Ecw19 v Minister for Home Affairs
[2020] FCCA 2108
•3 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ECW19 v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 2108 |
| Catchwords: MIGRATION – Application for judicial review – extension of time – safe haven enterprise visa – no matters of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Cases cited: BYR17 v Minister for Immigration and Border Protection [2018] FCA 1324 CLS15 v Federal Circuit Court of Australia [2017] FCA 577 DEL18 v Minister for Immigration [2019] FCCA 2792 EYJ17 v Minister for Immigration and Border Protection [2019] FCA 347 Minister for Home Affairs v EWP17 [2019] FCA 205 |
| Applicant: | ECW19 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | LNG 115 of 2019 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 4 May 2020 |
| Date of Last Submission: | 4 May 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 3 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Barns |
| Solicitors for the Applicant: | Refugee Legal Service Tas Inc |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
LNG 115 of 2019
| ECW19 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (‘the IAA’) dated 16 August 2019 with respect to a Safe Haven Enterprise visa (‘protection visa’) application.
The applicant arrived in Australia as an irregular maritime arrival in June 2013 from Indonesia, where he had spent 9 to 10 days prior to travelling to Australia. The applicant had travelled to Indonesia by air, relying upon his Iranian passport. On 7 July 2016, the applicant was invited to apply for a Temporary Protection visa or Safe Haven Enterprise visa. The applied for the protection visa on 19 January 2017, and his application was refused by a delegate on 22 July 2019. His application was then referred to the IAA, who affirmed the delegate’s decision not to grant the visa on 16 August 2019.
Extension of Time
The application was filed on 22 October 2019 (according to the date of sealing), some 25 days outside of the 35 day time limit for applications for judicial review.
The applicant’s solicitor swore an Affidavit in October 2019, setting out that the applicant had sought free legal advice from the Tasmanian Refugee Legal Service and had been advised that there were no grounds for an application for judicial review. Following the applicant seeking a second opinion from a member of the Bar acting pro bono, Counsel for the applicant concluded that there were two grounds which he sought to argue.
Whilst the delay is not perfectly explained (as identified in the detailed submissions from the first respondent), it appears to me that it is sufficiently well explained (at least in the context of a protection visa application) to result in the real question for determination of whether or not to extend the time limit being one of whether or not the applicant has an arguable case.
The Applicant’s Claims
The applicant’s claims are summarised by the IAA (at paragraph [5] of the decision) as follows:
· He is of Kurdish ethnicity and left Iran due to the harsh and unjust treatment of the Iranian regime towards Kurds. He was personally targeted by members of the Basij. He cannot relocate to any other part of Iran because the Basij can find him anywhere;
· If he were returned to Iran he may face a prison sentence for seeking asylum in another country.
The applicant further summarises his claim in the Outline of Submissions filed on 13 March 2020 (at paragraphs [1]-[7]):
1. The referred Applicant (the Applicant) was born [omitted] 1999 in [omitted] Ilam province, and is an Iranian national; CB 175 [6].
2. He completed military service from 7 January 2009 to 8 May 2010; CB 175 [6].
3. During his military service, the Applicant asserts that he saw injustices undertaken in the name of Islam which caused him to lose his faith; CB 177 [13].
4. The Applicant has never been involved with the Basij; CB 176 [7].
5. The Applicant owned a hardware shop which he claims was visited by the Basij who informed the Applicant that he had to pay them a monthly sum “or they would “find” (sic) something in his shop to get him in trouble…”; CB 176 [8].
6. He claims the amount payable increased to two-thirds of his takings. After approximately two years of this, the applicant refused to pay. As a result of this reprisal, he asserts the Basij verbally abused him and beat him, breaking his ribs; CB176 [8].
7. Furthermore, the Applicant claims that the Basij threatened to seriously harm the Applicant and his family. He did not return to his shop after this; CB 176 [8].
