EHZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2021] FCCA 879

FEDERAL CIRCUIT COURT OF AUSTRALIA
EHZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 879

File number(s): MLG 2528 of 2018

Judgment of: JUDGE RILEY

Date of judgment: 3 May 2021

Catchwords: MIGRATION – Immigration Assessment Authority – protection visa – application to for leave to amend the application – summary dismissal application – application to set aside a subpoena.

Legislation:
Christmas Island Act 1958, s 8A(1)

Federal Circuit Court of Australia Act 1999, sub-ss. 17A(2), (3), s.18

Federal Circuit Court Rules 2001, r.13.10

Limitation Act 1985 (ACT), s.11

Limitation Act 1981 (NT), s.12(1)(b)

Limitation Act 2005 (WA), s.16(d)

Migration Act 1958, ss.5AA(1), 5AA(2)(c), 5J(3)(c)(i), 5J(6), 46A, 197AB, 473DC(2), 189(3), Part 7AA

Cases cited:
CWW18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 26

EIB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 5) [2020] FCCA 1189

EXL19 v Minister for Immigration & Anor [2020] FCCA 1255

FFZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1

GGD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1463

GGD18 v Minister for Home Affairs (No 3) [2019] FCCA 444

Ibrahimi v Commonwealth of Australia (2018) 366 ALR 341; [2018] NSWCA 321

Martens v Stokes [2013] 1 Qd R 136; (2012) 287 ALR 779; (2012) 260 FLR 134; [2012] QCA 036

McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 385 ALR 405; [2020] FCAFC 223

Parker v Commonwealth of Australia (2011) 197 FCR 1; [2011] FCA 1029

Number of paragraphs: 105

Date of last submission/s: 16 March 2021

Date of hearing: 16 December 2020 and 16 March 2021

Place: Melbourne

Counsel for the Applicant: Jay Williams

Solicitor for the Applicant: Ghaffari Lawyers

Counsel for the Respondents: Christopher Tran

Solicitor for the Respondents: The Australian Government Solicitor
ORDERS

MLG 2528 of 2018

BETWEEN:
EHZ18

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE RILEY

DATE OF ORDER:

3 MAY 2021

THE COURT ORDERS THAT:
1.Leave to file the proposed further amended application dated 25 June 2020 be refused.
2.The amended statement of claim filed on 25 June 2020 be summarily dismissed.
3.The subpoena filed on 9 December 2020 be set aside.

REASONS FOR JUDGMENT
JUDGE RILEY:
INTRODUCTION

There are three interlocutory applications before the court, which have arisen in the context of an application to review a decision of a delegate of the Minister for Immigration and to review a decision of the Immigration Assessment Authority (“the Authority”). The applicant did not press the application to review the decision of the delegate.
The applicant was rescued at sea. He was then placed in immigration detention, firstly, on Christmas Island and, secondly, in Darwin. He has subsequently been released into the community on a bridging visa.
The Minister treated the applicant’s application for a Safe Haven Enterprise Visa (“SHEV”) as a fast-track matter, such that the delegate’s refusal of the applicant’s application for a SHEV was reviewed by the Authority on the limited basis afforded by Part 7AA of the Migration Act 1958 (“the Act”).
The applicant argued that, when he was rescued, he was also detained. The applicant argued that the rescue and detention were effected by an Australian navy vessel in Indonesian waters without the permission of the Indonesian authorities. As such, the applicant argued, his detention by the Commonwealth was beyond power, and entitled him to damages for false imprisonment.
The applicant also argued that he was not correctly classified as a fast-track applicant, because he did not enter Australia at an excised offshore place, namely, Christmas Island, but entered Australia when he was taken on board the rescue vessel. The applicant argued that, because the rescue vessel was registered in Canberra, he entered Australia in Canberra. It followed, the applicant argued, that the Authority’s decision was void.
The applicant also argued that the Authority’s decision contained various jurisdictional errors of a more conventional type.
The applicant issued a subpoena to the Minister on 9 December 2020 seeking the production of numerous documents relating to the rescue at sea on 15 June 2013, including communications between Australia and Indonesia.
The interlocutory applications before the court are:
(a)the applicant’s application for leave to file the proposed further amended application dated 25 June 2020;
(b)the Minister’s application filed on 11 September 2020 for summary dismissal of the proposed further amended application dated 25 June 2020 and the amended statement of claim filed on 25 June 2020; and
(c)the Minister’s application filed on 17 December 2020 for a stay of the subpoena issued on 9 December 2020 or alternatively that the subpoena be struck out.
The proposed further amended application dated 25 June 2020 was lodged with the court on that date but was not accepted for filing by the registry because it was purportedly filed without leave. The amended statement of claim filed on 25 June 2020 was accepted for filing on that date.
The Minister has sought summary dismissal of the proposed further amended application dated 25 June 2020, even though it has not been filed. I will treat the Minister’s submissions on the proposed further amended application as being submissions in opposition to leave being granted to file the proposed further amended application dated 25 June 2020.
The applicant sought leave to file the proposed further amended application dated 25 June 2020 and sought the dismissal of the Minister’s interlocutory applications.
BACKGROUND
The Minister’s written submissions filed on 11 September 2020 provided the following summary of the background facts:
7.The applicant is a citizen of Iran. He arrived at Christmas Island on 16 June 2013, and was placed into immigration detention under s 189(3) of the Migration Act 1958 (Cth) (Act).
8.He was held in immigration detention from 16 June 2013 until 7 August 2013. The applicant spent the period 16 June [2013] to 14 July 2013 in immigration detention on Christmas Island and the period 14 July 2013 to 7 August 2013 in immigration detention at Darwin.
9.On 7 August 2013, the applicant was granted a bridging visa. He has held a series of visas since that date. Accordingly, since 7 August 2013, the applicant has not been in immigration detention.
10.On 2 January 2017, the applicant lodged an application for a SHEV.
11.On 1 November 2018 (sic, actually, 2017), the Delegate’s Decision was made. The delegate refused the applicant’s application for a SHEV.
12.On 26 July 2018, the IAA Decision was made. The IAA affirmed the decision not to grant the applicant a SHEV.
(Footnotes omitted).
THE APPLICANT’S CLAIMS
The Authority summarised the applicant’s claims in paragraph 5 of its reasons for decision made on 26 July 2018 as follows:
•He was born in Isfahan, Iran in 1984 and is of Persian ethnicity.
•Although he was born a Shia Muslim he lost his religion at the age of 20 and is now an atheist.
•It was whilst undertaking his military service he realised that religions tell their followers to kill people who do not agree with them. He disagrees with [this] and thinks religion should teach love, not hate and murder. The Mullahs who enforce Islam in Iran themselves do not behave in ways that [follow] Islamic teachings; they steal money, are dishonest and smoke drugs.
•When he was 22 (2006) he was arrested by the Basij (Iranian domestic intelligence) for drinking water on the street during Ramadan. They took him to their headquarters and started beating, kicking and punching him in the face and stomach. They asked him to sign a statement that he would not drink water during Ramadan again. As a visitor to town they forgave him and he was spared the usual punishment of 80 lashings.
•As an atheist he is in constant danger of arrest and arbitrary sentencing; in Iran apostasy is punishable by death.
•Since living in Australia he has become more critical of the Iranian regime. Having access to social media and the free press, he has discovered the level of corruption in the government, particularly the religious authorities. In Iran he was fully absorbed in his work and family and did not pay attention to such things. If he went back to Iran he would not be able to be quiet about it and he would quickly run into trouble with the authorities.
•Because he has been in Australia for more than three years he would be scrutinised if he were to return to Iran and expects the government to question him as they suspect returnees to be spies.
•In addition his ex-wife’s family has threatened to kill him. In 2014 he discussed returning to Iran with the Department of Immigration after an assault left him with a broken nose and he had trouble breathing and needed medical treatment. His family told him they had been contacted by his ex-wife’s family who said that if he went back, they would kill him for having divorced her and abandoning her.
