EEP20 v MICMSMA
[2021] FCCA 154
•28 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
EER20 v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 114
File number(s): SYG 2187 of 2020 Judgment of: JUDGE DRIVER Date of judgment: 28 January 2021 Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of an extension of time for judicial review application. Legislation: Migration Act 1958 (Cth) ss 36, 473DD, 477
High Court Rules 2004 (Cth)
Cases cited: AUS17 v Minister for Immigration and Border Protection [2020] HCA 37
BGV19 v Minister for Immigration & Anor [2020] FCCA 3014
CLS15 v Federal Circuit Court of Australia [2017] FCA 577
Commonwealth; ex parte Marks (2000) 177 ALR 491
Vella v Minister for Immigration [2015] HCA 42
Number of paragraphs: 41 Date of hearing: 28 January 2021 Place: Sydney Counsel for the Applicant: Mr R Chia Counsel for the Respondents: Mr T Reilly Solicitor for the Respondents: Sparke Helmore
Table of Corrections 4 February 2021 Order 2 – “applicant” and “first respondent” have been transposed INTERLOCUTORY ORDERS
SYG 2187 of 2020 BETWEEN: EER20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
28 JANUARY 2021
INTERLOCUTORY ORDERS:
1.The application for an extension of time is refused.
2.The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,000.
REASONS FOR JUDGMENT
JUDGE DRIVER
INTRODUCTION AND BACKGROUND
On 28 January 2021 I refused to grant an extension of time in this matter and also made a costs order against the applicant. The following are my reasons for those orders.
The applicant is a male of Turkish ethnicity and Shia Muslim faith, accepted to have been born in 1994 in Tehran, Iran.
The applicant arrived in Australia on 27 May 2013 as an “unauthorised maritime arrival” and, on or about 27 September 2017, applied for a Safe Haven Enterprise Visa (SHEV).
In his statutory declaration dated 22 September 2017,[1] the applicant stated that in Iran his brother converted to Christianity and tried to convert him and his sister. He stated that, since arriving in Australia with his sister, they attended church services but had not himself decided to convert.
[1] Court Book (CB) at 65.
The applicant stated that in Iran his brother had been arrested with ten other people at a Christian house gathering and that two of those people had subsequently been executed. He stated that his brother had been interrogated by the Sepah, that he and his sister had been placed on a watch list and that, if they returned to Iran, they would be arrested.
On 10 January 2018, the applicant attended a protection visa interview and responded to questions from the Minister’s delegate (delegate) with the assistance of an interpreter in the Persian and English languages.
Following the protection visa interview, the applicant’s representative provided to the Minister’s Department a letter of support[2] from a senior pastor at a church he had been attending in Sydney, a court summons issued by the Tehran Province Penal Court in respect of the applicant’s failure to complete compulsory military service,[3] a further summons from the same court regarding charges brought against his brother for apostasy.[4] The applicant also provided translated copies of court documents and medical report in relation to abuse the applicant suffered as a child in support of his claim that he would suffer harm from his estranged father if returned to Iran.[5]
[2] CB at 156.
[3] This document is referred to in the applicant’s representative’s email at CB 162 and by the Authority at [28] (CB at 222) but had not been included in the Court Book.
[4] CB at 161.
[5] CB at 164-168.
On 2 May 2018, the delegate found that the applicant did not meet the criteria set out in s 36 of the Migration Act 1958 (Cth) (Migration Act) and refused his application for a SHEV.[6]
[6] CB at 172.
The delegate accepted that the applicant is a citizen of Iran and accepted his claims, made at the protection visa interview, that he had in the past been arrested and held in a police station for two days for drinking alcohol, that he had avoided compulsory military service and had left Iran illegally. However the delegate did not accept the authenticity of the court summons regarding his brother, did not accept that the applicant’s brother had converted to Christianity and been charged with apostasy, and did not accept that the applicant fears abuse or harm from his estranged father. The delegate concluded that the applicant had not renounced Islam and his church attendance in Australia would not give rise to a well-founded fear of harm.
