Dde16 v Minister for Immigration
[2018] FCCA 305
•15 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DDE16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 305 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Immigration Assessment Authority affirming a decision of a Delegate of the Minister for Immigration to refuse a Protection visa based on the Applicant’s fear of harm in Iran because of his Baha’i religion, political opinions and as a failed asylum seeker – Applicant fails to identify any jurisdictional error – jurisdictional error not otherwise identified by Court or Minister – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), pt.7AA, ss.5, 5AA, 5H, 36, 46A, 473DB, 473DD |
| Cases cited: AIR15 v Minister for Immigration and Border Protection [2016] FCA 1425 |
| Applicant: | DDE16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2889 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 24 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 15 February 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Mr K Eskerie |
| Solicitors for the Respondents: | Sparke Helmore |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 21 October 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2889 of 2016
| DDE16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Iran aged 30 years, having been born on 14 November 1987.
By Application filed in this Court on 21 October 2016 he seeks to quash and have redetermined the decision of the Second Respondent, the Immigration Assessment Authority (IAA) dated 29 September 2016 (Decision Record) under Part 7AA of the Migration Act 1958 (Cth) (the Act) affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 22 July 2016 refusing to grant to him a Safe Haven Enterprise (Subclass 790) visa (Protection visa).
Background
The Applicant arrived in Australia via Indonesia and Christmas Island as an unauthorised maritime arrival (as defined by s.5AA of the Act) on 9 August 2013. On 6 November 2015 the Minister lifted the bar precluding the Applicant from making a valid application for a visa under s.46A(1) so as to permit him to apply for a visa of a specified class, which he did by making an application for a Protection visa on 21 April 2016.
The Applicant was a “fast track applicant” as defined in s.5(1) of the Act because he was an unauthorised maritime arrival:
a)who entered Australia after 13 August 2012 but before 1 January 2014;
b)who was not taken to a regional processing country;
c)to whom the Minister had given written notice lifting the bar imposed by s.46A(1); and
d)who made, as he did, a valid application for a Protection visa.
Part 7AA of the Act had established a comprehensive scheme commencing on 18 April 2015 for a limited review by the IAA of specified adverse Protection visa decisions, such as the adverse decision of the Delegate refusing to grant to the Applicant a Protection visa in this case.
I do not consider that it is necessary to generally detail and recite the provisions of Part 7AA of the Act because that task has been comprehensively performed by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 (AMA16) per Griffiths J, with the agreement of Dowsett and Charlesworth JJ, at [11] – [27]. This statement in AMA16 of the nature and scope of Part 7AA was cited with evident approval by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ. Further, the IAA did not apply the more limiting features of the Part 7AA regime in that it accepted and considered new information which had not been before the Delegate and invited the Applicant to an interview with the IAA which was held on 20 September 2016 to give new information in support of his application for the Protection visa.
Applicant’s Claims for Protection
The Applicant claimed that he feared harm if he had to return to Iran because of his Baha’i religion, his perceived political opinions in that he held opinions contrary to Iranian morality and social norms, and as a failed asylum seeker.
In his Statement of Claims dated 21 April 2016 which was lodged with his Protection visa application the Applicant claimed that he would be seriously harmed by the Basij and authorities in Iran and there would be no protection for him. He stated that he was of the Baha’i religion, although he had been born a Muslim. He further claimed that just before he left Iran he witnessed the Iranian police arresting people at a Baha’i meeting that he was intending to attend.
The Applicant stated that he had fled Iran and claimed that he would be imprisoned, tortured, interrogated or killed if he were to return to Iran as a Baha’i convert. He claimed he would be unable to settle anywhere in Iran and would not have state protection.
The Applicant also claimed in his Statement of Claims to fear harm because his details were published online as a result of what is known as the “2014 Data Breach” by the Department of the Minister (the data breach). He claimed that the Iranian Government would know that he had sought asylum in a Western country and that by reason of being a failed asylum seeker he would be suspected of being a dissident, and this would result in his being detained and interrogated upon return.
Grounds and Criteria for the Granting of a Protection Visa
A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5] – [7] as follows:
[5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958(Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.
[6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.
[7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.
Decision of the Delegate
The Applicant attended a Protection visa interview with the Delegate on 27 April 2016. In short, the Delegate did not accept that the Applicant had an adverse profile in Iran for reasons relating to religion, or that he had converted or was committed to the Baha’i faith.
The Delegate accepted that the Applicant was now a non-practising Muslim and that details concerning him had been disclosed on the website of the Minister via the data breach.
However, the Delegate did not accept that the Applicant had converted or become committed to the Baha’i faith, had attended Baha’i faith meetings in Iran or had an adverse profile in Iran for reasons relating to religion.
Further, the Delegate was of the view that there was not a real chance of the Applicant being persecuted if he were to return to Iran based on him being a non-practising Shia Muslim, nor as a member of a particular social group, being “Failed asylum seeker from a Western country”.
In relation to the data breach, the Delegate found that while the Applicant’s personal identifying details appeared briefly on the Department’s website, such information did not reveal his claims to protection, or indeed that he had applied for a Protection visa. The Delegate accepted country information that did not support the Applicant’s claim that he would be persecuted if he returned to Iran based on any imputed political opinion due to the data breach.
The Delegate was not satisfied that the Applicant was a refugee as defined by s.5H(1) of the Act or that Australia owed protection obligations to the Applicant under either ss.36(2)(a) or 36(2)(aa) and the Applicant’s application for a Protection visa was refused.