THE AUTHORITY’S REASONS FOR DECISION
In its reasons for decision dated 26 July 2018, the Authority:
(a)accepted that the applicant considered himself to be an atheist but thought that the applicant had exaggerated his claims in that regard and did not face a real risk of harm in connection with his religious beliefs;
(b)considered that the applicant had embellished his claims regarding his ex-wife’s family and did not consider that they presented a serious risk of harm to the applicant; and
(c)considered that the applicant may be subject to some scrutiny after spending five years in a Western country but did not accept that the applicant would be seriously or significantly harmed for this or any other reason.
MATERIAL RELIED UPON
The applicant relied upon:
(a)his amended statement of claim filed on 25 June 2020;
(b)his proposed further amended application dated 25 June 2020;
(c)his amended submissions filed on 9 December 2020;
(d)his outline of oral submissions filed on 16 December 2020;
(e)the affidavit sworn by Ahmad Ghaffari on 19 May 2020 and filed on 19 May 2020;
(f)the applicant’s affidavit affirmed on 4 June 2020 and filed on 4 June 2020;
(g)the affidavit sworn by Ahmad Ghaffari on 24 June 2020 and filed on 24 June 2020;
(h)the affidavit sworn by Ahmad Ghaffari on 29 September 2020 and filed on 29 September 2020; and
(i)the affidavit sworn by Ahmad Ghaffari on 8 December 2020 and filed on 9 December 2020.
The Minister relied upon:
(a)his written submissions filed on 11 September 2020;
(b)his written submissions filed on 17 December 2020;
(c)his further written submissions filed on 5 March 2021;
(d)the unsworn affidavit of Jessica Garnet Connolly filed on 27 May 2020;
(e)the unsworn affidavit of Edward Lysander Rogers filed on 11 September 2020;
(f)the unsworn affidavit of Edward Lysander Rogers filed on 18 September 2020; and
(g)the affidavit affirmed by Edward Lysander Rogers and filed on 17 December 2020.
THE POWER TO SUMMARILY DISMISS
Section 17A of the Federal Circuit Court of Australia Act 1999 relevantly provides that:
…
(2)The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a)hopeless; or
(b)bound to fail;
for it to have no reasonable prospect of success.
Rule 13.10 of the Federal Circuit Court Rules 2001 relevantly provides that:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
In his written submissions filed on 11 September 2020, the Minister said at paragraph 14:
While that power should not be exercised lightly, it may be exercised even if a proceeding (or part thereof) is not “hopeless” or “bound to fail” (s 17A(3))⁸, and even where there are questions of fact to be resolved if, for example, those questions are properly regarded as “fanciful, trifling, implausible, improbable, tenuous or contradicted by all the available documents or evidence”.⁹
: Spencer v Commonwealth (2010) 241 CLR 118 at [60] (Hayne, Crennan, Kiefel and Bell JJ). See also Trkulja v Google Inc (2018) 263 CLR 149 at [22]-[23] (the Court).
: Riva NSW Pty Ltd v Official Trustee in Bankruptcy [2017] FCA 188 at [50] (Perry J); Simjanovska v Department of Human Services [2019] FCA 499 at [26] (Perry J).
HABEAS CORPUS
In his proposed further amended application dated 25 June 2020, the applicant sought interlocutory relief as follows:
Relief in the nature of a Writ of Habeas Corpus directing the first respondent (Minister) to bring the applicant before the Court and show cause as to the legality of the applicant’s detention from 16 June 2013 until the present day, first in closed detention and then in community detention, and to show cause as to the lawful basis for placing restrictions on the liberty of the applicant which ordinary members of the public do not experience and to submit to the further orders of the Court as to the custody of the applicant.
It was common ground that the applicant was held in immigration detention from 16 June 2013 until 14 July 2013 on Christmas Island and from 14 July 2013 to 7 August 2013 in Darwin. On 7 August 2013, the applicant was granted a bridging visa and he has held a series of bridging visas since that date. The applicant was released from immigration detention on 7 August 2013. His affidavit affirmed on 4 June 2020 indicates that he is living in a suburb of Geelong.
The Minister conceded that this court has the power to grant a writ of habeas corpus in appropriate circumstances. That was made abundantly clear by the decision of Allsop CJ, Besanko and Mortimer JJ in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 385 ALR 405; [2020] FCAFC 223.
However, the Minister argued that, since the applicant has held a bridging visa, he has not been in immigration detention, but has been at liberty in the community, so it would be inappropriate to issue a writ of habeas corpus.
The applicant argued that, although he had a bridging visa, he had restrictions on his liberty, such as the inability to study, the inability to work, and the inability to apply for a partner visa onshore. The applicant relied on McHugh, and emphasised that the writ of habeas corpus is ancient and fundamental to liberty.
However, the present case is readily distinguishable from McHugh. In that case, the applicant remained in an immigration detention facility throughout the proceedings. McHugh did not address the notion of community detention, or open detention.
However, on that issue, Judge Humphreys in EXL19 v Minister for Immigration & Anor [2020] FCCA 1255 said at [45] that:
The Court also does not accept the assertion of the applicant that he has been in “open detention” since his release in September 2013. The Court is satisfied that the applicant has been at liberty, on various visas, as a lawful non-citizen. The Court does not accept that conditions that may be placed on the visa, to allow the applicant to remain at liberty within the community, amounts to “open detention” and thus subject to a Writ of Habeas Corpus. …
For reasons of judicial comity, I ought to follow EXL19 unless I am satisfied that it is plainly wrong. I am not so satisfied.
On the contrary, I consider EXL19 to be plainly correct on this point. The essence of the writ of habeas corpus is to compel a person in authority who is detaining another person to produce the detainee to the court. For the Minister to bring the applicant to the court, the Minister would have to first arrest the applicant. There appears to be no lawful basis on which the Minister could presently do that.
On the other hand, the applicant, being at liberty in the community, could bring himself to court anytime he chooses, subject to the COVID-19 pandemic restrictions. In these circumstances, the application for a writ of habeas corpus is misconceived. The fact that the applicant’s bridging visa may be subject to certain restrictions does not alter that basic fact.
FALSE IMPRISONMENT
In the proposed further amended application dated 25 June 2020, the applicant also sought damages for false imprisonment from 16 June 2013 until the present day. As discussed above, the applicant has been at liberty in the community since 7 August 2013. Any false imprisonment did not extend beyond that date.
The hearing of the Minister’s summary judgment application began on 16 December 2020, but did not conclude on that day. For the convenience of counsel, the matter was adjourned for further hearing on 16 March 2021.
On 16 December 2020, the Minister argued vehemently that this court had no power, in the context of an application to review a decision of the Authority, to determine that the applicant had been falsely imprisoned and to award damages for that tort. However, the court asked the Minister to provide authority on that point. In written submissions filed on 5 March 2021, the Minister conceded that this court has associated jurisdiction to deal with that issue.
Section 18 of the Federal Circuit Court of Australia Act 1999 provides that:
To the extent that the Constitution permits, jurisdiction is conferred on the Federal Circuit Court of Australia in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Circuit Court of Australia is invoked.
The Minister ultimately accepted that the application to review the Authority’s decision, and the application regarding false imprisonment, arose from the same substratum of facts. In all the circumstances of this case, I am satisfied that this court has associated jurisdiction in relation to the false imprisonment claim.
The Minister then argued that the false imprisonment claim was statute barred, because the claim needed to be brought under the relevant legislation within three years of the false imprisonment occurring. The Minister argued that the relevant legislation was the legislation of the state or territory where the imprisonment occurred. The Minister relied for that proposition on Parker v Commonwealth of Australia (2011) 197 FCR 1; [2011] FCA 1029, Martens v Stokes [2013] 1 Qd R 136; (2012) 287 ALR 779; (2012) 260 FLR 134; [2012] QCA 036, and Ibrahimi v Commonwealth of Australia (2018) 366 ALR 341; [2018] NSWCA 321.

