DRH18 v Minister for Home Affairs

[2019] FCCA 625

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRH18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 625

Catchwords:
MIGRATION – Application for temporary protection visa – no reasonable fear of harm if returned to Iran – country information – application dismissed

Legislation:

Migration Act 1958 (Cth) ss.476, 473CB, 5H(1), 5J, 36(2)(a), 36(2)(aa).

Cases cited:

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: DRH18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 724 of 2018

Judgment of: Judge Egan

Hearing date: 27 February 2019

Date of Last Submission: 27 February 2019

Delivered at: Brisbane

Delivered on: 27 February 2019

REPRESENTATION

Applicant: In person

Solicitors for the First Respondent: Mr King of Minter Ellison

IT IS ORDERED THAT:

1. The application for review filed on May 31 2018 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $7,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 724 of 2018

DRH18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant was born in Iran.  He arrived in Australia on 30 November 2012 as an unauthorised maritime arrival.  On 21 January 2016, he was invited to apply for a temporary protection visa or a safe haven enterprise visa.  The applicant initially lodged an application for a SHEV on 9 February 2016 which application was withdrawn that month before he lodged a new application for a temporary protection visa on 7 March 2016.

2. The applicant made claims for protection as follows:

   ·The applicant is a stateless Faili Kurd. He has no identity documents. His parents were born in Iraq and were deported to Iran as children before the Iran/Iraq war. His parents and grandparents settled in Ilam Province near the Iraqi border. They had no documents, were illiterate and did not apply for any documents or for any residence status in Iran.

   ·The applicant was born in the village in Ilam where the family settled. He did not attend any formal schooling but went to the mosque every day for one to two hours to learn how to read and write.

   ·Around 2000 the family moved to Teheran as there were more work opportunities there. Through the assistance of Faili Kurdish friends his father obtained work as a construction labourer. They rented a property with the assistance of other Faili Kurds who have documents.

   ·The applicant was not able to obtain work legally because he was undocumented and in Teheran he worked as a street vendor selling clothes and glasses. Street vending is illegal and he was regularly harassed by the authorities, the local council and shop keepers and told to move on. He was fined on a couple of occasions. If he was made to pack up his stall and leave he made no money for that day; he was not able to accrue any savings. Because he had to work illegally he was at risk of being harmed by the authorities and he was punched and kicked by the police and authorities on a few occasions. Working as a street vendor was difficult and he developed medical problems as a result of the hard work.

   ·Due to the daily stress he was under he experienced psychological stress and depression. He considered getting some people together to protest about the treatment they received from the government but people were too frightened to become involved.

   ·He decided to leave Iran and travel to Australia to access more opportunities and to obtain an identity and access to a proper residence status.

   ·Through a family connection he was introduced to someone who organised a fraudulent passport for him in another name and he left Iran via the airport in Teheran in October 2012 with the assistance of a people smuggler. The passport was taken from him by the people smuggler in Indonesia. His father funded his travel as he did not have any money; the cost of the travel was 10,000 USD, including 2,500 USD for the passport.

   ·As a Faili Kurd he is discriminated against and has no identity and no documents, he cannot work legally, or travel or go to school and he is practically illiterate. He conducted himself in a way that brought no attention to himself so as the avoid harm but he still got into trouble with the authorities.

   ·The applicant fears ongoing discrimination and harm as a stateless Faili Kurd should he return to Iran. He fears he could be assaulted or killed because the authorities can accuse you of doing anything. He fears harm because he departed Iran illegally and that he will be suspected by the authorities because he has lived outside of Iran for an extended period. The applicant feels better off mentally in Australia.

3. On 10 October 2017, a delegate of the Minister refused to grant the applicant a temporary protection visa. That decision was a fast track reviewable decision which was referred to the Immigration Assessment IAA (‘the IAA’) on 13 October 2017 for review. On 19 November 2017, the IAA received a set of written submissions from the applicant dated 12 November 2017. On 28 June 2018, the IAA affirmed the decision not to grant to the applicant a temporary protection visa. The applicant filed his application for review on 16 July 2018 pursuant to the provisions of section 476 of the Migration Act 1958 (Cth) (‘the Act’) seeking review of the decision of the IAA dated 28 June 2018.