The IAA noted that the applicant had said at his arrival interview that he had never been involved with the Basij, and that there had been no specific incident that had led to his departure: see paragraph [7] of the decision. Later, in his protection visa application, the applicant said that the Basij had required him to pay monthly amounts when he was operating a hardware store, and when he eventually refused, he was abused and beaten. He says he and his family were threatened, following which he did not return to his shop, but left the country two weeks later: see paragraph [8] of the decision. The difficulties the applicant had with the Basij were described in worse terms at his protection visa interview, where he outlined a number of occasions where he said he was harmed by the Basij: see paragraphs [9], [10] and [11] of the decision.
The IAA member listened to the audio record of the arrival interview (at paragraph [10]) and it appears from the terms of paragraph [10] of the decision that the member also listened to the protection visa interview. Not surprisingly, the member concluded that the increasing frequency of claimed events involving the Basij reflected poorly on the applicant’s credibility: see paragraph [11]. The IAA rejected the claim that the applicant had been the victim of extortion or was targeted or beaten by members of the Basij: see paragraph [11].
In paragraph [12] of the decision, the IAA rejected the claim that the Basij had any interest in the applicant. In paragraph [13] the IAA turned to consider the finding by the delegate on whether or not the applicant was an atheist and would therefore face harm on return to Iran. The member noted that the applicant had never claimed to be an atheist, and had stated that his problems were with the Basij and not directly related to religion, having said at one point, ‘[w]e are all Shia’.
The IAA also noted that the applicant had said that the injustices he had witnessed be committed in the name of Islam had caused him to lose his faith. Importantly, the IAA noted that the applicant did not state that he feared persecution or other harm due to his loss of faith, and therefore did not proceed further in its discussions on this issue, as it concluded that such a claim had not been made. It is apparent from the reasoning (at paragraph [13]) that the IAA did not accept that the applicant was an atheist.
It appears to have been reasonably open to a decision-maker to conclude that the applicant was not an atheist on the limited material before the IAA, as the applicant had never said more than the claim that he had ‘lost his faith’, yet had still maintained that ‘[w]e are all Shia’. I do not accept that a loss of faith is equivalent to a decision to actively become an atheist: a loss of faith may be no more than a loss of belief in the level of benevolence and care of God as propounded by a particular religion, rather than a decision that there is no God.
The IAA also considered whether or not the applicant would be at risk if he were to return to Iran, noting that as he no longer held his passport, he would have to return on temporary travel documents and that in such circumstances, the Iranian diplomatic representatives overseas would ordinarily alert the authorities at the airport in Iran. It was found that this would generally result in questioning, with the vast majority of people being released after an hour or two. The IAA did not accept that the applicant had done anything that would attract adverse attention on return, as the IAA had concluded that the applicant was not politically active and there was no suggestion that the applicant would be imputed to have a political opinion, and thus rejected this claim.
Grounds of Judicial Review
The applicant pursues two grounds for judicial review, having abandoned the second ground on his initial application, replacing it with a third ground on the amended application filed on 12 March 2020.
Ground One
The first ground is framed as follows:
1. That the Second Respondent committed jurisdictional error by failing to consider an integer of the Applicant's claim
Particulars
The Second Respondent considered the issue of the Applicant’s return to Iran as a failed asylum seeker and with temporary travel documents. However, the Second Respondent, having accepted that the Applicant is of Kurdish ethnicity failed to consider that integer in assessing whether the Applicant faced harm for a Convention reason if returned to Iran as an involuntary returning failed asylum seeker.
In support of this ground, the applicant argues that the IAA failed to consider his case as one where his return to Iran would only be on an involuntary basis, but instead, considered the case on the basis that he would be a voluntary returnee if not granted a protection visa.