The delegate noted that the applicant was currently on remand, having been charged with importing a marketable quantity of a border controlled drug, which is a serious criminal offence, but concluded that the risk of double jeopardy was remote and therefore he did not have a well-founded fear of harm if returned to Iran “as a failed asylum seeker because … he has been charged with importing a marketable quantity of a border controlled drug in Australia and he may be convicted of that crime”.
The Authority review
On 9 May 2018, the delegate’s decision was referred to the Authority for review under Part 7AA of the Migration Act.
On 28 June 2018, the applicant provided written submissions to the Authority (28 June 2018 submissions).[7]
[7] CB at 209, incorrectly dated “20 June 2017”.
On 19 October 2018, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.[8]
[8] CB at 216.
The Authority referred to the applicant’s 28 June 2018 submissions and noted that they contained new claims that on return to Iran the applicant would be harmed because he has been charged with an offence in Australia and his mental wellbeing would be detrimentally affected. However, the Authority held that these new claims were “new information” the consideration of which it was not satisfied there were exceptional circumstances to justify for the purposes of s 473DD of the Migration Act.[9]
[9] Reasons at [5]-[6] (CB at 217).
The Authority also had regard to a June 2018 Department of Foreign Affairs and Trade (DFAT) country information report relating to Christian converts, returned asylum seekers and Iranians who avoided military service, which was new information. The Authority found at [17], noting that the DFAT report reflected the “situation to which the applicant will be returning”, that there were exceptional circumstances to justify considering this new information.
The Authority recorded at [13] that the material before it indicated that the applicant was awaiting trial for importing a marketable quantity of a border controlled drug, but was not satisfied that the Iranian authorities would or could prosecute the applicant for the offence or that the charge could result in harm to him if returned.
The Authority found at [14] that discrepancies between the information the applicant provided at his arrival interview, and his subsequent claims for protection caused concern. In particular, during the arrival interview, the applicant did not raise any claim to fear harm for reasons relating to his brother, sister or religion. In the context of, among other things, the applicant being advised at the time that the arrival interview was his opportunity to provide any reason why he should not be removed, the Authority found at [15]-[16] that it was significant that the applicant “did not even touch on the reason that he subsequently gave in support of his SHEV application, being his brother’s conversion to Christianity and his efforts to evangelise his sister”.
The Authority found that the explanation provided by the applicant for his failure to raise this claim in the arrival interview was “implausible in itself and inconsistent with the other explanations he gave” and rejected all of them. The Authority found at [19] that the credibility of the applicant’s claim regarding his brother’s conversion was undermined by his failure to mention or allude to it during the arrival interview and the implausible explanation provided.
With reference to, among other things, relevant country information regarding forged court documents in Iran, and that the applicant had not claimed that his brother was summonsed in 2015, the Authority, at [22], gave no weight to the purported Court summons directing the applicant’s brother to attend Court on 11 August 2015. Similarly, noting, among other things, that the applicant had not provided any information about charges against him in Iran, and the absence of any independent evidence to support its authenticity, the Authority did not accept at [29] that the purported summons requiring him to attend court in 2013 was evidence that there were charges against him.
With reference to relevant country information regarding the treatment of Christians in Iran, the Authority found at [24]-[26] that the number of Christian converts reported to be imprisoned was a very small proportion of the total estimated number of converts who attended house churches. Further, whilst the authorities threatened to prosecute Christians for apostasy, it was rarely done, and the last time was in 1990. As such, the applicant’s claim that two of the people arrested with the applicant’s brother were executed was implausible and it would have been “extremely unlucky” for him to have been kept in prison for over two years.