In Parker, Dowsett J said:
9.… The respondents submit that the decision of the High Court in John Pfeiffer v Rogerson (2000) 203 CLR 503 establishes that the relevant limitation period is to be determined by the law of the place of the tort. They submit that as the imprisonment occurred in Western Australia, the Limitation Act (WA) applies. The applicant accepts that the relevant choice of law depends upon the location of the tort but submits that the Limitation Act 1985 (ACT) (the “ACT Act”) applies. This submission depends upon the applicant’s assertion that the persons who detained him were employees of the Australian Public Service engaged by the Secretary of the relevant Department in Canberra. The applicant further submits that “the essential factual nature of the tort was that the respondents were employees of the Australian Public Service ...”.
…
14.Whilst the liability of the Commonwealth for the actions of its officers may, to some extent, be dependent upon the circumstances of their employment, I do not accept that in this case, in answer to the question posed by the High Court as to where the cause of action, in substance, arose, one would answer that the cause of action arose at the location at which some of the tortfeasors were employed by another tortfeasor. The cause of action clearly arose in Western Australia where the applicant was detained. The applicant’s submission is without merit. The Limitation Act (WA) applies.
In Martens, Wilson AJA said:
[57]This much is clear. Counsel for the appellant did not submit that the locus delicti was PNG. In submitting that the lex loci delicti was the common law of Australia, he must be taken as identifying the place of the tort as Australia. His submission as to the applicable law should not be accepted. The common law of Australia includes the choice of law rules. In the case of an international tort, the locus delicti is not Australia, but the State or Territory where the tort occurred.
[58]In so far as the torts occurred in Australia, they occurred in Queensland, and the lex loci delicti is Queensland law. …
In Ibrahimi, which concerned the tragedy in which 50 people from Suspected Illegal Entry Vessel (“SIEV”) 221 died in a severe storm at Christmas Island, and in which the Commonwealth was sued in negligence, Payne JA said:
164.Further, in accordance with ss 79 and 80 of the Judiciary Act and the common law, the legal system governing this tort action in federal jurisdiction is the lex loci delicti: John Pfeiffer Pty Ltd v Rogerson(2000) 203 CLR 503; [2000] HCA 36 at [53], [87] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); cf Rizeq at [9] (Kiefel CJ), [53], [56] (Bell, Gageler, Keane, Nettle and Gordon JJ).
165.The parties accepted that the Territory of Christmas Island, or the coastal sea surrounding it, was the location in substance of any alleged tortious conduct engaged in by the Commonwealth. Acts in force on the mainland of that Territory are taken to have effect in that sea (Acts Interpretation Act 1901 (Cth), s 15B(3)), and, subject to exceptions not presently relevant, provisions of the law of Western Australia are adopted as law in that external Territory (Christmas Island Act, s 8A(1)). Thus, in practical terms, the substantive issues in this matter are to be resolved according to the common law of Australia as amended by Western Australian legislation, in particular the Civil Liability Act.
The Minister argued that, in the case of the applicant’s detention on Christmas Island from 16 June 2013 until 14 July 2013, the relevant legislation was the Limitation Act 2005 (WA), which applied on Christmas Island by force of s.8A(1) of the Christmas Island Act 1958 (Cth). Subsection 16(d) of the Limitation Act 2005 (WA) provided that an action for imprisonment:
… cannot be commenced if 3 years have elapsed since the cause of action accrued.
Similarly, the Minister argued that, in the case of the applicant’s detention in Darwin from 14 July 2013 until 7 August 2013, the relevant legislation was the Limitation Act 1981 (NT). Subject to certain irrelevant exceptions, s.12(1)(b) of the Limitation Act 1981 (NT) provided that an action founded on tort, such as false imprisonment, is:
… not maintainable after the expiration of a limitation period of 3 years from the date on which the cause of action first accrues to the plaintiff …
The applicant argued that the applicant was detained on a Commonwealth vessel, which was registered in Canberra, so the statute of limitations that applies in Canberra was applicable. Section 11 of the Limitation Act 1985 (ACT), imposes a:
limitation period of 6 years running from the date when the cause of action first accrues to the plaintiff …
In the present case, the initiating application in this matter was filed on 23 August 2018. However, it did not raise the false imprisonment claim. An amended application was filed on 19 May 2020, which, for the first time, did raise the false imprisonment claim.
Based on the authorities mentioned above, it is clear that the tort of false imprisonment, if any, on Christmas Island occurred on Christmas Island, and the tort of false imprisonment, if any, in Darwin occurred in Darwin. It follows that the applicable statute of limitations is the Western Australian statute in the first instance, and the Northern Territory statute in the second instance. As proceedings were not commenced until 23 August 2018, more than three years had elapsed since the allegedly false imprisonments in 2013 on Christmas Island and in Darwin. It follows that the false imprisonment claim in respect of the applicant’s detention on Christmas Island and in Darwin is statute barred and cannot succeed.
It is a little unclear, but it appears that the applicant may also be arguing that he was falsely imprisoned between the time he was rescued at sea, and the time he was placed in immigration detention on Christmas Island. Annexure AG-1 to the affidavit affirmed by Ahmad Ghaffari on 29 September 2020 is a report dated 19 June 2013 by the Australian Customs and Border Protection Service (“ACBPS”) and the Australian Federal Police (“AFP”) regarding SIEV 751.
The report stated that:
(a)at 11am on 15 June 2013, the RCC received a telephone call from a person who said that a vessel with more than 100 people on board was possibly in need of assistance, and was 40 to 50 kilometres from Christmas Island and adrift;
(b)at 11.53am, the RCC issued an urgency broadcast;
(c)HMAS Warramunga and an aircraft responded to the incident;
(d)at 5.07pm, HMAS Warramunga arrived at the vessel 68 nm north-east of Christmas Island;
(e)due to safety concerns and the prevailing weather, HMAS Warramunga transferred the 138 passengers from the vessel to HMAS Warramunga between 6.39pm and 8.32pm on 15 June 2013; and
(f)at 7.36pm on 16 June 2013, the HMAS Warramunga transferred the passengers “into the care of Australian Government agencies on Christmas Island”.
That report does not suggest that the applicant was detained on the HMAS Warramunga. Rather, that report indicates that the applicant was rescued at sea and taken to the nearest port.
In particular (b) to ground 1 of the proposed further emended application, the applicant said that:
The weather was stormy, the boat ran out of petrol and the engine was broken.
Clearly, on the applicant’s evidence, he and his fellow passengers needed to be rescued.
The only evidence that goes to the question of whether the applicant was detained at sea is his affidavit affirmed on 4 June 2020 in which he said:
3.On or around 13 June 2013, my wife and I boarded a boat in Indonesia. It was an extremely dangerous journey. There were rouge (sic) waves with height of 5-10 metres and we had to remove water from the boat constantly.
4.On or around 16 June 2013, our boat was intercepted and stopped by an Australian Navy vessel in international waters.
5.Subsequently, we were arrested and moved to Christmas Island Detention Centre.
The applicant’s affidavit confirms the ACBPS and AFP report that the vessel was in danger of sinking. The applicant said that he was subsequently arrested, but does not claim that he was arrested on the HMAS Warramunga. The much more likely event, and the way I interpret the applicant’s affidavit, is that he was delivered to the authorities on Christmas Island, who ascertained that he did not have a visa, and he was then arrested and placed in immigration detention.
The applicant did not suggest that he did not have as much freedom on the HMAS Warramunga as the circumstances allowed. He certainly did not claim that he was handcuffed, or locked in a cabin.
On the evidence, it seems to me to be fanciful to suggest that the applicant was detained on the HMAS Warramunga. On the contrary, he was rescued at sea, and taken to the nearest port. I consider that the applicant’s claim, if any, that he was falsely imprisoned on the HMAS Warramunga is hopeless and bound to fail.
GROUND 1
The first ground of review in the proposed further amended application dated 25 June 2020 is:
… The decision by the Minister to designate the applicant as [an Unauthorised Maritime Arrival (“UMA”)] or fast review applicant was invalid and as a consequence the decision to detain the applicant and the decision by the IAA was beyond power.
1.The decision made by the delegate of the Minister made on 1 November 2017 to refuse the applicant a SHEV visa and the decision made by the IAA made on 26 July 2018 to uphold that decision was vitiated by jurisdictional error, as the applicant was not a UMA or fast track review applicant as defined by section 5, section 5AA or section 189 of the Migration Act 1958 (Cth). As a consequence, the decision made by the delegate of the Minister made on 1 November 2017 and the decision by the IAA made on 26 July 2018 was beyond power and invalid.