The IAA discusses the applicant’s potential return (at paragraph [18] of the decision), saying:
18. At his arrival interview the applicant stated that he would be punished and possibly imprisoned on return due to his seeking asylum in Australia. The applicant departed from Iran using his own passport. As he no longer has the passport, I accept that he would return on a temporary travel document or laissez-passer. DFAT advises that where temporary travel documents have been issued by Iranian diplomatic representatives overseas, authorities at the airport will be forewarned about a person’s return because of Iran’s sophisticated government systems. However, the person will generally only be questioned if they have done something to attract the specific attention of authorities; the vast majority of people questioned would be released after an hour or two [FN omitted]. I do not accept that the applicant has done anything, either in Iran or in Australia, that would attract adverse attention on return. I have found above that the applicant is not politically active; there is no suggestion arising from the evidence that the applicant would be imputed with a political opinion that would be of concern to the authorities for any reason. I am therefore not satisfied that the applicant faces a real chance of harm on return to Iran either because he may draw the attention of the authorities because of the documents on which he would most likely be travelling, or because he has sought asylum overseas.
Counsel for the applicant argues that the applicant had identified early in his material that he was not open to voluntarily returning to Iran; for example, he answered question 47 on his application form (at CB p.25) as follows:
Voluntary Return
47. Do you wish to be considered for voluntary return to your home country? ✔ No
Counsel for the applicant also pointed to the submissions made on the applicant’s behalf to the delegate (at CB p.43), that ‘[i]f the applicant [ECW19] is to be returned to Iran, he will be subject to severe punishment and even imprisonment. Due to his lack of legal status in Iran, if arrested he will not have a chance of a fair trial.’ Counsel also pointed to question 33 on the application form (at CB p.23) where the applicant had said that:
Reasons Not To Return To Country of Nationality
33. What do you think will happen to you if you return to your country of nationality (residence)?
I am not a political person, it will not be a major thing happen to me, maximum a prison sentence for asking for asylum in another country, God forbid the day that I get back to IRAN.
It does not appear that any submissions were made on the applicant’s part to the IAA.
Counsel for the applicant argued that the applicant’s case was such that the potential return to Iran was put on the basis of an involuntary return, as the applicant had indicated he would not voluntarily return to Iraq. Counsel then argued that the IAA had determined the matter on the basis of a voluntary return, relying upon the general terms of paragraph [18] of the reasons. Whilst the applicant had expressed fear of what might occur to him if he were to return to Iran, it was clearly rejected by the IAA in its decision.
There was no material or argument before the IAA to the effect that there was a difference between a person who returned voluntarily to Iran and a person who may be extradited from Australia. Had there been an argument to this effect, the reasoning in CLS15 v Federal Circuit Court of Australia [2017] FCA 577 would need to be carefully considered. However, as occurred in EYJ17 v Minister for Immigration and Border Protection [2019] FCA 347 (per Logan J), the IAA were not obliged to assess return scenarios that had not been posited by the applicant in the claims which he had made: see paragraph [10] and also Minister for Home Affairs v EWP17 [2019] FCA 205.
In this case, the claim before the IAA was that the applicant would be at risk of harm if he were to return to Iran, as he would be identified upon returning to that country. It was not put to the IAA that there would be a material difference between a voluntary or involuntary return; it was merely put that the risk arose if he was identified returning. The distinction, however, has little practical impact upon the reasoning as the IAA approached the matter on the basis that the applicant would have to return on a temporary travel document, and that therefore the Iranian authorities would be aware of his return. The IAA have dealt with the claim as articulated by the applicant and therefore have not erred.
I am not persuaded that there is anything raised by the applicant in his material in this case on the question of an involuntary return potentially having a different outcome to a voluntary return in circumstances where the decision maker acted upon the basis that with a voluntary return the authorities in Iran would be alerted to the applicant’s return. The IAA went on to consider what may occur upon the applicant’s return to Iran (whether voluntarily or not) in circumstances where Iranian authorities were alerted (due to his travel documents), and became aware that he was a returned failed asylum seeker. The likely consequences are discussed in paragraph [18] of the decision. The substance of the claim, as put by the applicant, has been dealt with by the IAA.