4. When dealing with the application before it, the IAA recorded that it had had regard to the material provided to it by the Secretary pursuant to the provisions of section 473CB of the Act. It further noted receipt of the submissions provided to it dated 12 November 2017. At [4] of its reasons, the IAA found that the representative’s submissions addressed the delegate’s decision and findings, and that to that extent, were in the nature of argument rather than new information.

5. At [5] of its reasons, the IAA recorded that it had obtained new information including information relating to returnees to Iran who had claimed asylum whilst overseas.  It referred to the then most recent Department of Foreign Affairs and Trade (‘DFAT’) country information for Iran published on 7 June 2018.  That report was published after the delegate’s decision, the delegate having relied on the 21 April 2016 DFAT report for Iran which had been updated by the 7 June 2018 report.  It was recorded that the IAA was satisfied that there were exceptional circumstances justifying consideration of that new information.

6. The IAA was satisfied that the applicant was a Faili Kurd ([7] of IAA reasons).

7. At [8-15] of its reasons, the IAA set out the applicant’s claims as to his being a stateless person but rejected such claims, stating that it was satisfied that the applicant was an undocumented Faili Kurd who was not registered with Iranian authorities ([15] of IAA reasons).  At [16] of its reasons, the IAA did not consider that the applicant’s account as to how he had departed Iranian using a fraudulently issued passport was accurate or genuine.  At [18], the Tribunal noted that there were implausibilities in the story advanced by the applicant as set out in [15-17] inclusive of the IAA reasons.

8. It noted that there was no impediment, apart from illiteracy, to the applicant’s grandparents and parents registering in Iran.  The IAA found that despite his claim to be undocumented, the applicant was literate and indicated that he had had access to education.  It was further noted that the applicant’s family was able to move from Ilam to Teheran - where the family had lived since 2000 - and that his father had been in regular employment and was able to fund the applicant’s travel to Australia.

9. The IAA did not accept that the applicant had provided a truthful account of his circumstances.  It was not satisfied that he was an undocumented Faili Kurd.  Country information suggested that many Faili Kurds have re-availed themselves of Iranian citizenship, and on that basis, the IAA was satisfied that the applicant was an Iranian citizen.  It was also satisfied that the applicant had departed Iran legally using a genuinely issued Iranian passport.  Iran was found as being the receiving country for the purpose of the review.

10. At [19] of its reasons, the IAA, though accepting that the applicant had worked as a street vendor in Teheran, and that he had been regularly disrupted by officials, police and shopkeepers and told to move on, it did not accept that the applicant had been fined or physically assaulted as claimed by him.  It was noted by the IAA that at his temporary protection visa interview the delegate had asked the applicant to explain the harassment he alleged he had experienced, the applicant’s response being that he was told that he was blocking the way and that if he didn’t move, his goods would be confiscated or he would be arrested on the complaint of the local shopkeepers.  When asked if he had ever been arrested or detained, the applicant responded that he hadn’t been.  The IAA did not accept that the applicant had been fined for being a street vendor, or that he had been punched and kicked by authorities.

11. The IAA accepted that the applicant had experienced some stress and depression whilst working as a street vendor in Iran, and that he felt better off mentally in Australia.  At [21] of its reasons, the IAA recorded that at the interview, the applicant had said that neither he nor family members had been involved in politics or had been involved in any activist groups.  It was found that the applicant had not been arrested or detained by the authorities in Iran.  Based upon the applicant’s statement that he was not politically active, the IAA was not satisfied that the applicant had arranging protests in Australia.

12. At [22] and [23] of its reasons, the IAA correctly identified section 5H(1) of the Act as setting out refugee requirements, as well as the provisions of section 5J, which dealt with what constituted a well-founded fear of persecution. At [24] of its reasons, the IAA found that neither the applicant, nor his family members, had experienced harm in Iran by reason of their being Faili Kurds. At [25] of its reasons, the IAA did not accept that the applicant could not obtain legal employment in Iran, noting that work as a street vendor was illegal. It was noted in that regard that the applicant’s father was in regular employment as a construction labourer.

13. Based upon the applicant’s evidence, the IAA was not satisfied that the applicant had been subjected to discrimination or significant economic harm, or that he had been denied the capacity to earn a livelihood or access basic services in ways which threatened his capacity to subsist.  It otherwise did not accept that he would suffer any of those consequences should he be returned to Iran.  The IAA found that there was no real chance that the applicant would face harm if returned to Iran as a Faili Kurd, or that he would have to modify his behaviour in any way to avoid such harm. 