Particulars
The applicant’s entry into Australia
a)The applicant is a citizen of the Islamic Republic of Iran (Iran), who claims protection in the Commonwealth of Australia (Australia) due to a real risk of harm under the refugee and complementary protection criteria for the grounds summarised at [5] of the decision record of the IAA.
b)On 6 June 2013, the applicant departed Iran by plane destined for the Republic of Indonesia, (Indonesia) via a stop over in Doha, Qatar. On or around 14 June 2013, the applicant departed Indonesia for Australia by way of a boat subsequently named Suspected Illegal Entry Vessel 751 (SIEV). The weather was stormy, the boat ran out of petrol and the engine was broken.
Particulars
i)Irregular Maritime Arrival and Induction Interview, 16 August 2013, Page 32 CB, Q70-73.
ii)Application for a Safe Haven Enterprise VISA, Part C, Page 92 CB, Q 46-48.
The search and rescue operation by the Australian authorities
c)At approximately 11:00 AEST, Saturday 15 June 2013, the Australian Maritime Safety Authority Joint Rescue Coordination Centre (AMSA) and the Rescue Coordination Centre (RCC) belonging to the Australian Border Protection Command (BPC), received a phone call from a person reporting a vessel with more than 100 people on board was “possibly in need of assistance.” The caller stated the vessel was approximately 40 to 50 kilometres from Christmas Island and was adrift. At the material time, the applicant and other persons on board SIEV 751 was within the Indonesian Search and Rescue Region and outside the territorial waters and the “contiguous zone” of the Commonwealth of Australia near Christmas Island.
d)At approximately 11:53 AEST, RCC issued an urgency broadcast to vessels in the area, and assigned the incident number AMSA SAR 2013/4024. HMAS WARRAMUNGA responded in support of SAR 2013/4024. The AMSA Dornier SAR aircraft was also tasked to respond. At the material time, the applicant and other persons on board SIEV 751, became formally subject to a search and rescue operation by the relevant Australian authorities.
e)At approximately 17:07 AEST, Saturday 15 June 2013, HMAS WARRAMUNGA arrived at the location of the subject vessel 68nm north−east of Christmas Island. WARRAMUNGA subsequently boarded the vessel at approximately 1759 AEST. Due to safety concerns about the vessel condition and prevailing weather, WARRAMUNGA commenced operations to embark all passengers.
f)The transfer of passengers from the subject vessel to WARRAMUNGA commenced at 1839 AEST. At approximately 20:32 AEST Saturday 15 June 2013, HMAS WARRAMUNGA completed the transfer of all passengers from the subject vessel. The total of passengers was 138; comprising people from Myanmar, Nepalese and Iranians. Due to weather conditions in the vicinity of Christmas Island, the scheduling for a transfer to Australian Government Authorities on island was deferred until first light.
g)At approximately 19:36 AEST, Sunday 16 June 2013, HMAS WARRAMUNGA operating in support of AMSA RCC, transferred the 138 people from SAR 2013/4024 into the “care” of Australian Government agencies at Christmas Island. The confirmed number of people from SAR 2013/4024 is 138, reported to be 80 people from Myanmar, 29 Iranian, 14 Bangladeshi, seven Nepalese, three Malaysian, two Syrian, one Pakistani, as well as two Indonesian crew.
Particulars
i)The Australian Government, “Christmas Island JIG Information Report, SIEV 794”, dated 19 June 2013.
The detention of the applicant on Christmas Island and in community detention
h)On 29 June 2013, an officer for the Minister issued a “notice of detention of unlawful non citizens who are in an excised offshore place” to the applicant pursuant to section 189(3) of the Migration Act 1958 (Cth) and the applicant was detained at the Christmas Island Detention Centre. Yet the date of detention on the notice was 16 June 2013. In July 2013, the applicant was detained at the Darwin Detention Centre.
i)In August 2013, the applicant was transferred into community detention, where he remains and faces restrictions on his liberty which members of the public do not face, including access to employment, study, medical, housing and welfare rights.
Particulars
i)The “notice of detention of unlawful non citizens who are in an excised offshore place” to the applicant pursuant to section 189(3) of the Migration Act 1958 (Cth), dated 29 June 2013.
ii)Application for a Safe Haven Enterprise VISA, Part C, Page 98 CB, Q 81.
Jurisdictional Error 1: The notice of detention on Christmas Island was invalid and beyond power
j)On 29 June 2013, an officer for the Minister issued a “notice of detention of unlawful non citizens who are in an excised offshore place” to the applicant pursuant to section 189(3) of the Migration Act 1958 (Cth). In particular, the date of detention was recorded as 16 June 2013 on the notice of detention, yet the date of the notice of detention was signed on 29 June 2013. The applicant was detained prior to the execution of the instrument and in the circumstances, the detention of the applicant on 16 [June] 2013 was unlawful and/or the notice of detention was invalid and beyond power.
Jurisdictional Error 2: The rescue vessel belonged to the Commonwealth of Australia which was not an excised offshore place for the purposes of the Migration Act 1958 (Cth)
k)As at the material time of 16 June 2013, the applicant and other persons on board the SIEV [751], were rescued at sea within the Indonesian Search and Rescue Region and outside the territorial waters and contiguous zone of the Commonwealth of Australia, and taken onboard a vessel commanded by officers belonging to the Commonwealth of Australia, carrying the flag of the Commonwealth of Australia, which is registered to Canberra, in the Australian Capital Territory (ACT) of the Commonwealth of Australia.
l)At the material time, the applicant was rescued at sea within the Indonesian Search and Rescue Region and outside the territorial waters and contiguous zone of the Commonwealth of Australia. As a consequence, the applicant was not an “offshore entry person” or a “UMA” as defined by section 5, section 5AA or section 189 of the Migration Act 1958 (Cth) and the notice of detention was invalid and beyond power.
m)At the material time, the rescue vessel belonged to the Commonwealth of Australia, was registered to Canberra, which was not an excised offshore place as defined by section 5, section 5AA or section 189 of the Migration Act 1958 (Cth). As a consequence, the applicant was not an “offshore entry person” or a “UMA” as defined by section 5, section 5AA or section 189 of the Migration Act 1958 (Cth) and the notice of detention was invalid and beyond power.
Jurisdictional Error 3: The declaration of the Port on Christmas Island was beyond power and invalid
n)The port on Christmas Island was declared a port on 22 January 1981. Section 3 of the Migration Amendment Act (No 2) 1980 (Cth), which provided the power to proclaim a port on Christmas Island, came into effect a day later, on 23 January 1981. As a consequence, the purported appointment of a port as a proclaimed port, in respect of an area of waters within the Territory of Christmas Island, by notice published in the Commonwealth of Australia Gazette on 22 January 1981, was invalid.
Jurisdictional Error 4: The applicant was not a “UMA” and a fast track reviewable person and the decision by the IAA was beyond power
o)In the premises of ground (1)(a)-(n), the applicant was not an “Offshore Entry Person”, or a “UMAs or “fast track” review candidate for the purposes of section 5, section 5AA or section 189 of the Migration Act 1958 (Cth).
p)At [1] of the decision record, the IAA observed that the applicant lodged an application for a Safe Haven Enterprise Visa (SHEV) on 2 January 2017.
q)At [2] of the decision record, the IAA observed that a delegate of the Minister for Immigration and Border Protection (the delegate) refused the application the application on 1 November 2017.
r)In the last paragraph, the IAA upheld the decision by the delegate of the Minister on 26 July 2018.
s)As a consequence, the IAA misunderstood, misconstrued or misapplied its jurisdiction and as a consequence, the decision made by the IAA was beyond power and invalid, giving rise jurisdictional error.
Regarding alleged jurisdictional error 1, the notice of detention is annexure JGC-1 to the affidavit of Jessica Garnet Connolly affirmed on 27 May 2020. The notice is dated 29 June 2013 and says:
ON YOUR ARRIVAL AT CHRISTMAS ISLAND AT 1545HRS ON 16/6/2013, BASED ON THE AVAILABLE INFORMATION, I REASONABLY SUSPECTED YOU TO BE AN UNLAWFUL NON-CITIZEN AND I THEREFORE DETAINED YOU UNDER SECTION 189(3).
The applicant’s complaint is that the detention occurred prior to the date of the notice. He argued that made the detention unlawful. However, there was no requirement to give a notice prior to detaining a person under s.189(3) of the Act. The notice was legally superfluous, although, from an administrative point of view, it was no doubt helpful. The date on the notice has no bearing on the validity of the detention. This point has no reasonable prospect of success.
Regarding alleged jurisdictional error 2, the applicant argued that he entered Australia when he set foot on HMAS Warramunga, and HMAS Warramunga was not an excised offshore place, so he was not an unauthorised maritime arrival, so he was not fast track applicant.
However, s.5AA(2)(c) of the Act provided that:
A person entered Australia by sea if:
(c) the person entered the migration zone after being rescued at sea.
The applicant was rescued at sea and later entered the migration zone. By s.5AA(2)(c) of the Act, he therefore entered Australia by sea.

