DEL18 v Minister for Immigration
[2019] FCCA 2792
•1 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEL18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2792 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iran – applicant disbelieved in parts and other claims found not to be well-founded – general grounds of review – no jurisdictional error – observations on the applicant’s partner relationship with a New Zealand citizen. |
| Legislation: Migration Act 1958 (Cth), ss.473CB, 473DA, 473DD |
| Cases cited: AXE17 v Minister for Immigration [2019] FCA 695 CLS15 v Federal Circuit Court of Australia (2017) 72 AAR 502 DFA18 v Minister for Home Affairs & Anor [2019] FCCA 258 Minister for Home Affairs v EWP17 [2019] FCA 205 Minister for Immigration v SZMTA (2019) 93 ALJR 252 |
| Applicant: | DEL18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1714 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 1 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 1 October 2019 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Ms N Laing |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,560.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1714 of 2018
| DEL18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority). The decision was made on 17 May 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 24 September 2019.
The applicant is a citizen of Iran who arrived in Australia at Christmas Island on 17 September 2012 as an unauthorised maritime arrival.[1] He applied for a protection visa on 12 April 2016.[2]
[1] Court Book (CB) 41, 61
[2] CB 99-129; 182
The applicant claimed to fear harm because of his:[3]
a)anti-regime views and activities;
b)previous treatment by the authorities;
c)appearance; and
d)potential status as a failed asylum seeker from Australia.
[3] CB 230-231 [6]
The delegate refused the application on 6 July 2017.[4] On 17 May 2018, the Authority affirmed the delegate’s decision.[5]
[4] CB 182-198
[5] CB 229-243
The Authority’s decision
The Authority observed that it had considered the material provided by the Secretary under s.473CB of the Migration Act 1958 (Cth) (Migration Act). It also had regard to a submission dated 4 September 2017 to the extent that it reiterated the applicant’s claims and provided arguments in relation to the delegate’s decision. The Authority was not satisfied that country information that was not before the delegate and pre-dated the delegate’s decision met the requirements of s.473DD of the Migration Act.[6]
[6] [2]-[5]
The Authority accepted that the applicant worked as a “satellite installer” for several years prior to his departure from Iran. The Authority did not accept that the applicant came to the adverse attention of the authorities for this reason. The applicant’s claims in this regard had been inconsistent. The Authority also found it implausible that the applicant would have been able to depart on his genuine passport without issues if he was a person of interest as claimed. The Authority was not satisfied that the applicant would face a real chance of the relevant harm if he resumed work installing satellites in the future.[7]
[7] [10]-[19]
The Authority did not accept that the applicant would face a real chance of harm on account of his anti-regime views or political activities. The applicant was not detained or otherwise harmed for attending protests in 2009. The Authority was not satisfied his activities in Australia were otherwise than for the purpose of strengthening his protection claims, or that he would be politically active if he returned to Iran. In any event, country information indicated that there was a “relatively robust environment for political discussion in Iran” and the Authority was not satisfied the authorities would be aware of his political activities in Australia.[8]
[8] [20]-[29], [46]
After having regard to available country information, the Authority did not accept that the applicant would be targeted simply because he does not have a religion. Nor did the Authority accept that the applicant would face the relevant harm on account of his appearance. Although the Authority accepted that the applicant had been detained and assaulted previously because of his appearance, the encounters appeared to have been random and some years had passed subsequently. The present country information indicated that the situation had improved and that the most likely outcome if he was stopped would be a verbal warning, a fine, or (less likely) detention for a few hours.[9]
[9] [30]-[36]
The Authority accepted that the applicant was no longer in possession of his passport and that his return would require a temporary travel document issued by Iranian diplomatic representatives. The Authority therefore accepted that the government may become aware that the applicant has sought asylum in Australia.[10]
[10] [37]
Country information indicated that Iran does not accept involuntary returnees and that Iranian overseas missions will not issue travel documents to an Iranian whom a foreign government wishes to involuntarily return. Irrespective of whether a person was travelling on a temporary travel document or their own passport, credible sources had informed DFAT[11] that they will generally only be questioned if they had done something to attract the specific attention of the authorities. The vast majority of those questioned would be released after an hour or two.[12]
[11] Department of Foreign Affairs and Trade
[12] [38]-[39]
With “reference to the applicant’s particular circumstances”, the Authority was not satisfied that the applicant’s political views, religious views or appearance would result in differential treatment upon re-entry. The country information did not support a finding that Western asylum seekers are imputed with any anti-government political opinion. The Authority rejected that the applicant had a profile of interest prior to his departure or that he would attract adverse attention as a returning asylum seeker.[13]
[13] [40]
The Authority accepted that as an asylum seeker returning without a passport from Australia, the applicant may be questioned and briefly detained by the authorities. It was not satisfied this would amount to serious or significant harm.[14]
[14] [41], [47]
Ultimately, the Authority was not satisfied that the applicant was a person to whom protection obligations were owed. Accordingly, it affirmed the delegate’s decision.[15]
[15] [42], [49]
The current proceedings
These proceedings began with a show cause application filed on 20 June 2018. The applicant continues to rely upon that application. The grounds in it are:
1. The Immigration Assessment Authority failed to exercise its jurisdiction according to law.
2. The Immigration Assessment Authority breached procedural fairness by rejecting the claim of the applicant for protection in the absence of any adverse evidence.
