EAP16 v Minister for Immigration

[2017] FCCA 2040

FEDERAL CIRCUIT COURT OF AUSTRALIA

EAP16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2040

Catchwords:
MIGRATION – Application for Temporary Protection (subclass 785) visa – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.473CD, 473 DA(1), 473DC(2)

Cases cited:

AFK16 v Minister for Immigration & Anor [2016] FCCA 1826

Applicant: EAP16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 1195 of 2016

Judgment of: Judge Jarrett

Hearing date: 31 July 2017

Date of Last Submission: 31 July 2017

Delivered at: Brisbane

Delivered on: 29 August 2017

REPRESENTATION

Counsel for the Applicant: Mr Jones, directly instructed

Solicitors for the First Respondent: Minter Ellison

The Second Respondent entered a submitting appearance

ORDERS

1. The amended application filed on 22 December, 2016 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the amended application to be fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1195 of 2016

EAP16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. By his application filed on 21 December, 2016 the applicant seeks judicial review of a decision of the second respondent dated 24 November, 2016.  In that decision the Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Temporary Protection (subclass 785) visa.

2. The first respondent opposes the application.  The second respondent has entered a submitting appearance.

3. The applicant filed written outline of submissions on 25 May, 2017.  The respondent did so on 6 June, 2017.

Background

1. The applicant is a citizen of Iran.  On 14 April, 2013 the applicant arrived in Australia after departing Iran legally sometime earlier.

2. He made an application for a Temporary Protection (subclass 785) visa on 21 March, 2016. He included a statement dated 18 February, 2016 setting out his protection claims. The applicant also submitted a number of other documents in support of his protection visa application.

3. On 29 July, 2016 the applicant was interviewed by a delegate of the first respondent in respect of his visa application.  He expanded upon the claims that he had made in his visa application and his statement that accompanied that application.   

4. The applicant claimed to be a citizen of Iran. He alleged that he was politically active when he was at university between 1994 and 1999 during which he completed a Bachelor of Accounting. 

5. He served his compulsory military service in the Islamic Revolutionary Guard Corps (the Sepah-e-Pasdaran Enghelab Islami) between 1999 and 2001.  He said his role was to teach.  He claimed that he made political comments in class which resulted in him being investigated, transferred to administrative duties, and stripped of his rank.  

6. In 2001 he obtained a five year contract with the police but was opposed to many of the things that the police did, so he received various punishments.

7. A few months after completing his police service, he said that he travelled to the United Arab Emirates for two weeks.  On return he was detained for four weeks because he had left the country without first seeking the permission to travel internationally that is required of persons who have recently completed service with Iran’s security forces.  He claimed that he was subjected to interrogation and torture because he was accused of passing government intelligence to foreign spy services.  He was then required to report every six months to the police intelligence unit.

8. However, some 18 months later the applicant said that he was given permission to travel to Saudi Arabia to undertake the Hajj.

9. Between 2007 and 2009 he operated a taxi business in Iran.  The applicant claimed that he had attended certain Green Movement protests that followed the 2009 presidential elections in Iran and that he became of interest to the authorities because of that.  He said that they targeted him and his taxi business.

10. In 2009 the applicant claimed that he attended a number of Green Movement meetings and demonstrations.  When trying to flee one demonstration his car was attacked by government agents.  He escaped but his car was traced he says, and he received a letter telling him to go to the Revolutionary Court.  When he reported in, he was handed to the Sepah who held him for three weeks and tortured him.  He was charged with taking part in the protest, public disorderly conduct, sedition and protesting the regime.  He appeared at the Revolutionary Court again and had to sign an undertaking not to protest again.  He was given a suspended sentence and ordered to be of good behaviour.