Subsection 5AA(1) of the Act provided that:
For the purposes of this Act, a person is an unauthorised maritime arrival if:
(a) the person entered Australia by sea: indent (i) and (ii)
(i) at an excised offshore place at any time after the excision time for that place; or
(ii) at any other place at any time on or after the commencement of this section; and
(b) the person became an unlawful non-citizen because of that entry; and
(c) the person is not an excluded maritime arrival.
By s.5AA(1) of the Act, the applicant is an unauthorised maritime arrival because he entered Australia by sea, “at any … place”, including by setting foot on HMAS Warramunga, and therefore became an unlawful non-citizen and he was not an excluded maritime arrival. This point has no reasonable prospect of success.
Regarding alleged jurisdictional error 3, which concerns the appointment of Flying Fish Cove as a proclaimed port, the appointment of the port has been held repeatedly to be valid: see GGD18 v Minister for Home Affairs (No 3) [2019] FCCA 444 at [38]; GGD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1463; FFZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1 at [29]-[34]; CWW18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 26 at [19], [32]-[42]; and EIB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 5) [2020] FCCA 1189 at [29], [36]-[41].
For example, in FFZ18, Judge Driver said:
26.Ground 1 claims that the Authority’s decision was vitiated by jurisdictional error because the applicant was allegedly not an “unauthorised maritime arrival”, on the basis that the appointment of a port as a proclaimed port at Christmas Island is allegedly invalid.
27. This ground fails for several reasons.
28.First, the issue is irrelevant given that the applicant disembarked onto land on Christmas Island on 17 September 2012. The Territory of Christmas Island was at that date an “excised offshore place” within s 5AA(1)(a)(i) of the Migration Act. The applicant thereby met the definition of “unauthorised maritime arrival” in s 5AA(1)(a) and (2)(a) of the Act. He was thus a “fast track applicant” within the definition in s 5(1) of the Migration Act, and the delegate’s decision was thus a “fast track decision” within s 5(1) and thus a “fast track reviewable decision” within s 473BB, which the Authority had jurisdiction to review under s 473CC(1).
29.Secondly, the port was in any case validly appointed. The only argument for invalidity relied upon by the applicant is that the appointment of a port at Christmas Island on 22 January 1981 was made the day before the commencement of the empowering provision in s 3 of the Migration Amendment Act (No 2) 1980(Cth) (the 1980 Amendment Act). However this does not mean that the appointment was invalid, as the then s 4 of the Acts Interpretation Act 1901 (Cth) has the effect that the appointment was permitted and came into effect on the same day as the empowering provision ie 23 January 1981.
30.At the time of publication of the appointment of a port at Christmas Island in the Commonwealth Gazette No S9 on 22 January 1981 (the Appointment), s 4 of the Acts Interpretation Act, which had then been inserted by s 3(1) of the Acts Interpretation Amendment Act 1976, relevantly provided as follows:
(1) Where an Act (in this section referred to as the Act concerned), being–
(a)an Act enacted on or after the date of commencement of this section that is not to come into operation immediately upon its enactment; or
(b)an Act enacted before the date of commencement of this section that did not come into operation on or before that date, is expressed to confer power, or to amend another Act in such a manner that the other Act, as amended, will confer power, to make an appointment or to make an instrument of a legislative or administrative character (including rules, regulations or by-laws), then, unless the contrary intention appears, the power may be exercised, and anything may be done for the purpose of enabling the exercise of the power or of bringing the appointment or instrument into effect, before the Act concerned comes into operation as if it had come into operation.
(2)An appointment or instrument made by virtue of sub-section (1) or, in the case of such an instrument containing a number of provisions, each of those provisions, takes effect-
(a)on the day on which the Act concerned comes into operation; or
(b)on the day on which the appointment, instrument or provision, as the case may be, would have taken effect if the Act concerned had been in operation when the appointment or instrument was made, whichever is the later.
31.It was necessary for the Appointment to be in place at least when s.13 of the 1980 Amendment Act commenced operation (ie 23 January 1981). That was because s 4 of the 1980 Amendment Act extended the operation of the Act to the Territory of Christmas Island, and s 13 contemplated the possibility of an overseas vessel (within the meaning of s 12) being in port in the Territory of Christmas Island immediately before the commencement of that provision.
32.In the present case, the relevant empowering provision, in 1981 being s 5(1A)(a) of the Migration Act (as inserted by s 3(2) of the 1980 Amendment Act) did not come into operation immediately upon its enactment, and was expressed to confer power to appoint a port in the Territory of Christmas Island, and, thus, was an enactment of the type contemplated by the then s 4(1)(a) of the Acts Interpretation Act.
33.By reason of s 4(2) of the Acts Interpretation Act, the Appointment took effect on the day on which s 3(2) of the 1980 Amendment Act came into operation. That is to say, the Appointment took effect on and from 23 January 1981, not 22 January 1981.
34.It is apparent that the Full Federal Court in DBB16 had not been referred to s 4 of the Acts Interpretation Act or Aban, and in any event their Honours do not state that the appointment of a port at Christmas Island was invalid. For the reasons already given, the Appointment was not invalid, as held in GGD18 v Minister for Home Affairs 7 Anor (No 3). GGD18 is not clearly wrong and so should be followed as a matter of comity. An appeal from GGD18 was dismissed, but the appellant abandoned the arguments put below.
35.In a post hearing submission filed by leave, the Minister also points out that the instrument that presently operates to appoint a proclaimed port at Christmas Island under the Migration Act is the notice dated 22 August 1994, as published in the Commonwealth Gazette, No 34 on 31 August 1994. The Full Federal Court in DBB16 referred to the proclamation of a port at Christmas Island in 1981. The Full Federal Court did not refer to, or deal with, the subsequent 1994 appointment. Nor does the amended application. As such, even if the applicant’s argument concerning the 1981 appointment were correct (although it is not for the reasons already given), that could not provide a basis for granting relief in this case.
(Footnotes omitted).
For reasons of judicial comity, I am obliged to follow previous decisions of this court unless I am satisfied that they are plainly wrong. I am not so satisfied. On the contrary, I consider that they are plainly right. Moreover, GGD18 was upheld on appeal and is binding on this court.
This point does not have a reasonable prospect of success.
Regarding alleged jurisdictional error 4, which concludes, based on the foregoing particulars, that the applicant was not an unauthorised maritime arrival, the foregoing particulars did not establish that the applicant was not an unauthorised maritime arrival.
Ground 1 does not have a reasonable prospect of success.
GROUND 2
The second ground of review in the proposed further amended application dated 25 June 2020 is:
… The violation of fundamental rights, the failure to exercise jurisdiction within a reasonable time and the detention [of] the applicant pursuant to section 189; section 196 and/or section 197AB of the Migration Act 1958 (Cth) was beyond power
2(i)The “No Advantage Principle” and the “No-Resettlement in Australia” regime instituted by successive Australian governments since 2012, predetermined that the applicant and unauthorised maritime arrivals would not have their protection claims heard and determined in Australia, that the applicant and unauthorised maritime arrivals would face five or more years in “onshore” or “offshore” detention and that the applicant and unauthorised maritime arrivals would never be resettled in Australia. As a consequence, the “No Advantage” and “No Resettlement” regime constituted a gross violation of the principles of non-refoulement and were an egregious breach of fundamental and universal human rights, which resulted in an arbitrary and indefinite detention of the applicant, and subjected the applicant to torture, cruel, inhuman and degrading treatment, which was beyond the statutory and non-statutory of the Commonwealth of Australia and/or international law, as adopted or incorporated into Australia law.
2(ii)Alternatively, the decision to exercise any statutory or non-statutory power by the Minister, including the Migration Act 1958 (Cth), or the decision to commence any necessary inquiry, including eligibility for the permanent protection criteria or the temporary protection criteria, and the decision itself, were not made as soon as reasonably practicable and constituted a failure to exercise jurisdiction.
2(iii)As a consequence, the decision by the Minister to detain the applicant pursuant to section 189; section 196 and/or section 197AB of the Migration Act 1958 (Cth), first in closed detention and then open detention from 16 June 2013 until the present day, was unlawful on the grounds that it is beyond the statutory and non-statutory [power] of the Commonwealth of Australia and/or international law, as adopted or incorporated into Australia law.
Particulars
The ‘No Advantage Principle’ – the Expert Panels Report
a)On 13 August 2012, the Commonwealth released the Report of the Expert Panel on Asylum Seekers. Pursuant to Recommendation 1:
The application of a ‘no advantage’ principle [is] to ensure that no benefit is gained through circumventing regular migration arrangements.
b)Pursuant to Recommendation 7:
The Panel recommends that legislation to support the transfer of people to regional processing arrangements be introduced into the Australian Parliament as a matter of urgency