The application was supported by a short affidavit filed with it, which I received. I also have before me as evidence the court book filed on 18 July 2018.
Only the Minister filed pre-hearing written submissions in accordance with procedural orders I made last year.
I invited oral submissions from the applicant this morning. His submissions were detailed, but dealt with his claims for protection and the circumstances in Iran as he perceives them. Unfortunately for the applicant, those submissions did not rise above a dispute over the merits of the Authority decision. Those merits are beyond the scope of this proceeding, as I explained to the applicant.
The Minister’s submissions deal with the grounds of review advanced. I agree with those submissions.
Neither ground is particularised. The first ground is meaningless in the absence of particulars.
The second ground appears to misunderstand the role of the Authority. The Authority’s obligations derive from Part 7AA of the Migration Act. Common law procedural fairness obligations are otherwise excluded.[16] In any event, it is well settled that a decision maker is not required to possess rebutting evidence in order to reject an applicant’s claims.[17]
[16] section 473DA
[17] AXE17 v Minister for Immigration [2019] FCA 695 at [33]
The Minister’s submissions raise a further matter, that is, the question whether the Authority erred in dealing with the issue of the applicant’s return to Iran either as a voluntary or involuntary returnee.
It has for many years been accepted that, subject to a more recent agreement between Australia and Iran, returnees to Iran must be voluntary. In the past, this circumstance occasionally led decision-makers into error by concluding that the applicants would not be returning to Iran at all. More recently, a question has arisen concerning whether decision‑makers need to grapple with the question of whether Iranian returnees would be returning involuntarily or voluntarily.
In my mind, the proposition is a simple one: if an applicant claims that he would be returning as an involuntary returnee, the decision-maker must consider that claim. If, however, the claim is based upon a false factual foundation, the decision-maker is entitled to say so. The Minister’s submissions otherwise deal with this matter. I agree with those submissions.
As a model litigant, the Minister draws the Court’s attention to the decision of the Federal Court in CLS15 v Federal Circuit Court of Australia.[18] In that case, as in the present, country information was considered indicating that Iran would not accept involuntary returnees. Charlesworth J found at [41] that the appellant’s claim to face harm as a failed asylum seeker was “clearly articulated as one based on a premise that he would be “forced” to return to Iran”. The Tribunal was found to have erred in relation to this claim. If it considered return would be voluntary, it assessed a claim that had not been made.[19] If it considered return would be involuntary, the Tribunal failed to deal with the claim that the applicant would come to the attention of the authorities not simply after his forcible return, but because of it.[20] The Court was unwilling to infer a finding that the applicant would not be returned until feasible, in circumstances where this would involve indefinite detention.[21]
[18] (2017) 72 AAR 502
[19] [60]
[20] [60]
[21] [62]
CLS15 has been distinguished in subsequent cases.[22] In EWP17, Logan J allowed an appeal from a decision in which it was found that the Authority fell into the error found in CLS15. The Authority in that case had referred to the applicant’s submission that his return “facilitated by both the Australian and Iranian governments” would result in him being questioned by the authorities, who would become aware of his past. Within this context, the Authority found that:
Irrespective of whether a returnee is travelling on a temporary travel document or their ordinary passport ... they will generally only be questioned if they had done something to attract the specific attention of authorities.
[22] See for example Minister for Home Affairs v EWP17 [2019] FCA 205 and DFA18 v Minister for Home Affairs & Anor [2019] FCCA 25
Relying upon the Authority’s reasoning, the Court found at [13]-[14] that the Authority had disposed of the applicant’s claim.
Similar if not identical country information was relied upon by the Authority in the present case. At [39], the Authority found that:
Irrespective of whether a returnee is travelling on a temporary travel document, or their ordinary passport ... they will generally only be questioned if they had done something to attract the specific attention of authorities.
This passage is substantively identical to the passage upon which reliance was placed in EWP17. The Authority here, as in EWP17, went on to consider what would happen if the applicant was questioned.[23] In the present case, the Authority found that even if the applicant was questioned, and even if his status as a failed asylum seeker became known, this would not result in the relevant harm.[24]
[23] see EWP17 at [8]
[24] [41], [47]
In any event, proceedings are to be determined not by analogy, but by the application of principles to the facts of the particular case.
