DIR17 v Minister for Immigration

[2017] FCCA 2746

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIR17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2746

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a subclass 790 (Temporary Protection) visa – application for an extension of time of time under s 477 – ground not raised before the Authority not capable of giving rise to any jurisdictional error by the Authority – not necessary in the interests of the administration of justice to extend time – application for an extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 476, 477

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: DIR17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 397 of 2017

Judgment of: Judge Street

Hearing date: 9 November 2017

Date of Last Submission: 9 November 2017

Delivered at: Sydney

Delivered on: 9 November 2017

REPRESENTATION

The Applicant appeared by video link.

Solicitors for the Respondents: Ms E Tattersall
Sparke Helmore

ORDERS

1. The application for an extension of time is dismissed under s 477 of the Migration Act 1958 (Cth).

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 397 of 2017

DIR17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 7 September 2016 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Iran, and his claims were assessed against that country. In March 2013, the applicant departed Iran and travelled to Turkey, and then travelled by plane to the United Arab Emirates and then Indonesia. The applicant departed Indonesia by boat in March or April. On 17 April 2013, the applicant arrived in Australia as an unauthorised maritime arrival. On 7 December 2015, the applicant made an application for a subclass 790 (Temporary Protection) visa. 

3. The applicant claimed to fear harm from the security forces prior to his departure and consequently that he faced serious charges for political crimes. The applicant also claimed to fear harm by reason of his medical condition and having been diagnosed with Hepatitis C and cirrhosis of the liver. 

4. The delegate in a decision dated 18 July 2016 found the applicant failed to meet the criteria for the grant of a visa. The delegate made adverse credibility findings in relation to the applicant’s claims. The delegate addressed in detail the applicant’s medical condition and country information in respect of the applicant’s medical condition. 

The Authority’s decision

1. On 21 July 2016, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review. The Authority identified that there were limited circumstances in which the Authority could receive new information. The letter provided a fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions. No such documents were provided to the Authority.

2. The Authority in its reasons delivered on 7 September 2016, identified the background to the visa application. The Authority identified having regard to the material referred by the Secretary under s 473CB of the Act. The Authority referred to communications sent on behalf of the applicant seeking an opportunity to put on submissions and that the Authority provided time to do so, provided they were received on or before 26 August 2016. The Authority noted that no such submissions were received.

3. The Authority summarised the applicant’s claims and evidence. The Authority made reference to the implied claim in relation to complementary protection regarding the applicant’s ability to obtain medical treatment for his condition in Iran. The Authority found there were significant discrepancies in the applicant’s account in respect of his claims and the Authority summarised the main inconsistencies in that regard. 

4. The Authority did not accept the applicant’s account of the circumstances leading to his departure from Iran. The Authority did not accept that the applicant had a dispute with members of the Basij or the Sepah which led to his being charged for the various offences, or that he was sentenced to lashes and imprisonment. The Authority did not accept the applicant escaped from Court as described, or that he left Iran in circumstances described. The Authority did not accept the applicant’s account of the manner in which he departed Iran, and did not accept that the applicant illegally departed or used a false passport. 

Assessment of Refugee Convention criteria

1. The Authority did not accept that the applicant had a dispute with members of the Sepah or the Basij which led to him being charged with various political offences, or that he was sentenced to lashes and imprisonment for these offences prior to his departure from Iran. The Authority did not accept the applicant escaped from Court as described or that he left Iran in the circumstances described. The Authority did not accept the applicant’s account of the manner in which he departed Iran. The Authority did not accept that the applicant departed illegally, or using a false passport.

2. The Authority made reference to the applicant being affected by the 2014 data breach, and accepted that the authorities may have accessed the information that was published that the applicant had applied for asylum. The Authority made reference to the fact that the authorities would probably assume, in any event, this is a result of the applicant’s long absence and that he would be returning without a passport.

3. The Authority took into account country information about the treatment of failed asylum seekers returning to Iran from western countries and the applicant’s particular circumstances. Having considered the circumstances of the applicant in light of the country information, the Authority found the applicant might be questioned on return because he would be using a temporary travel document, and found there was no real chance that he would be subjected to adverse attention because of this. 

4. The Authority did not accept that the applicant has a profile as a political activist on the basis of activities within or outside Iran. The Authority did not consider any protest the applicant attended in 2009 has or would result in him being imputed to be a political activist or a person whose political profile would be of concern to the authorities if he was questioned on return because of the temporary document on which he would be travelling.

5. The Authority was satisfied on the weight of the country information, that failed asylum seekers do not face a real chance of persecution on return to Iran merely because they have sought asylum. The Authority did not accept that there is anything in the applicant’s background, including the alleged 2009 arrest, or the fact that he may be identified as a failed asylum seeker because of the circumstances in which he would be returning to Iran or because of the data breach, that would lead to a suspicion or imputation that he holds anti-regime views or political opinions that would be of concern to the authorities which might result in his being subject to serious harm.