c)Pursuant to Recommendation 8:
The Panel recommends that a capacity be established in Nauru as soon as practical to process the claims of IMA s transferred from Australia in ways consistent with Australian and Nauruan responsibilities under international law
d)Pursuant to Recommendation 9:
The Panel recommends that a capacity be established in PNG as soon as possible to process the claims of IMAs (irregular maritime arrivals) transferred from Australia in ways consistent with the responsibilities of Australia and PNG under international law.
e)Pursuant to Recommendation 14:
The Panel recommends that the Migration Act 1958 be amended so that arrival anywhere on Australia by irregular maritime means will not provide individuals with a different lawful status than those who arrive in an excised offshore place.
Particulars
i)Report of the Expert Panel on Asylum Seekers dated August 2012
“5 years or more’ in detention
f)The then Minister for the Department of Immigration and Citizenship (DIAC), the Hon. Chris Bowen stated in an ABC News Radio interview with Marius Benson, dated 22 November 2012, that it would take five or more years to process refugee claims under the ‘No Advantage Principle.’
Particulars
i)The Hon. Chris Bowen MP, ‘ABC Interview with Marius Benson,’ 22 November 2012.
g)The then opposition leader and former Prime Minister of Australia, the Hon. Tony Abbott and the then Opposition Spokesperson for Immigration and now the Minister for Immigration and Border Protection, the Hon. Scott Morrison, were quoted in ‘The Australian’ newspaper on 30 October 2013 that ‘boatpeople could expect to spend at least five years under a Coalition Government.’
Particulars
i)        The Australian, ‘Tony Abbott sets stay at five years’ 19 October 2012
h)The UNHCR reported that asylum seekers had been told by Australian Government officials that ‘they would have to wait five years before a durable solution would be found.’
Particulars
i)        UNHCR Mission to the Republic of Nauru, 3-5 December 2012 [14]
i)The Australian Human Rights Commission reported that ‘…it will take five or more years to process refugee claims under the ‘No Advantage Principle.’
Particulars
i)The Australian Human Rights Commission, Examination of the Migration (Regional Processing) Package of Legislation, Submission to the Parliamentary Joint Committee on Human Rights, January 2013 page 6.
j)Amnesty International reported that ‘five years could be the wait time for asylum seekers under the ‘No Advantage’ policy.
Particulars
i)Amnesty International, Media Release, 23 November 2012
The Incorporation of the ‘No Advantage Principle’ into the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth).
k)On 18 August 2012, the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth), received assent and amended the Migration Act 1958 (Cth).
Particulars
i)Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth).
l)According to the Revised Explanatory Memorandum, “the Bill implements key recommendations of the Report of the Expert Panel on asylum Seekers provided to the Prime Minister and the Minister for Immigration and Citizenship on 13 August 2012.”
Particulars
i)The Parliament of the Commonwealth of Australia, Migration Legislation Amendment (Regional Processing and other Measures) Bill 2012, Revised Explanatory Memorandum
m)According to the Second Reading Speech by the then Minister for Immigration and Citizenship, dated 31 October 2012: “this bill amends the Migration Act 1958 in accordance with the report of the Expert Panel on Asylum Seekers and the application of the 'no advantage' principle is to ensure that no benefit is gained through circumventing regular migration pathways…”
Particulars
i)Commonwealth, Parliamentary Debates, House of Representatives, 21 September 2011, 10946, (Chris Bowen, MP).
The Regional Resettlement Arrangement (RRA)
n)On 19 July 2013, Australia and PNG and Nauru formally entered into the ‘Regional Resettlement Arrangement’ (RRA), signed by the former Prime Minister, Kevin Rudd and the Prime Minister of PNG, the Hon Peter O’Neil (undated). According to the then Prime Minister, The Hon. Kevin Rudd:
From now on, any asylum seeker who arrives in Australia by boat will have no chance of being settled in Australia as refugees.
o)On 19 July 2013, a joint media statement was released by Kevin Rudd - Prime Minister, Mark Dreyfus- Attorney General and The Hon Tony Burke MP Australian Minister for Immigration, Multicultural Affairs and Citizenship, stating:
As of today asylum seekers who come here by boat without a visa will never be settled in Australia.
p)Subsequently, it was announced by the governments of Australia and Nauru and PNG that any unauthorised maritime arrivals found to be refugees, would “never come to Australia” and would be “resettled in PNG and Nauru.” Further “[p]ersons found not to be refugees may be held in detention or returned to their home country or a country where they had right of residence.”
Particulars
i)Regional resettlement arrangement between Australia and PNG, 19 July 2013
ii)Joint media release dated 19 July 2013, issued by the Prime Minister of Australia, the Minister for Immigration, Multicultural Affairs and Citizenship and the Attorney-General of the Commonwealth.
iii)Transcript of Joint Press Conference 19 July 2013
The Australian Government Fact Sheet – The ‘No Advantage’ Principle still applies to the Regional Resettlement Arrangements
q)As part of the announcements, the Australian Government released a fact sheet on the operation of the RRA, which states that ‘[t]he government will still apply the principle of no advantage’.
Particulars
i)The Australian Government Fact Sheet
Operation Sovereign Borders
r)On 18 September 2013, the Minister for Immigration and Border Protection commenced Operation Sovereign Borders, a military-led, border security operation directed by a Joint Agency Task Force headed by Lieutenant General Angus Campbell DCS AM.
Particulars
i)The Hon. Scott Morrison, Operation Sovereign Borders update 30 September 2013. The Communique by the 22nd Papua New Guinea -Australia Ministerial Forum held at Parliament House in Canberra on 11 December 2013.
The applicant’s arrival in Australia
u)For the particulars articulated at ground (1).
v)In the premises of ground (1), the applicant was not:
i)an "unauthorised maritime arrival" within the meaning of section 5AA of the Migration Act 1958 (Cth);
ii)an "unlawful non-citizen" within the meaning of section 14 and section 189 of the Migration Act 1958 (Cth).
The applicant’s detention at Christmas Island
w)On 29 June 2013, an officer for the Minister issued a “notice of detention of unlawful non citizens who are in an excised offshore place” to the applicant pursuant to section 189(3) of the Migration Act 1958 (Cth). In particular, the date of detention was recorded as 16 June 2013 on the notice of detention, yet the date of the notice of detention was signed on 29 June 2013.
The “No Advantage” and “No Resettlement” regime
x)The applicant participated in various interviews with officers from the Department. The applicant told an officer to the Minister in words to the effect that he was a refugee because he feared persecution in Iran and that he claims protection in Australia.
y)An officer to the Minister gave the applicant various pamphlets and information sheets regarding the “No-Advantage” and the “No-Resettlement” regimes, which were translated in different languages. The officer to the Minister told the applicant the following information.
i)        The applicant may be sent to the Nauru or PNG;
ii)If the applicant was found not to be a refugee, he would be returned to Iran;
iii)If the applicant was found to be a refugee, he may be re-settled in Nauru or PNG;
iv)That the applicant faces five or more years in detention whilst his refugee claims were processed;
v)That the applicant could return to Iran at any time and that he would be eligible for Australian government payments to do so;
vi)The applicant would never be re-settled in Australia.
z)The intention, design and practical effect and operation of the “No Advantage” and “No resettlement” regime on the applicant was to subject to the applicant to (i) an arbitrary and indefinite detention and (ii) to subject the applicant to torture, cruel or inhuman treatment, as the applicant was faced with a choice of five or more years in detention or to return to Iran where he faces persecution as a Christian convert and apostate, which is punishable by the death sentence under Sharia law.
The Christmas Island Immigration and Detention Centre (CIIDC)
aa)The Territory of Christmas Island is an Australian external territory comprising the island of Christmas Island, located in the Indian Ocean, approximately 350 kilometres (220 mi) south of Java and Sumatra and approximately 1,550 kilometres (960 mi) north-west of the closest point on the Australian mainland. It has an area of 135 square kilometres (52 sq mi).
bb)The CIIDC is a high security, purpose built facility used to detain adult males, which comprises the Christmas Island (North West Point) Immigration Detention Centre (IDC) and the Alternative Places of Detention at Phosphate Hill. There are 9 compounds which include two isolation, punishment areas and one protection area.
cc)The CIIDC:
i)comprises compounds, each of which are surrounded by high wire external chain-link fences, checkpoints, gatekeepers, boom-gates and walkways enclosed in cage like [structures];
ii)supervised and guarded by security personnel and CCTV surveillance at all times.
iii)metal reinforced officer’s booths with perspex security screens and metal grills on detainee’s bedrooms;
Restrictions on liberty and freedom of movement at the CIIDC
dd)The applicant could not leave the CIIDC without the permission of the administrator and could only leave the CIIDC under escort by security guards; and for scheduled appointments or excursions.
ee)The applicant could not move freely within the CIIDC and in particular, the applicant was:
i)not permitted to move between compounds without the permission of the Administrator or security guards;
ii)only permitted to move between compounds under security escort to specified appointments or excursions;
iii)under permanent surveillance by security guards, who are positioned inside and outside of compounds and at all entry and exit points of the compounds; and