In the present case, the high point of the applicant’s claims regarding involuntary return is found in his submissions to the Authority at CB 221. The applicant claimed that:
…as an involuntary returnee, it would not take long to establish that the Applicant is a person who has attempted to seek asylum in the West by making claims against the Iranian regime on the basis of his religious and political opinion”.
The Authority does not appear to have regarded this as new information.[25]
[25] [2]-[5]. Whether or not it was properly categorised as such would depend on a full review of the materials, including any audio materials that are not in evidence. I accepted that such a review was unnecessary in circumstances where, to the extent the Authority erred in not finding the claim to be excluded under s.473DD of the Migration Act, this was in the applicant’s favour. It was therefore not material in the sense that it could not have deprived the applicant of the possibility of a successful outcome: Minister for Immigration v SZMTA (2019) 93 ALJR 252
The applicant’s claim regarding involuntary return was that this would expose him to harm because it may result in his identification as a failed asylum seeker from the West. The Authority accepted that the applicant may be identified as a failed asylum seeker. It accepted this may result in him being briefly detained and questioned. It did not accept that this would result in him being imputed with an anti-government political opinion or facing serious or significant harm.
In these circumstances, the Authority’s findings were dispositive. Even if the Authority had overlooked the applicant’s claim regarding involuntary return (which I have not accepted), it is difficult to see how this could be said to have affected its exercise of jurisdiction. This is because, regardless of whether the return was voluntary or involuntary, the Authority accepted that the authorities may question the applicant, and may become aware he was a failed asylum seeker, but did not accept that he would face the relevant harm in result.
The better reading of the Authority’s reasons is that, having found that involuntary removal was precluded on the country information, the Authority proceeded to consider what would happen if the applicant did return, voluntarily. In DFA18, Judge Vasta observed at [39]-[41]:
But in some ways, when I look at the matter, and whilst what I am saying is probably contrary to what was said by Charlesworth, J in CLS15, it seems to me that this does not matter. It really matters not whether the Applicant will be a voluntary or an involuntary returnee to their country of origin, because that is not what the IAA needs to consider. The IAA needs to consider what will happen if, and when, the Applicants are returned to their country.
What has occurred in this case is that the IAA has noted the DFAT information that involuntary returnees will not be allowed into Iran. If that is so, then that is so. But the IAA's role is not to then say, "well, that is the end of the matter". The IAA's role is to look at what will happen if they are returned, and this is what this IAA has done. The criteria that the IAA have to look at as to whether s.36(2)(a), being the refugee criteria, or s.36(2)(aa), the complementary criteria, have been satisfied.
Whether or not the Applicant is a voluntary returnee or an involuntary returnee does not affect the question that the IAA has to decide unless there is a specific claim that the manner of return, whether it be voluntary or involuntary, affects what will happen on return; otherwise it is irrelevant to the decision of the IAA. Whether the Applicant is a voluntary returnee or an involuntary returnee does not in any way, shape or form affect the ascertaining of whether or not the criteria are fulfilled.
Put another way, the manner of return is only relevant insofar as it is material to the assessment of the applicant’s claims against the statutory criteria. This is not inconsistent with what was said in CLS15.
In order to preserve his position on appeal, the Minister formally submits that CLS15 was wrongly decided. It is unnecessary for me to express any view on that, and indeed it would be inappropriate to do so. Suffice to say that in my view, on the present facts, this case can be readily distinguished from CLS15.
A final matter
The applicant attended court today with his partner and their child. The applicant’s partner is a citizen of New Zealand and an Australian permanent resident.
Although the discussion around this issue was somewhat confused, it appears that the applicant and his partner have sought an Australian partner visa, but that has been refused. They may be eligible for a partner visa in New Zealand, but this may have been complicated by the Australian visa decision. The applicant also told me that he understands he would be unable to travel to New Zealand without an Australian travel authority.
These are matters that could be usefully explored by the Minister’s Department. The applicant is resolute that he will never return to Iran voluntarily. No interest would seem to be served by him remaining in Australia for a further prolonged period in a legal twilight zone. If the applicant and his partner are able to satisfy the criteria for a partner visa in New Zealand, it would seem to me sensible for that process to be facilitated by the Australian authorities. That is, of course, beyond the scope of today’s proceedings.
Conclusion
I conclude that the applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision, and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,560. The applicant claims impecuniosity, but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order. The amount claimed is significantly below scale costs, and I have no difficulty in concluding that the claimed costs have been reasonably and properly incurred.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,560.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 3 October 2019
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