Decision of IAA
On 22 July 2016 the Minister referred the Delegate’s refusal of a Protection visa to the IAA.
I note that in its Decision Record the IAA recorded:
a)that it had accepted for consideration further information provided by the Applicant to the IAA on 12 August 2016 as not being “new information” precluded from consideration by s.473DB(1)(a) of the Act;
b)that it had accepted for consideration new information provided by the Applicant to the IAA because the IAA accepted that there were exceptional circumstances justifying consideration of this new information under s.473DD(a) and (b)(ii); and
c)that it had invited the Applicant to give new information to the IAA at the interview held on 20 September 2016 and that it had given consideration to that information because, again, there were exceptional circumstances justifying consideration of such information.
From [12] – [38] of its Decision Record the IAA recorded the Applicant’s claims as previously made, as made at the IAA interview and as made in the discussion concerning those claims at the interview. At [18] it noted that at the IAA interview the Applicant had said that he did not consider himself a “full Baha’i, but slowly, slowly, yes” and at [19] recorded that the Applicant had said that he sees himself as a “semi-Baha’i”.
In the result the core findings of the IAA in its Decision Record were as follows:
a)The IAA did not accept that the Applicant would face persecution on return to Iran as a Baha’i (see [42]).
b)Whilst accepting that the Applicant had an intellectual interest in Baha’i and was in broad agreement with its overarching philosophy (see [43]), the IAA did not accept that the Applicant was a Baha’i, that he really considered himself to be a Baha’i, that he would declare himself a Baha’i on return to Iran or that he would seek to practise the Baha’i faith in Iran (see [44]).
c)The IAA reiterated that it did not accept that the Applicant would feel compelled to declare himself a Baha’i on return to Iran or that he was in fact a Baha’i (see [48] and [51]).
d)The IAA was not satisfied that the Applicant faced any harm of any kind on return to Iran as a Baha’i or as a person imputed to be a Baha’i (see [54]).
e)The IAA found that the Applicant was not at risk of harm as a non-practising Muslim if he returned to Iran (see [55]).
f)The IAA was not satisfied that there was a real chance that the Applicant would face harm in Iran as a non-practising Muslim, as an apostate or as a person perceived as a religious or political dissident (see [56]).
g)The IAA accepted that Iranian authorities might be aware that the Applicant had applied for asylum in Australia by reason of the data breach but considered that identification as a failed asylum seeker would not result in there being a real chance that he would be subject to harm or adverse attention beyond questioning (see [62]).
The IAA’s ultimate conclusions on the Applicant’s claims to be a refugee were expressed in [63] and [64] of its Decision Record as follows:
[63]I am not satisfied that the applicant faces a real chance of harm on return to Iran because he is, or is suspected to be a Baha'i, as a non-practising Muslim or an apostate, because he is or would be perceived to be a political dissident because of his failure to comply with social or religious norms, as a failed asylum seeker, or because of a profile created by all or any of those factors considered cumulatively.
[64]The applicant does not meet the requirements of the definition of refugee in s.5H(1). The applicant does not meet s.36(2)(a).
Finally, at [69] of its Decision Record the IAA found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Iran there was a real risk that the Applicant would suffer significant harm and that the complementary protection criterion expressed in s.36(2)(aa) of the Act was not applicable to the Applicant and it affirmed the decision of the Delegate not to grant a Protection visa to the Applicant.
Grounds of Attack in this Court on IAA Decision
The Grounds contained in the Applicant’s Application of 21 October 2016 were as follows (verbatim, with numbering added):
1.I’m new member of Bahai religion and I know myself as a bahai person who don’t lies don’t drink and don’ use drugs and don't have sex in these 4 years with anyone until get married. they don’t accept that.
2.I accepted bahai religion with my heart and my soul but in Iran if someboday change his religion its Against the Law and they call you unbeliever and the punishment of this job is prisoners or Execution.
3.I find bahai religion that says people have to live together with peace and unity. bahaullah says let your vision be world embracing.
4.Bahais believe the crucial need facing humanity is to find a unifying vision of the future of society and of the nature and purpose of life.
Consideration
Unfortunately for the Applicant the Grounds entirely fail to assert, identify or particularise any jurisdictional error by the IAA. At the hearing in this Court the Applicant again failed to assert or identify any jurisdictional error.
In these circumstances it is not incumbent on the Court itself to independently consider whether the IAA has committed a jurisdictional error which has not been identified by the Applicant: AIR15 v Minister for Immigration and Border Protection [2016] FCA 1425 at [19] per Beach J; SZFNK v Minister for Immigration and Multicultural Affairs [2006] FCA 1601 at [4] – [5] per Madgwick J and SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 per Reeves J.
Nevertheless, I have considered the Decision Record of the IAA for myself and it appears to me that it treated the Applicant with impeccable procedural fairness and to have made findings that were legally open to it on the material and that its Decision Record constitutes a balanced, careful and comprehensive consideration of the Applicant’s claims for protection.
I further record that the Minister as a model litigant has advised me, through Mr Eskerie who appeared for him at the hearing, in both written submissions and oral submissions, that he had likewise reviewed the Decision Record of the IAA independently and has not otherwise identified any jurisdictional error in the IAA’s decision or in the manner in which the IAA complied with its procedural fairness obligations under Division 3 of Part 7AA of the Act.
Disposition
The Applicant has failed to establish that the decision of the IAA is affected by jurisdictional error and the Application must be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 15 February 2018
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