Deg19 v Minister for Immigration, Citizenship and Multicultural Affairs

Case [2024] FedCFamC2G 324

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DEG19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 324

File number(s): SYG 2140 of 2019
Judgment of: JUDGE CAMERON
Date of judgment: 11 April 2024
Catchwords:

MIGRATION – Application for extension of time to bring proceeding – Relevant considerations.

MIGRATION – Protection Visa – Refusal – Review of Refugee Review Tribunal decision.

Legislation:

Tribunals Amalgamation Act 2015, s 15AG

Migration Act 1958 (Cth), ss 5, 36 91R, 474, 477
Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Division: General
Number of paragraphs: 26
Date of hearing: 7 March 2024
Place: Sydney
Counsel for the First, Second and Third Applicants: Mr O. Jones
Solicitor for the First, Second and Third Applicants: Ehsani Legal
Solicitor for the First Respondent: MinterEllison
Counsel for the Second Respondent: Submitting appearance save as to costs
Table of Corrections
12 April 2024 In second sentence of paragraph 23 the word “respondents” has been corrected to “applicants”.

ORDERS

SYG 2140 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

DEG19

First Applicant

DEH19

Second Applicant

DEI19

Third Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE CAMERON

DATE OF ORDER:

11 APRIL 2024

THE COURT ORDERS THAT:

1.The applicants’ application for an extension of time be refused.

2.The proceeding be dismissed.

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 CAMERON

INTRODUCTION

  1. This judicial review application was filed by a family unit comprising three applicants (Applicants) who are all citizens of Iran and who arrived in Australia by boat on 1 August 2012.  On 15 November 2012 they lodged an application for a protection visa with what is now the Department of Home Affairs (Department), alleging that the first applicant feared persecution in Iran because of his Christian tattoos and his illegal import of, and sale of motorbikes in, Iran and that the second applicant, his wife, allegedly feared persecution in Iran because she had been harassed by the Basij, Iran’s religious and moral enforcement body.  The third applicant was the first and second applicants’ daughter and did not make any claims of her own.  On 14 August 2013 the applicants’ application was refused by a delegate of the first respondent (Minister).  The applicants then applied to the Refugee Review Tribunal (Tribunal), a predecessor of the second respondent, for a review of that departmental decision. They were unsuccessful before the Tribunal and on 20 August 2019 they applied…

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AGLC
Deg19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 324
Case
[2024] FedCFamC2G 324
Decision Date

CaseChat Overview and Summary

In the case of Deg19 v Minister for Immigration, Citizenship and Multicultural Affairs, the applicants, Iranian nationals, sought judicial review of a decision by the Refugee Review Tribunal that dismissed their applications for protection visas. The Tribunal had found that the applicants did not meet the criteria for a refugee or complementary protection visa under the relevant Australian legislation. The applicants argued that the Tribunal had erred in its assessment of their claims, particularly regarding the treatment of the second applicant by the Basij for violations of Islamic dress codes.

The legal issues before the court included whether the Tribunal had made a jurisdictional error by not adequately considering the statutory test for serious harm and whether it had overlooked significant evidence concerning the treatment of women in Iran for dress code violations. The applicants contended that the Tribunal's decision failed to properly assess the potential harm they would face if returned to Iran, particularly in light of the second applicant's experience with the Basij and the broader context of women's rights in Iran as outlined in a U.S. State Department report.

The court found that the applicants had not provided a satisfactory explanation for the significant delay in bringing their application for judicial review. The applicants had access to legal assistance and resources, yet they did not meet the statutory time limits for filing their application. The court noted that the applicants' unsupported allegations of unawareness and lack of funds did not adequately explain the protracted delay. Additionally, the court held that the applicants' claims of error in the Tribunal's decision lacked the necessary detail and substantiation to merit consideration at a trial.