11. Between 2012 and 2013 he worked as an accountant for a company in Kashan, Iran.

12. The applicant claimed that on 22 February, 2013 he was working as a taxi driver and had spoken critically of the government to two passengers who then attacked him. He claimed that they pulled him out of the car, assaulted him, accused him of being a traitor and a foreign spy, and one of the men tried to handcuff him. He escaped and drove away. The next day he reported the matter to the police in Kashan as he wanted to have a record of the incident and he was sent to government doctors to be examined for injuries. He wanted to be examined in this way so that there was a record if he was arrested and disappeared. He then became afraid and decided he had to depart Iran to protect himself and went into hiding for around ten days with relatives and departed Iran on 5 March, 2013. He claims that following his departure the Iranian authorities searched for him at his mother’s home.

13. The applicant claimed to fear harm due to his opposition to the Iranian government and their ideology.  He claimed that he feared that if he returned to Iran he would be arrested, imprisoned, tortured and even killed because he is wanted in relation to the incident of 22 February, 2016 and because he will be adversely affected by his record with the Iranian authorities including his suspended sentence.  He claimed that he would not be able to associate with his family members because he has relatives in the Sepah who will instigate action against him.  He also feared that because he has sought refuge in a western country the Iranian authorities will see him as a traitor to Iran and will harm him because of that.

14. On 15 August, 2016 the delegate refused to grant the applicant a protection visa.  The delegate rejected the applicant’s claim to protection.

15. The delegate’s decision was a fast track reviewable decision and was referred by the Minister to the second respondent for review on 17 August, 2016. 

16. On 25 September, 2016 the applicant submitted a statutory declaration to the second respondent dated 24 September, 2016.  On 24 November, 2016 the second respondent affirmed the decision under review.

17. It is apparent from the second respondent’s reasons for decision that the second respondent had regard to the material referred to it under s.473CD of the Act. The second respondent also considered the statutory declaration dated 24 September, 2016.

18. The second respondent accepted that the applicant was a national of Iran.  The second respondent accepted that the applicant was contracted for a five year period, as a commissioned officer, in the police in Tehran and he had served for a two year period prior to that in the Iranian Army.  It accepted that he supported reformist figures and ideals in Iran.  However, it did not accept that the applicant was ever the subject of any adverse complaints, investigations or punishments during his time at university, when with the Sepah, or during his police service, because the claims were implausible.  The second respondent considered it implausible that the Iranian authorities would have punished the applicant in the way that he claimed only to allow him to complete his military service with the rank of second lieutenant. It thought it implausible that if his claims were true he would subsequently be able to obtain employment with the police.  The second respondent concluded that the applicant’s claims indicated that he did not have an adverse profile with the Iranian authorities.

19. The second respondent considered that the applicant’s claim to have been investigated and disciplined while working with the police was seriously undermined by the fact that he also held the rank of second lieutenant with the police and that he was given and maintained command of police personnel, up to the completion of his service. The second respondent did not accept that the applicant was ever the subject of any adverse complaints, investigations or punishments by any Iranian authorities during his time at university, with the Sepah, or during his police service.

20. The second respondent found that the applicant’s claim that he was allowed to travel to Saudi Arabia seriously undermined his claim to have earlier been detained for travelling without permission to the United Arab Emirates and for having been detained on suspicion of passing on government intelligence.  The second respondent did not accept that the applicant was ever detained or investigated as he had alleged.

21. The second respondent was not satisfied that the applicant was ever detained for attending a 2009 demonstration or that he was tortured, convicted and issued a suspended sentence by the Tehran Revolutionary Court or made to sign an undertaking not to demonstrate again.  The second respondent rejected those claims because they were inconsistent, the second respondent thought, with the July, 2012 police clearance which the applicant provided to the second respondent.  It stated that the applicant had no record of a penal conviction.  The second respondent put to the applicant that the police clearance document was inconsistent with his claims of having been sentenced by the Revolutionary Court and the applicant explained that the police certificate dealt with criminal matters and the Revolutionary Court dealt with political or religious matters.  The second respondent was not satisfied with the applicant’s explanation and concluded that if the applicant had been given a suspended sentence and orders to be on good behaviour, a conviction would have been recorded on the police clearance.