6. The Authority made reference to the delegate’s detailed consideration in relation to the applicant’s medical condition and his alleged inability to obtain treatment for liver disease in Iran. The Authority found that there is nothing in the country information referred to, and that the applicant has not claimed that he would be denied or unable to access medical treatment or services in Iran for reasons in s 5J(1)(a) of the Act. In these circumstances, the Authority found the applicant failed to meet the requirements of the definition of refugee in s 5H(1) of the Act and found the applicant does not meet the criteria under s 36(2)(a) of the Act. 

Assessment of complementary protection criteria

1. The Authority turned to the issue of complementary protection and further considered the applicant’s medical condition. The Authority was not satisfied that the applicant’s inability to obtain a liver transplant or access the same drug treatment that you could in Australia would result in the arbitrary deprivation of his life within the meaning of s 36(2A)(a) of the Act.

2. The Authority did not accept that any failure or inability on the part of the government of Iran to provide optimum medical treatment required by the applicant is an act or omission by which pain or suffering is intentionally inflicted, nor can it be reasonably regarded as cruel and inhumane in nature. The Authority found that any such failure or inability is not an act or omission intended to cause extreme humiliation. The Authority found the necessary element of intention is absent and that any harm suffered by the applicant does not meet the definition for the various forms of significant harm identified in s 36(2)(A) of the Act.

3. It was in these circumstances ,the Authority found there were not substantial grounds for believing that there is a real risk that the applicant would suffer significant harm because he cannot obtain the same medical care in Iran as he can in Australia. The Authority found there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned from Australia to Iran there is a real risk that the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. A Registrar of the Court made orders on 18 August 2017 providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing today, the applicant sought to provide a number of documents in relation to his medical condition as well as other material in respect of his claims. The applicant confirmed that all that material was material upon which he sought to rely in advancement of the fears that he claimed. All but one of the documents was not before the Authority. The first respondent objected to the tender on the grounds of relevance. The Court upheld the objection with the exception of the document being a psychiatrist’s report that was before the Authority. The material provided by the applicant was rejected because it is not relevant and it is not capable of establishing a relevant error by the Authority in the exercise of its jurisdiction.

Application for an extension of time under s 477 of the Act

1. This is a case where the applicant filed the proceedings in this Court on 25 July 2017, 330 days outside the time required under s 477 of the Act. At the commencement of the hearing, the Court explained to the applicant that there were three issues that arise in relation to the application for an extension of time under s 477 of the Act. The Court explained the first issue was whether there is a satisfactory explanation for the delay and in that regard, the Court identified that the delay was 330 days. The Court identified that the next consideration was whether there was any prejudice and that there was no specific prejudice alleged by the first respondent. The Court explained that the next issue was the merits of the application.

2. The Court explained the merits of the application invoked the Court was taking into account whether the applicant had a reasonably arguable case that the Authority’s decision was affected by relevant legal error.   The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether the applicant had a reasonably arguable case that the Authority’s decision was unlawful or unfair. The Court explained to the applicant that if satisfied that the applicant had an adequate explanation for the delay and a reasonably arguable case as to the merits, the Court would extend time and fix the matter for hearing on another occasion. The Court explained that if not satisfied the applicant had a reasonable explanation for the delay and a sufficiently arguable case on the merits, the Court would dismiss the application for an extension of time with costs. 

3. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor to the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

Applicant’s explanation for the delay

1. The applicant’s explanation in relation to the delay focuses on his endeavours to obtain legal representation which the applicant says was unsuccessful. The applicant also identified that he suffers from a serious medical condition. Whilst the applicant’s explanation for the delay is not ordinarily one which the Court would accept as satisfactory, given his medical condition, the real issue in the present case are the merits of the application. 

2. In that regard, from the bar table, the applicant sought to explain what had occurred to him since coming to Australia and sought to advance that his medical condition was something that had affected him and his ability to explain his claims at the time of the interview. It is apparent on a fair reading of the Authority’s decision that the Authority took into account the applicant’s medical condition and did not accept that the applicant’s medical condition adequately explained the inconsistencies in assessing the applicant’s credit. The applicant otherwise was inviting the Court to engage in merits review. This Court does not have the power to review the merits. The Court explained to the applicant that it could not decide the matter on compassionate grounds and repeated on two occasions an explanation to the applicant as to the nature of the issues that the Court could consider and that were relevant. Nothing said by the applicant from the bar table identified any arguable case of jurisdictional error. 