iv)not permitted to communicate or associate with detainees in other compounds without the permission of the Administrator or security guards.
The “imprisonment” of the applicant at the CIIDC
ff)       In the premises alleged, the applicant was:
(a)Detained;
(b)Imprisoned;
(c)Subjected to torture, cruel inhuman and degrading treatment;
(d)Faced restrictions on his personal liberty not shared by the public generally in Australia;
(e)Suffered psychological and physical harm;
(f)The applicant did not consent to his imprisonment, detention, cruel, inhuman and degrading treatment or the restrictions on his liberty.
(g)The imprisonment, detention and restrictions on his liberty were not imposed by or in execution of, an order or judgment of a court.
The “Screen-In” recommendation by the Department of Home Affairs
gg)On a date to be adduce, the Department determined that the applicant has prima facie claims to engage the protection obligations of the Commonwealth and the applicant was “screened in” to the PODP. The “screen-in” recommendation included discussion of the information the first plaintiff disclosed during the entry interview. The applicant was not notified of this decision until a date to be adduced.
Particulars
i)To be adduced - the “screen in” recommendation by the delegate to the Minister for Home Affairs.
The failure by the Minister of Home Affairs to make a decision to allow the applicant to make a valid application pursuant to section 46A of the Migration Act 1958 (Cth) was unreasonable
hh)The decision by the Minister for Home Affairs to refuse to make a determination with regard to the application for protection in Australia pursuant to section 45 of the Migration Act 1958 (Cth), from a date to be adduced, when the applicant was first screened into the Protection Obligations Determination Process (PODP), was beyond power, for an improper purpose, made in bad faith, contrary to the principles of procedural fairness, and/or unreasonable.
Particulars
i)On 16 August 2013, the Department commenced the relevant inquiries regarding the identity, health and security checks and clearances of the applicant.
ii)On a date to be adduced, the Department had completed the relevant inquiries regarding the identity, health and security checks and clearances of the applicant.
iii)Irregular Maritime Arrival and Induction Interview, 16 August 2013, Page 15 CB, Q70-73.
The decision by the Minister for Home Affairs to delay exercising his power pursuant to section 46A(2) of the Migration Act 1958 (Cth) causing the applicant to become ineligible for permanent protection visa was contrary to law
ii)The decision by the Minister for Home Affairs on 25 August 2014 to delay the exercise of his power under section 46A(2) of the Migration Act 1958 (Cth) until the “new year”, following Royal Assent to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), thereby causing the applicant to became ineligible for a Permanent Protection (Class XA) visa and only eligible for Temporary Protection (Subclass 785) visas, was beyond power, for an improper purpose, made in bad faith, contrary to the principles of procedural fairness, and/or unreasonable.
Particulars
The ministerial submission regarding the transitional arrangements for current permanent protection visa application, received 10 October 2013, signed 14 October 2013 by the Minister for Home Affairs
i)By reason of s 46A(1) of the Migration Act 1958 (Cth), the applicant was not able to make a valid application for a visa.
ii)On 10 October 2013, the Department sent a ministerial submission regarding the transitional arrangements for current permanent protection visa application. It was received October 2013 and returned signed by the Minister of Home Affairs on 14 October 2013. The Minister for Home Affairs:
iii)Noted at [1] that ‘without legislative change there are risks that cannot be removed associated with achieving the Government policy that “no” IMA in the current backlog receives a permanent visa.
iv)Noted at [2] that a small number of permanent Protections visas may need to be granted to IMAs who have met all the prescribed criteria for the visa grant prior to TPV transitional arrangements being implemented.
v)Noted at [3] that there is potentially some 700 people who may be in this group, who have already had the application bar lifted, or who did not require the bar to be lifted and who are still in the refugee status determination process.
vi)Noted in hand writing “cabinet decision” at [4] that “prior to the Act change, the Department will reduce the risk of needing to grant a permanent visa to an IMA by:
a.changing the Migration Regulations 1994 to prevent grant of a permanent Protection visa to unauthorised arrivals;
b.Strengthen procedural guidance for the Ministerial Direction under s 499 of the Migration Act 1958 (Cth) on the “Order of consideration of Protection visas” and
c.Request the Director General of Security to align ASIO security processing priorities with the s499 Direction.
vii)At [13], the Department advised and the Minister agreed for the Director General of Security to request ASIO ‘tightly manage final checks for this cohort” otherwise some 30 additional security clearances per week could be expected.”
i.A further approach for IMASs who are close to the final stages of processing is to tightly manage final checks [for] this cohort. The Secretary has written to the Director General of Security to request that ASIO, while not formally bound by Direction NO. 57, aligns the processing of security checks closely with the s499 direction to assist processing priorities in the Department. Without this, based on recent average flows, some 30 additional security clearances a week could be expected in the IMA caseload.
Particulars
viii)The ministerial submission regarding the transitional arrangements for current permanent protection visa application, sent 10 October 2013, received 14 October 2014 and signed by the Minister on 14 October 2013.
ix)The Minister failed to and did not exercise power under section 46A(2) of the Migration Act 1958 (Cth) to allow the applicant to make a valid application for a Safe Haven Enterprise (subclass 790) visa (SHEV) until 4 August 2016.
x)Letter from Department to applicant – invitation to apply for a Temporary Protection visa or a Safe Haven Enterprise visa, 4 August 2016
The referral by the case manager for the applicant to be placed in the community detention program under section 197AB
jj)On a date to be adduced, the case manager for the applicant initiated a referral to the Department for Home Affairs to make a “residence determination” to allow the applicant to reside at a specified place in the community pursuant to section 197AB and 197AD of the Migration Act 1958 (Cth).
Particulars
i)To be adduced - the referral to the Minister to make a “residence determination” to allow the applicant to reside at a specified place in the community pursuant to section 197AB and 197AD of the Migration Act 1958 (Cth).
The applicant’s transfer to community detention and the restrictions on his liberty
kk)In September 2013, the applicant was transferred into community detention, where he experiences restrictions on his liberty which members of the public do not face.
The decision by the Minister of Home Affairs to delay making a decision to allow the applicant to reside in the community pursuant to section 197AB of the Migration Act 1958 (Cth) was contrary to law
ll)The decision by the Minister to delay the applicant to reside in the community pursuant to section 197AB of the Migration Act 1958 (Cth), from a date to be adduced, when the applicant was first screened into the Protection Obligations Determination Process (PODP) and the Department of Home Affairs recommended the Minister of Home Affairs intervene and consider community detention for the applicant pursuant to section 197AB of the Migration Act 1958 (Cth), until the September 2013, was beyond power, for an improper purpose, made in bad faith or unreasonable.
Jurisdictional error
s)The “No Advantage” and the “No-Resettlement” regime instituted by successive Australian governments since 2012, predetermined that the applicant and unauthorised maritime arrivals would not have their protection claims heard and determined in Australia, that the applicant and unauthorised maritime arrivals would face five or more years in “onshore” or “offshore” detention and that the applicant and unauthorised maritime arrivals would never be resettled in Australia. As a consequence, the “No Advantage” and “No Resettlement” regime constituted a gross violation of the principles of non-refoulement and was an egregious breach of the fundamental human rights of the applicant, which resulted in an arbitrary and indefinite detention; and torture, cruel, inhuman and degrading treatment, which was beyond the statutory and non-statutory of the Commonwealth of Australia and/or international law, as adopted or incorporated into Australia law.
t)The decision by the Minister to commence inquiries into Australia’s protection obligations with regard to applicant and his family and the decision itself, were not made as soon as reasonably practicable and constituted a failure to exercise jurisdiction.
u)In so far as section 189; section 196; section 197AB of the Migration Act 1958 (Cth), purported to authorise the arbitrary and indefinite detention of the applicants in closed and then open detention from 16 June 2013 until the present day, such detention was not and is not necessary, or reasonably capable of being seen as necessary:
i)for the purposes of the applicant’s removal from Australia;
ii)for the purposes of enabling an application for a visa to be made and considered; or
iii)for any other legitimate non-punitive purpose for which the Executive may be validly authorised to detain a non-citizen or alien.
iv)At no material time has the duration of the applicant’s detention been capable of objective determination by a court.
v)As a consequence, the “No Advantage” and “No Resettlement” regimes were in gross violation of Australian and international law and/or the failure to exercise jurisdiction within a reasonable time and the consequential detention of the applicant in closed and then open detention was unlawful and has been unlawful since 16 June 2013 until the present day.