In any event, as Counsel for the Minister points out, the country information before the IAA indicated that involuntary return to Iran was not possible, thus it was not a circumstance the IAA were required to consider: see generally EWJ18 v Minister for Home Affairs [2019] FCCA 2092 at [12] and DEL18 v Minister for Immigration [2019] FCCA 2792 at [35].
In these circumstances, I am not persuaded that the applicant has demonstrated an arguable case with respect to ground 1.
Ground Two
Ground 2 was not pursued by the applicant.
Ground Three
Ground 3 of the application was framed in the following terms:
3. The Second Respondent failed to consider an integer of the Applicant’s claim. Namely that the applicant is an atheist, and the failure to consider the integer of the claim amounts to jurisdictional error.
Particulars
The applicant said that he had lost his faith “because all crimes they committed was in the name of lslam and God.”; CB 77
The IAA found that it did not have to deal with a claim as to whether the applicant faced harm on return to Iran as an atheist; CB 177 [13]].
The IAA turned its mind to this issue (at paragraph [13]), saying:
13. In assessing the applicant’s claim, the delegate considered whether the applicant faced harm on return to Iran, due to being an atheist. I note that the applicant has at no point claimed to be an atheist. He did note in his PV application that while undertaking his military service he saw injustices being done in the name of Islam and this caused him to lose his faith. He has however consistently identified as a Shia Muslim and during the PV interview noted that his problems with the Basij were “not directly related to religion”. He added “We are all Shia”. I am not of the view that the applicant has at any point claimed to face harm in Iran on religious grounds. …
The applicant set out (at question 13, CB p.14) that he was of the Shia religion in his application for the visa, answering the question about religion as follows:
13. Religion
Shia
Counsel for the applicant relies upon a comment made in answer to a question on the applicant’s application for the protection visa (at CB p.77) that, inter alia:
… I also found out how corrupt the regime was, the officers made favours like putting blind eye on wrong doings of people connected to the regime or harassed others to make them pay. The whole system from judiciary, to government officials to religious leaders and their families everybody is corrupt. People like us, without connection are the one who suffer the most. The result of my military service was getting anxiety and depression. I lost my faith because all crimes they committed was in the name of Islam and God. I lost my hope and joy for life because I realized without having connection or being ruthless and corrupt I could not even dream of living a good life. When I finished my military service I felt very down and depressed, so my father encouraged and supported me to open a shop selling building materials…
[emphasis added]
I am not persuaded that a claim of a loss of faith, on its own, demonstrates a rejection of a belief in God in favour of atheism. In this regard, had the determination by the delegate been the subject of judicial review, it appears to be arguable that the delegate’s finding that the applicant had become an atheist was without an adequate evidentiary foundation.
On review, it was open to the IAA to form its own view as to the applicant’s circumstances on the material before it. In circumstances where a person expresses a loss of faith as a result of things done in the name of Islam, but goes on to describe themselves as a Shia, it is rationally open for the IAA to have concluded that the person is not an atheist. As the IAA was conducting a review of the decision of delegate, it was open to them to reach a different conclusion to that reached by the delegate. For these reasons, the ground does not appear to be arguable.
In addition, the IAA noted that there had never been a claim articulated on the basis of the applicant having been an apostate or becoming an atheist, and that as such, the authority was not required to consider such a claim, as explained by Bromberg J in BYR17 v Minister for Immigration and Border Protection [2018] FCA 1324.
In any event, none of the claims by the applicant were said to relate to his ‘loss of faith’, let alone to any perception that he may have been atheist. In the circumstances, I am not persuaded that the applicant has established an arguable case in this regard.
Conclusion
As I am not persuaded that either ground presents an arguable case, it is not appropriate to grant an extension of time.
Costs
The parties were agreed that costs should follow the event, fixed at $7,467.00 as the matter was prepared and argued as if it were a final hearing.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 3 August 2020
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