22. The second respondent found that the inconsistencies in the applicant’s account of being assaulted by passengers in his taxi and reporting that assault to the police (including the applicant’s failure to mention that he reported the assault to the police at the interview with the delegate) seriously undermined the credibility of his claims. The second respondent did not accept that the applicant departed Iran after two men attempted to apprehend him because he had been critical of the Iranian government or that the Iranian authorities searched for him after that.

23. The second respondent went on to find that because it did not accept that the applicant was of adverse interest to the Iranian authorities due to his political opinion or for any other reason, it was not satisfied that there was a real chance that the applicant would suffer serious harm if he returned to Iran.  Moreover, in light of independent country information, the second respondent did not accept that the applicant’s interest in expressing reformist political views privately would result in a real chance of serious harm.  The second respondent accepted country information before it to conclude that the applicant would not face harm because he sought refuge in a Western country.  The second respondent noted that returnees will only be of interest to the authorities if they had done something to attract specific attention or if they had departed Iran illegally.  The applicant had departed legally and the second respondent was not satisfied that the applicant had done anything to attract specific attention.

24. The second respondent affirmed the decision under review.

Grounds of review

1. The application for judicial review, filed on 22 December, 2017 contains one ground of review, namely:

   1.  That the Second Respondent fell into jurisdictional error by unreasonably forming an opinion of a document which it could not have been reasonably able to form on the information available to it at hearing.

   Particulars

   (a)     The Second Respondent formed an opinion the Iranian ‘police clearance’    document, dated July 2012, submitted by the Applicant, evidenced he was not the subject of a ‘penal conviction’ as of the time of issuance of the document;

   (b)     The Applicant gave evidence before the hearing held by the Second Respondent, to the effect he participated in the 2009 Green Movement demonstrations and   was required to appear before the Iranian Revolutionary Court. The Court required him to enter into ‘an undertaking not to protest again’ and he was also given a three year ‘suspended sentence’ requiring him to be of good behaviour,   and

   (c) The Second Respondent found the Applicant could not be the subject of a     ‘suspended sentence’ unless convicted and as the police clearance document did   not disclose a conviction, the Applicant’s evidence of his participation in the 2009 demonstrations lacked credibility.

2. The applicant argues that the second respondent misapplied the evidence before it “to such an extent it was ‘legally unreasonable’ to have done so”.  It is said that the second respondent “arbitrarily rejected the applicant’s evidence he had been given a three year suspended sentence by the Tehran Revolutionary Court” for his participation in the 2009 Green Movement demonstration because the ‘police clearance’ revealed that the applicant had no record of ‘a penal conviction’.

3. That the second respondent rejected the applicant’s claim about that was important, according to the applicant’s submissions, because the second respondent’s view of the unreliability of the applicant’s evidence was formed primarily from the inconsistency of his evidence in relation to his sanctioning by the Revolutionary Court.

4. Further, the applicant argues that the second respondent “exercised a discretion to exclude the applicant’s evidence and took the document at its face value, despite the applicant being a former police officer in Tehran between 2001 and 2006 and his explanation his suspended sentence had been imposed by a ‘political court’ as opposed to a criminal court, which the police clearance was primarily focused upon”.  Put another way, the applicant argues that “the second respondent exercised its discretion to exclude evidence unreasonably”.  He further argues that the second respondent failed to place any weight on what it had been informed by the applicant as to the distinction in Iran of the political court and the criminal court.  He argues that the second respondent could have adjourned the proceedings to allow the applicant to submit new information on this point to enable the second respondent to make an informed decision.

5. The applicant also submits that the second respondent relied upon the failure of the “police clearance” to record anything relating to the sentence given to him by the Revolutionary Court to take an adverse view of the applicant’s credibility and that adverse view infected the whole of the applicant’s case.