The grounds

1. The grounds in the application are as follows:

   Ground 1:

   8. The Authority failed to make key factual findings, further or alternatively in wrongfully, and without Authority, relied on the factual findings of the delegate, which formed the basis, or a component of the basis, of the Authority’s decision.

   Particulars

   a. the Authority had regard to translated document provided by the applicant in searching for inconsistencies between such documents and the applicant’s evidence, however the Authority did not make any findings as to the veracity of those documents, which if found to be accurate translations, would be highly persuasive evidence of the legitimacy of applicant’s claim for protection; and

   b. the Authority relied on the Primary Decision Record’s factual finding as to, what the Authority considered to be, key dates in the translated documents, without independently verifying those dates from the documents, which as part of the Department file, were available to the Authority.

   9. In adopting the approach as stated in paragraphs 8 herein, the Authority:

   a. failed to give proper, genuine and realistic consideration to the evidence before it;

   b. adopted illogical and irrational reasoning or made a decision in regard to the applicant’s application that was lacking in logic and so unreasonable that no reasonable Authority would have made it; and

   c. constructively failed to exercise the statutory review function conferred by the Act.

   Ground 2:

   10. The Authority erred by applying an incorrect test to determine whether the Applicant was a person to whom Australia has protection obligations for the purposes of s 36(2)(aa) of the Migration Act.

   Particulars

   a. the Authority equated the test applicable under s 36(2)(aa) with the test to determine whether or not the applicant was a refugee, in so doing, it failed to apply the correct test under that provision;

   b. the Authority failed to consider the risk that the applicant will suffer significant harm as defined in s 36(2A);

   c. the risk was that, if the applicant were to be removed to Iran, he may become liable to conviction and corporal punishment in respect of his health issues, namely alcoholism, requiring him to illegally consume alcohol in Iran; and

   d. as is clear, on the face of the record, the risk was readily apparent from the evidence provided to the Authority by the Secretary.

   Ground 3:

   11. To the extent that the Authority considered the various elements of the applicant’s claim, it failed to cumulatively consider the integer of the claim, being those of the applicant’s claims that were either not considered by the Authority, were considered but not ultimately determined, or were considered and accepted by the Authority, including that the applicant:

   a. had been arrested and detained for political activities in 2009;

   b. consumed alcohol in Iran and, because of his addiction, was most likely to continue;

   c. would be required to be returned to Iran as a failed asylum seeker; and

   d. was a person affected by the 2014 data breach.

   12. Those facts, as set out in paragraph 11 above, are essential elements of the applicant’s overall claims for protection, including his claim for protection under s 36(2)(aa), and the Authority was obliged to consider them cumulatively. Failure to do so amounts to jurisdictional error.

Ground 1

1. In relation to ground 1, the Authority’s reasons reflect an orthodox approach to the assessment of a review under Part 7AA. The adverse credit findings were the subject of logical and rational reasons in support of those adverse findings. The adverse findings were open on the material before the Authority. For the reasons given by the Authority, the adverse findings by the Authority cannot be said to lack an evident and intelligible justification. There is no basis to hold, on the face of the Authority’s reasons, that the Authority failed to give proper, genuine and realistic consideration to the evidence before it. Ground 1 is in substance an invitation to this Court to engage in impermissible merits review. No arguable case of jurisdictional error is made out in relation to ground 1.

Ground 2

1. In relation to ground 2, the applicant seeks to advance a claim in relation to alcoholism which was not raised before the Authority. A ground not raised before the Authority is not capable of giving rise to any jurisdictional error by the Authority. No arguable case of jurisdictional error is identified in ground 2. 

Ground 3

1. In relation to ground 3, the Authority addressed the applicant’s claims in relation to alleged political activities in 2009 and took into account that the applicant would be a failed asylum seeker as well as the data breach and made adverse findings that were open to the Authority on the material in respect of those claims. No claim was advanced by the applicant in relation to alcoholism and no such issue is capable of giving rise to an alleged error by the Tribunal. On a fair reading of the Authority’s reasons, the Authority took into account the whole of the applicant’s circumstances and considered the applicant’s claims cumulatively in determining whether or not the applicant made out the criteria for the grant of the visa. On the face of the material before the Court, the Authority complied with its statutory obligations in the conduct of the review and complied with the obligations of procedural fairness by the sending of the letter dated 21 July 2016. No arguable case of jurisdictional error is made out by ground 3. 

Conclusion

1. In these circumstances, the merits of the application do not warrant an extension of time under s 477 of the Act. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. As the application fails to identify any sufficiently arguable case on the merits, the Court is not satisfied that it is necessary in the interests of the administration of justice to extend time under s 477 of the Act.

2. For these reasons, the application for an extension of time is dismissed. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 1 December 2018