The court ultimately dismissed the application for judicial review, finding that it was not in the interests of the administration of justice to extend the time for filing the application. The applicants' failure to provide a credible explanation for their delay, coupled with the lack of merit in their claims, led the court to conclude that the application should not proceed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicants’ claims can be summarised as follows: (a)the first applicant feared harm if he returned to Iran because he smuggled and sold motorbikes in breach of Iranian law. He was arrested as a consequence and, in court, was questioned by the judge about a tattoo of the Cross on his upper arm. The first applicant claimed that the judge had treated him harshly and had asked him a number of questions about his religion. Even so, he was bailed after having spent seven or eight days in custody;(b)the first applicant also feared harm because of his two visible tattoos, including one of the Cross on his upper arm, which he claimed were reflective of his “non-conformist” profile and would cause him to be of interest to the Iranian authorities; (c)the second and third applicants feared harm as a consequence of their relationship with the first applicant;(d)the second applicant also feared harm and did not want to leave the house because of prior harassment from Basij officers who had criticised her for showing her hair, wearing an Islamic coat of insufficient length and for having her fingernails painted; (e)the second applicant also feared harm if she returned to Iran because she had sought asylum in a Western country; and(f)both the first and second applicants feared that the first applicant would be arrested and punished for his prior alleged offending.The Tribunal’s decision and reasons After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the applicants were persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (Convention), or s.36(2)(aa) of the Act. Given the limited nature of the allegations made in this proceeding, which will be set out later, it is not necessary to summarise the greater part of the Tribunals reasons. In relation to the first applicant it is sufficient to record that the Tribunal considered that no risk of persecution arose out of the motorbike incident or his tattoos because the Iranian authorities had treated them, essentially, as trivial matters. As to the second applicant, the Tribunal found that although she had, in the past, received adverse attention from the Basij for violating Islamic dress codes, it did not accept that such attention constituted serious harm. The Tribunal also stated that the reasons which caused it to not be satisfied that the second applicant faced a real chance of serious harm, as defined by the Act, in Iran for a Convention reason also led it to not be satisfied that she faced a real risk of suffering significant harm, as defined by the Act, if she returned there.Grounds for judicial review In their amended application the applicants alleged:1. The Second Respondent (Tribunal) made a jurisdictional error by not giving proper consideration to a statutory test.a. The Tribunal at paragraph 251 of its decision accepted the Second Applicant’s claim that she faced adverse attention from the Basij for violations of the Islamic dress code;b. The Tribunal, however, at paragraph 251 of its decision did not accept that the adverse attention constituted serious harm;c. The Tribunal found “for the same reasons” at paragraph 268 of its decision that the Second Applicant did not face significant harm for the purposes of complementary protection;d. The Tribunal was required to give proper consideration to the statutory test: SZSZQ v Minister for Immigration [2018] FCA 403 at [69];e. The Tribunal failed to give such consideration, in particular whether the Second Applicant faced “significant physical harassment of the person” (s 91R(2)(b)), “significant physical ill-treatment of the person” (s 91R(2)(c)) or “extreme humiliation” under s 36(2A)(e) when read with s 5(1) of the Act.2. The Tribunal made a jurisdictional error by overlooking an important item of evidence.a. The Tribunal referred at paragraph 152 of its decision to the United States State Department Country Report on Human Rights Practices (Iran) 2012 (report);b. The report stated that “a woman who appears in public without an appropriate headscarf (hijab) can be sentenced to lashings and fined”;c. The report further stated that, in particular, “absent a clear legal definition of `appropriate hijab’ or the punishment, women were subject to the opinions of disciplinary forces”;d. The Tribunal was required not overlook evidence before it that was significant to its performance of its function: Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at [54];e. The relevant parts of the report were of such significance as they were influential in relation to the Second Applicant’s claim of serious or significant harm on account of the Islamic dress code.

Ratio Decidendi

Legal Principle Established

The consequence of the application having been filed late is that the Court must consider the two questions posed by s.477(2). The first of these is whether an application has been made to the Court for an extension of time. The application commencing this proceeding contained an application for an extension of time and set out the basis on which the applicants said that an extension of time would be in the interests of the administration of justice. The initial criteria for the granting of an extension of time have therefore been satisfied. Interests of the administration of justice The second question posed by s.477(2) is whether it is in the interests of the administration of justice to extend the time. In the circumstances of this case, that question will be determined by whether the applicants have provided a satisfactory explanation for their delay in commencing the proceeding and whether the allegations made in the substantive application for judicial review have sufficient merit such that the Court should consider them at a trial. The Minister did not submit that prejudice of any particular materiality would result from an extension of time.Satisfactory explanation for delay In their amended application, the applicants alleged: 1. The Applicant’s application was refused on 14 March 2014. They were initially represented by Ms Cathrynne Lester from Australian Migration Options Pty Ltd. Ms Lester then ceased representation. The Refugee Review Tribunal referred the Applicants’ case to Justice.net, a program run by the University of Adelaide. A Barrister … picked up the Applicant’s case. The Applicants were not aware of the 35-day time limit to apply for judicial review after the decision of the RRT. The matter did not proceed for 3 years. The Applicant’s moved to Sydney and met with a migration agent … . They did not know that Mr … was not a lawyer. He did not make any progress with the case. His license was also cancelled during this period. Finally, they met with Mr Ali Al Khafagi who assisted them with their initial judicial review in 2019.2. The Applicants relied on the program run by the University of Adelaide to provide them with legal assistance. The Applicants did not have the funds to be represented by the private lawyer. They were not aware of the legal process or their rights.3. It is in the interest of administration of justice to allow our application to the federal circuit court as that there are legal errors in the decision of the RRT. (errors in original) Those allegations were unsupported by evidence of any sort and for that reason alone are unpersuasive. I also note that, even if those allegations were to be accepted as proven, which is not the case, they fail to particularise the advice that the applicants undoubtedly received from time to time, either from the representative who assisted them before the Tribunal and to whom the Tribunal’s decision was sent for forwarding to them, from Justice.net or from the counsel they identified. How the issue of the s.477 limitation period remained unaddressed for so long, notwithstanding the involvement of advisers for much of the period, is unexplained.