Consideration

1. Some of the applicant’s arguments may be dealt with at once.  The second respondent did not ‘exclude’ the applicant’s claims or evidence about his sentence from the Revolutionary Court.  The second respondent clearly had regard to that claim and the applicant’s oral evidence in support of it.  As the first respondent argues however,  the second respondent did not consider that evidence to be convincing because of the concerns with the police clearance certificate that the second respondent identified and because of its overall doubts about the applicant’s credibility which it harboured quite separately to concerns it had arising from the police clearance document. 

2. The second respondent’s reasons make it clear that the second respondent considered each of the applicant’s factual claims separately.  It determined that his claims concerning his treatment at university, by the Sepah and the police, were implausible.  It considered that his claims about his arrest and detention after his return from the UAE to be implausible, but for different reasons.  The findings made about the applicant’s claims concerning those matters were made for reasons that appear independent of the second respondent’s view of the police clearance certificate.  That is to say, the second respondent has considered those claims on their own merits but against the other matters identified by the second respondent and has found them implausible.  The applicant’s argument that the second respondent’s view of the unreliability of the applicant’s evidence was formed primarily from the inconsistency of his evidence in relation to his sanctioning by the Revolutionary Court is not persuasive.

3. The first respondent concedes that the second respondent:

   a)drew an inference that if the applicant had been sentenced by the Revolutionary Court as he had claimed, he would have been convicted of something;

   b)the conviction would have appeared on the “police clearance”; and

   c)because no conviction appeared on the “police clearance”, it was implausible that he was sentenced by the Revolutionary Court as he claimed.

4. However, I accept the first respondent’s submissions that the applicant’s argument that the second respondent should have accepted his explanations about the police clearance document should be seen as an attempt to engage the Court in impermissible merits review.  The inference that the second respondent drew from the police certificate, was open to it.  The certified translation of the police clearance document that was submitted to the delegate by the applicant was titled ‘The Iranian Emblem, The Judiciary, Tehran Revolutionary and Public Prosecutor’s Office (Penal Records Section)’.  It is dated 25 July, 2012 and states that “According to the records existing in Tehran Revolutionary and Public Prosecutor’s Office … [the applicant] … has no record of penal conviction”.

5. The title of the document suggests that it deals with matters in the Revolutionary Court. The inference drawn by the second respondent was that the penal records section’s certification that there was no record of penal conviction in the applicant’s name as at July, 2012 meant that the applicant was never subject to a suspended sentence and orders to be on good behaviour arising from events that occurred in 2009.  That is, the second respondent inferred that a suspended sentence and orders to be on good behaviour would only have been imposed following a penal conviction by the Tehran Revolutionary Court, of which the Tehran Revolutionary and Public Prosecutor’s Office would have had a record.  In the absence of such a record, the second respondent doubted that a conviction was recorded and thus doubted that the applicant was ever subject to a suspended sentence and orders to be on good behaviour.

6. The first respondent submits that this was a logical inference for the second respondent to have drawn and it cannot be said that the second respondent’s inference was one which no rational or logical decision maker could have drawn on the same evidence.  I accept that submission.

7. To the extent that the applicant argues that the second respondent should have obtained new information from the applicant so as to resolve the matter of the police clearance certificate and its precise meaning the first respondent submits that the second respondent was under no such duty. I accept that submission also. As the first respondent submits, s.473DC(2) puts beyond doubt that the second respondent does not have a duty to get, request or accept, any new information, whether the second respondent is requested to do so by an applicant or by any other person, or in any other circumstances. The common law natural justice hearing rule is excluded from reviews by the second respondent by reason of s.473DA(1) of the Migration Act: AFK16 v Minister for Immigration & Anor [2016] FCCA 1826 at [12].

Conclusion

1. The applicant does not establish any jurisdictional error on the part of the second respondent.

2. The application must be dismissed with costs.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate:  

Date:  29 August 2017