14. On the basis of that, the IAA found that the applicant was able to be registered as an Iranian, should he be returned to Iran.  The IAA, at [26] of its reasons, found that the applicant could access medical treatment upon his return.  At [27] of its reasons, the IAA, whilst accepting that Iran had historically refused to issue travel documents to facilitate the return of involuntary returnees, noted it was likely that if returned to Iran, the applicant would return on a voluntary basis.  The indication, based on the material before the IAA, was that voluntary returnees did not face harm upon return to Iran.

15. Country information indicated that people of interest could be questioned on return to Iran, but the IAA did not accept that the applicant would be of interest to Iranian authorities.  The IAA accepted that the applicant may be questioned because of his travel document, but did not accept that that would result in any adverse interest in the applicant, or that he would be harmed during that questioning process, such that it would constitute serious harm, nor was the IAA satisfied that the applicant would face harm as a returning asylum seeker. 

16. It was noted at [28] of the IAA reasons, that the country information did not indicate that returning asylum seekers were routinely imputed with an anti-government political opinion or harmed because of their asylum claim, or for other reasons of their having been associated with a Western country.  Reports of asylum seekers being arrested on return were recorded as being related to those people involved in anti-government activities, either in Iran or during their time abroad, and otherwise, if they were members of an opposition political party or involved in political activities in other ways.  There was no indication that the applicant had been involved with anti-government activities that would attract adverse attention upon his return to Iran.

17. At [29] of its reasons, the IAA found that, having considered the applicant’s circumstances as a whole, it was not satisfied that there was a real chance of the applicant suffering persecution in the reasonably foreseeable future in Iran on the basis of his ethnicity, his medical needs, for any psychological stress or depression or on the basis that he would be returning to Iran as an involuntary returnee from a Western country. It was found by the IAA that the applicant did not meet the requirements of the definition of refugee in section 5H(1) of the Act and, further, that the applicant did not meet the protection criteria as set out in section 36(2)(a) of the Act.

18. At [32] – [35] inclusive of its reasons, the IAA dealt with the issue of whether the applicant would suffer “significant harm” if returned to Iran. It dealt with the provisions of section 36(2A) of the Act. It referred to a DFAT report which noted that discrimination against Faili Kurds could not be ruled out in individual cases, but that Faili Kurds in Iran who were Iranian citizens could access services on the same basis as other Iranian citizens, and that they appeared to face little to no discrimination in access to services.

19. The IAA found that there was no indication that the applicant had experienced harm as a Faili Kurd, and it was not satisfied on the information before it that any discrimination the applicant might face would involve deprivation of life, the death penalty, torture, cruel or inhuman treatment, or punishment or other degrading treatment.  The IAA was not satisfied that the applicant would face a real risk of significant harm based on reasons of his ethnicity, should he return to Iran.  Being questioned on return to Iran was found not to amount to serious harm or significant harm on the part of a returnee.  The IAA found that there was not a real chance that the applicant faced harm on the basis of ethnicity, his medical needs and psychological stress or depression, or by returning to Iran as an involuntary returnee asylum seeker from a foreign country.  The IAA was not satisfied that there was a real risk that the applicant would face significant harm for those reasons.

20. The IAA also found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Iran, that there was a real risk that the applicant would suffer significant harm. On that basis, the IAA found that the applicant did not meet the complementary protection criteria as set out in section 36(2)(aa) of the Act.

21. The reasons of the IAA were clear and cogent.  The IAA was seen to closely examine the factual claims put before it by the applicant.  The IAA did not relevantly fail to take into account obvious matters which were the subject of claims made before it. 

22. It cannot be said that no other rational or logical decision maker could not have made the same decision as the IAA, or acted in the same way as the IAA, in respect of the way in which the IAA approached its task. [1] 

    [1]     See Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR

    611 at [130].

23. Neither could the decision be considered as legally unreasonable or one lacking an evident and intelligible justification, as such concepts were considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

    [66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness134. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power135. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

24. No jurisdictional error has been demonstrated on the part of the IAA. 

25. The application for review is without merit and is dismissed. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 13 March 2019