Further, the Authority found at [27] that the country information referred to did not indicate that a person would be imprisoned for a lengthy period for being a family member of a Christian convert. There was no independent, reliable evidence before the Authority to support the applicant’s claims regarding:
(a)Christians being executed;
(b)his brother being imprisoned for over two years; and
(c)an Iranian lawyer advising that a penalty of 10 to 15 years imprisonment would be imposed for being the sibling of an apostate.
On account of these findings and its concerns regarding the applicant’s failure to raise these claims in his arrival interview, the Authority was not satisfied at [28] that the applicant’s brother was a Christian convert, or that the claimed raid, arrest, executions and imprisonment occurred. On this basis, the Authority was not satisfied at [35] that there was a real chance that the applicant would be imputed with un-Islamic beliefs or harmed with respect to these claims.
On the basis of the letter from the pastor of the Centre of New Life in Sydney, the Authority was prepared to accept that the applicant’s sister was a Christian and that he attended Christian gatherings in Australia with her. However, the letter contradicted the applicant’s claim that he remained a Muslim as it stated that he wanted to stay in Australia because of his Christian faith, which undermined his credibility. The Authority found at [30] that the applicant’s attendance at Christian gatherings did not lead him to convert to Christianity. Further, the Authority found at [36] that there was no information that the authorities were aware of his sister’s conversion or his attendance at Christian gatherings and was not satisfied that he would be harmed on this basis.
Further, with reference to Iran’s refusal to accept involuntary returnees, the Authority found at [32] that if the applicant returned it would be as a voluntary returnee. The Authority found at [37]-[38], with reference to relevant country information, that the authorities had little interest in failed asylum seekers upon return or prosecuting them for activities conducted outside Iran, or that there was a real chance the applicant would be harmed for practicing a liberal form of Islam.
The Authority found at [39] that, as the applicant left illegally, he would likely be questioned and could be fined upon return but would not be punished further. Further, with reference to the country information, the Authority found at [40] that the applicant would have to perform military service, and could have extra time added, but there was not a real chance he would be prosecuted or punished further. None of these things amounted to serious harm.[10] Further, in considering the applicant’s evidence that he had not had contact with his father since he was 8 years old, the Authority was not satisfied at [43] that there was a real chance of his being harmed by his father.
[10] at [41]
Overall, the Authority found at [45]-[51] that the applicant did not meet the requirements of s 36(2)(a) or (aa).
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 18 September 2020. The applicant now relies upon an amended application filed on 21 December 2020. The substantive grounds in that application are:
1. The Authority failed to make findings concerning the applicant's particular circumstances, failed to apply the statutory criteria to the facts as found, and thereby constructively failed to exercise its jurisdiction.
Particulars
The applicant claimed that he would not voluntarily return to Iran and that he would face serious or significant harm upon return.
The Authority asked itself whether the applicant as a voluntary returnee would attract much interest or questioning from the authorities.
2.Further or in the alternative, the failure of the Authority to invite or consider inviting the applicant to give new information regarding his charges in Australia was legally unreasonable.
3.Further or in the alternative to 1 and 2, the Authority failed to form a state of satisfaction required under section 473DD of the Act in relation to "new information" provided to it on 28 June 2018.
The applicant requested an extension of time under s 477(2) of the Migration Act, on the following grounds:
1.The applicant considers that it is necessary in the interests of the administration of justice to make an order extending the time for making his application for the reasons set out below.
2.The applicant had always intended to lodge his application; however he has been legally unrepresented and has been in incarceration.
3.The application has merit.
4.There is no prejudice to the respondents in granting the extension of time.
The application is supported by an affidavit by Lecia Marie Stark made on 15 December 2020, to which is annexed a transcript of the interview conducted with the applicant at the Minister’s Department in Sydney on 10 January 2018.
At the hearing on 28 January 2021, I granted leave for the applicant to file and rely upon his own affidavit made on 22 December 2020.
Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their counsel at the hearing.
