations with regard to applicant and his family and the decision itself, were not made as soon as reasonably practicable and the applicant’s detention was unlawful.
As a consequence, the closed and then open detention of the applicant and his family by or on behalf of the Minister was unlawful and has been unlawful since June 2013 until the present day.
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