CONSIDERATION
The request for an extension of time
The proposed judicial review application was filed approximately one year and 10 months out of time. That is a very significant delay. In Commonwealth; ex parte Marks[11] the High Court stated that the periods in the High Court Rules2004 (Cth) for seeking certiorari and mandamus should be rigidly applied in all but the most exceptional cases where more than one year has elapsed between the decision and the commencement of the proceedings.[12]
[11] (2000) 177 ALR 491 per McHugh J at [16].
[12] see also Vella v Minister for Immigration [2015] HCA 42 at [3], [20].
The applicant’s explanation for his delay in coming to court lacks clarity. He states that he was in prison at the time of the Authority’s decision and subsequently in immigration detention. He does not state when he was convicted. At the time of his interview with the Minister’s Department he was on remand. At the time of the applicant’s interview with the Minister’s Department, he anticipated his criminal trial would take place in about seven months, meaning in around July 2018.[13] In the 28 June 2018 submissions, the applicant’s representatives state that the applicant was still at that time on remand. Accepting that the applicant was in some form of detention throughout the process of review of his protection visa decision and following, it does not follow that he was under some special disability. He was legally represented before the Authority and the suggestion made at the hearing before me that he was unaware of the Authority decision lacks credibility.
[13] Transcript, page 27, line 13.
The applicant also asserts a mental condition but there is no medical evidence of it and the nature of the mental condition is not specified, apart from a reference to asserted symptoms.
While the Minister would not suffer any prejudice from the granting of an extension of time, the absence of prejudice is not in itself a reason to extend time.
The grounds of review proposed to be advanced by the applicant, while not wholly without merit, do not have sufficient merit to outweigh my concerns regarding the length of the delay and the explanation of it.
The applicant’s first complaint that the Authority considered his risk of harm if returning to Iran voluntarily in circumstances where he said he would not return voluntarily does not, in my view, point to jurisdictional error. The Authority did not misunderstand the applicant’s claims concerning voluntary return.[14] Having regard to the fact that the applicant could not be returned to Iran involuntarily, there is in my view no error in the Authority posing the only hypothetical available to place the applicant in Iran for the purposes of considering the degree of risk he would face there.[15] In that regard, it would have been better if the Authority had referred specifically to the Memorandum of Understanding entered into between Australia and Iran on 19 March 2018, which defines the class of persons who can be involuntarily returned to Iran under that bilateral agreement, which class of persons does not include the applicant.
[14] cf CLS15 v Federal Circuit Court of Australia [2017] FCA 577 at [60].
[15] cf BGV19 v Minister for Immigration & Anor [2020] FCCA 3014.
In relation to the second proposed ground, the applicant complains that the Authority did not seek further information from the applicant about the criminal charges against him. The Authority was aware of the existence of those charges from the delegate’s decision and the applicant’s submission to the Authority. If the applicant had wanted to provide more specific information, he could have offered it to the Authority and it might potentially have been considered as new information. On the basis that the applicant’s submission to the Authority, it was entitled to proceed on the basis that the applicant had been charged but not convicted in Australia.
The third ground when read with the applicant’s submissions claims the Authority failed to comply with s 473DD in relation to the applicant’s claims concerning the criminal charges and the data breach. This is not a fair reading of the Authority’s reasons at [5], which in substance find neither paragraph of s 473DD(b) is satisfied in relation to the claim that the applicant could be harmed by the community in Iran because of his Australian charges,[16] before considering s 473DD(a). The Authority’s reasons at [5] are thus in accordance with AUS17 v Minister for Immigration and Border Protection[17] at [11]-[12]. The data breach claim was not “new information” as it was before the delegate,[18] and was considered by the Authority at [31] and [38].
[16] CB 210.
[17] [2020] HCA 37.
[18] CB 243 at [16].
CONCLUSION
The interests of the administration of justice do not require the granting of an extension of time for the judicial review application in this matter. The consequence of the refusal of the extension of time is that the judicial review application is incompetent.
The Minister sought an order for costs fixed in the sum of $7,000. The applicant did not wish to be heard on costs.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 4 February2021
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