Regarding alleged jurisdictional error 2(s), which argues that the no advantage and no resettlement regime breaches the non-refoulement principles, the fact is that there is no current attempt by the Minister to refoule the applicant. If such an attempt is made, the applicant can bring whatever application he wishes. At present, the argument based on non-refoulement is speculative, so it has no reasonable prospect of succeeding.
As discussed above, the applicant has not been subjected to indefinite detention. He has been at liberty in the community since 7 August 2013, and, in fact, spent less than two months in immigration detention. There is no evidence of the applicant being tortured and such like. This point has no reasonable prospect of succeeding.
Alleged jurisdictional error 2(s) in the proposed further amended application is substantially the same as ground 1 in the amended statement of claim filed on 25 June 2020.
Regarding alleged jurisdictional error 2(t), which appears to concern an alleged delay on the Minister’s part to exercise power under s.46A of the Act, that power is non-compellable. Delay is therefore not actionable. This point has no reasonable prospect of success.
Alleged jurisdictional error 2(t) in the proposed further amended application substantially the same as ground 2 in the amended statement of claim filed on 25 June 2020.
Regarding alleged jurisdictional error 2(u), which alleges that the applicant is in ongoing community detention, that is simply incorrect, as discussed above. This point has no reasonable prospect of success.
Alleged jurisdictional error 2(u) in the proposed further amended application is substantially the same as ground 3 in the amended statement of claim filed on 25 June 2020.
Regarding alleged jurisdictional error 2(v), this relies on the previous aspects of ground 2. As they have no reasonable prospect of success, nor does this point.
GROUND 3
The third ground of review in the proposed further amended application dated 25 June 2020 is:
… The IAA failed to consider the real risk of harm faced by the applicant as an apostate under Iran law and therefore constructively failed to review the applicant’s claims under the refugee and complementary criterion
3.The decision by the IAA was affected by jurisdictional error as the IAA failed to respond to a substantial, clearly articulated argument relying upon established facts with regard to the claims or an integer of those claims at [5] that the applicant fears harm as a conscientious objector, an apostate and non practising Muslim under Iran law, which is punishable by death and therefore the IAA constructively failed to review the applicant’s claims.
Particulars
The protection claims
a)At [8] of the decision record, the IAA found that the applicant is a citizen of the Islamic Republic of Iran (Iran) who claims protection in the Commonwealth of Australia (Australia) due to a real risk of harm for the reasons summarised at [5].
5. The applicant’s claims can be summarised as follows:
•He was born in Isfahan, Iran in 1984 and is of Persian ethnicity.
•Although he was born a Shia Muslim he lost his religion at the age of 20 and is now an atheist.
•It was whilst undertaking his military service he realised that religions tell their followers to kill people who do not agree with them. He disagrees with [this] and thinks religion should teach love, not hate and murder. The Mullahs who enforce Islam in Iran themselves do not behave in ways that [follow] Islamic teachings; they steal money, are dishonest and smoke drugs.
•When he was 22 (2006) he was arrested by the Basij (Iranian domestic intelligence) for drinking water on the street during Ramadan. They took him to their headquarters and started beating, kicking and punching him in the face and stomach. They asked him to sign a statement that he would not drink water during Ramadan again. As a visitor to town they forgave him and he was spared the usual punishment of 80 lashings.
•As an atheist he is in constant danger of arrest and arbitrary sentencing; in Iran apostasy is punishable by death.
•Since living in Australia he has become more critical of the Iranian regime. Having access to social media and the free press, he has discovered the level of corruption in the government, particularly the religious authorities. In Iran he was fully absorbed in his work and family and did not pay attention to such things. If he went back to Iran he would not be able to be quiet about it and he would quickly run into trouble with the authorities.
•Because he has been in Australia for more than three years he would be scrutinised if he were to return to Iran and expects the government to question him as they suspect returnees to be spies.
•In addition his ex-wife’s family has threatened to kill him. In 2014 he discussed returning to Iran with the Department of Immigration after an assault left him with a broken nose and he had trouble breathing and needed medical treatment. His family told him they had been contacted by his ex-wife’s family who said that if he went back, they would kill him for having divorced her and abandoning her.
The country information
b)At [18] the IAA accepted that “[a]ccording to DFAT under Iranian law, a Muslim who leaves his or her faith or converts to another religion or atheism can be charged with apostasy … The punishment for apostasy is subject to judicial discretion. There is no provision in Iran's Penal Code criminalising the act, but the constitution allows judges to turn to Sharia if Iranian law is not clear about the issue. According to Article 160 of the Iranian Penal Code, confessions, the testimony of two male witnesses or the “knowledge of the judge” can each be the basis for a conviction. Convictions for apostasy are not common … The most recent case that DFAT is aware of a person charged with apostasy and sentenced to death was in 2011. As a result of sustained international pressure, the conviction of apostasy was commuted to one of proselytization and the death sentence was dropped. The last known time the death penalty was carried out for apostasy was in 1990 … DFAT considers it unlikely that individuals will be prosecuted on charges of apostasy…”
The DFAT Country Information 2016 and 2018
c)At [20], the IAA erred by failing to take into account the most recent report by “DFAT Country Information Report Iran”, June 2018, at page 25, [3.44] that in March 2017 the Supreme Court upheld the decision of a criminal court in Arak to sentence a 21 year old man to death for apostasy after he made social media posts considered critical of Islam and the Koran while on military service in October 2015.”
3.44Death sentences in apostasy and blasphemy cases are now rare. However, in March 2017 the Supreme Court upheld the decision of a criminal court in Arak to sentence a 21 year old man to death for apostasy. Authorities had arrested the man after he made social media posts considered critical of Islam and the Koran while on military service in October 2015. Human rights groups claim authorities tricked the man into confessing to the charges with the promise of release if he did so. The death sentence had not been carried out as of March 2018. The court also convicted two co-defendants of posting anti-Islamic material on social media, sentencing them to prison.
The IAA’s findings under the refugee criterion
d)At [18], the IAA accepted the “applicant no longer practises Islam. The applicant has generally been consistent in this claim; however, he still appears somewhat confused about his beliefs given he still believes in a higher power and I am of the view he has not fully resolved his actual beliefs in God.”
e)At [20], the IAA “accept[ed] the applicant no longer practises Islam and despite some hesitation as to his beliefs in a higher power I accept he considers himself to be an atheist.” The IAA erred by finding that “[w]hilst the applicant has claimed that he would be outspoken about Islam and those participating in its mourning rituals and more critical of the regime after having access to social media and the free press in Australia, I am of the view that the applicant has exaggerated his desire to speak out about his true beliefs in order to embellish his claims.”
…
f)At [21] the IAA erred by finding that “I am not satisfied that the applicant faces a real chance of harm in connections with his religious beliefs.”
The IAA’s finding under the complementary criterion
g)At [39], the IAA was correct to find that “I accept that the applicant no longer believes in Islam and is an atheist” but erred by finding that “[o]n country information referred to above I am not satisfied that he would be viewed as an apostate or that his non observance of Islamic practices will give rise to a real risk of harm on his return.
In relation to this issue, the Authority said:
16.… I accept that he was detained for a brief period following an incident when he was caught singing under a bridge after the completion of his military service. The applicant has been consistent in this regard. I note no harm came to the applicant as a result of this incident.
17.As to the incident of him being detained for drinking water during Ramadan in approximately 2007 I am not so persuaded. I find it implausible the applicant would randomly walk through the centre of an unfamiliar town and drink water knowing it was Ramadan. I consider it a discrepancy that he stated he had no intention of coming to the authorities’ attention yet he chose to drink in the open publically during an important religious period in Iran. I also note this incident was not raised in his entry interview despite it being the only time in his life when he said he had actually been physically assaulted by the authorities. I consider the applicant has fabricated this claim in order to strengthen his protection claims in this regards. I do not accept this incident occurred.
18.I accept the applicant no longer practises Islam. The applicant has generally been consistent in this claim; however, he still appears somewhat confused about his beliefs given he still believes in a higher power and I am of the belief he has not fully resolved his actual beliefs in God. According to DFAT under Iranian law, a Muslim who leaves his or her faith or converts to another religion or atheism can be charged with apostasy. The punishment for apostasy is subject to judicial discretion. There is no provision in Iran’s Penal Code criminalising the act, but the constitution allows judges to turn to Sharia if Iranian Law is not clear about the issue. According to Article 160 of the Iranian Penal Code, confessions, the testimony of two male witnesses or the “knowledge of the judge” can each be the basis for a conviction. Convictions for apostasy are not common. The most recent case that DFAT is aware of a person charged with apostasy and sentenced to death was in 2011. As a result of sustained international pressure, the conviction of apostasy was commuted to one of proselytization and the death sentence was dropped. The last known time the death penalty was carried out for apostasy was 1990. DFAT considers it unlikely that individuals will be prosecuted on charges of apostasy.
19.Other information in the review material indicates non-practising Muslims form a large part of the population of Iran’s cities. They lead normal lives and are rarely called upon to answer direct questions about Muslim religious practice and are rarely pressured to observe Muslim precepts. Islam plays a smaller role in public life today than a decade ago and the power of the clerics has waned. There is a significant level of non-attendance in mosques in Iran and even people with strong religious beliefs do not attend Friday congregational prayers. DFAT also considers it highly unlikely that the government would monitor religious observance by Iranians – for example, whether or not a person regularly attends mosque or participates in religious occasions such as Ashura or Muharram – and thus it would generally be unlikely that it would become known that a person was no longer faithful to Shia Islam. Perceived apostates are only likely to come to the attention of Iranian authorities through public manifestations of their new faith, attempts at proselytization, attendance at a house church or via informants. Atheists are unlikely to come to the attention of security authorities unless they seek to publicise their views. Other reports suggest there are more and more atheists in Iran and that this is more accepted among some Iranians. Atheists usually do not express their view in public and are thus able to lead normal lives in Iran with[out] facing any further restrictions. Whereas atheists obviously cannot discuss their opinions in public, they often use the internet to present their views anonymously. They have a number of active internet pages and blogs including a Facebook page with more than 187,000 followers. The applicant has presented no evidence that he has been active on the internet on Facebook or other webpages promoting his atheist beliefs either here or in Iran. I am not satisfied that he has done so or, for the reasons given below, he will choose to do so on his return to Iran.
20.I accept the applicant no longer practises Islam and despite some hesitation as to his beliefs in a higher power I accept he considers himself to be an atheist. Whilst the applicant has claimed that he would be outspoken about Islam and those participating in its mourning rituals and more critical of the regime after having access to social media and the free press in Australia, I am of the view that the applicant has exaggerated his desire to speak out about his true beliefs in order to embellish his claims. The applicant has not been vocally active whilst in Australia against Islam or the Iranian regime. There is no pattern of him being outspoken in the past in Iran, the applicant lost his religion nine years ago prior to departing Iran and apart from his claim to have drunk water openly during Ramadan which I have not accepted; there is no evidence of other public behaviour to show he no longer believes in Islam. His singing under a bridge following his completion of his military service I consider was a celebration of having finished his obligations not a public manifestation of any un-Islamic behaviour. I consider the applicant is not political in nature but more focused on his work and desire to lead a relatively normal life. In Iran he was busy with his mobile phone repair business and in Australia he has established a similar business as he advised in his PV interview. Other than private discussions with family members to dissuade them from traveling to Mecca there is no evidence of any public criticism of Islam or the Iranian regime on behalf of the applicant. Furthermore, according to DFAT, within limits well known to Iranians, daily life is vibrant and sophisticated. The government of the day may be criticised robustly, both in public (for example, on social media). However, authorities continue to routinely suppress free speech and punish public criticism of the regime. DFAT assesses that the treatment of human rights defenders, political activists, lawyers and journalists remains particularly parlous. The applicant does not fit any of these profiles.
21.I am not satisfied that the applicant faces a real chance of harm in connections with his religious beliefs.
From those paragraphs, it is clear that the Authority did consider the applicant’s claims concerning the risk of harm to him as an apostate. The applicant’s challenges to the Authority’s findings of fact seek impermissible merits review. The complaints about the 2018 report by the Department of Foreign Affairs and Trade fail to recognise that that report was new information, which the Authority was under no duty to obtain: s.473DC(2) of the Act. In any event, that report did not add anything significant to the 2016 report which the Authority did rely on. Both reports said that the death sentence for apostasy in Iran was in 2011, but the death sentence was commuted following international pressure. Both reports said that the last death sentence for apostasy that was actually carried out in Iran was in in 1990.
This ground does not have a reasonable prospect of success.
GROUND 4
The fourth ground of review in the proposed further amended application dated 25 June 2020 is:
… The IAA misapplied section 5J(6) of the Migration Act 1958 (Cth) by finding the applicant’s political and social media activities in Australia was for the purpose of strengthening his claims under the refugee criterion or alternatively, failed to consider the claims under the complementary criterion
4.The IAA misapplied section 5J(6) of the Migration Act 1958 (Cth) at [20] of the decision record, by finding the applicant’s religious, political and social media activities in Australia was for the purpose of strengthening his claims under the refugee criterion.
Particulars
a)The IAA erred at [20] by finding that the IAA “accept[ed] the applicant no longer practises Islam and despite some hesitation as to his beliefs in a higher power I accept he considers himself to be an atheist.” The IAA erred by finding that “[w]hilst the applicant has claimed that he would be outspoken about Islam and those participating in its mourning rituals and more critical of the regime after having access to social media and the free press in Australia, I am of the view that the applicant has exaggerated his desire to speak out about his true beliefs in order to embellish his claims.”
Subsection 5J(6) of the Act provides that:
In determining whether the person has a well-founded fear of persecution …, any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee.
However, the Authority did not rely on that provision. Rather, the Authority said in paragraph 20 of its reasons for decision:
… The applicant has not been vocally active whilst in Australia against Islam or the Iranian regime. …
There is nothing else in the Authority’s reasons for decision that indicates that it accepted that the applicant had engaged in any conduct in Australia that might have strengthened his claims to be refugee.
The passage quoted by the applicant in the particulars to this ground:
the applicant has claimed that he would be outspoken about Islam … after having access to social media and the free press in Australia …
does not say that the applicant had used social media in Australia to criticise the Iranian regime. The passage merely states that, because of the applicant’s exposure to social media in Australia, he would be more likely to be critical of Islam if he were to return to Iran.
In paragraph 13 of its reasons for decision, the Authority recorded the applicant’s evidence to the delegate as follows:
Asked whether he would be at risk if he returned to Iran because he was an atheist, the applicant said previously he had been quiet and busy in his job. He hadn’t realised what was going on in Iran and what people were doing. When he came to Australia and saw everything on social media and Facebook he could no longer be quiet. Asked in what way he would not be quiet, the applicant said there were a lot of mourning periods in Iran and during those times he would be saying something. He would talk to people and ask them why they were doing it; he would do this in public and be executed for it. In Australia he had freedom of religion, before he had been blind but now he could see. Asked whether he had been critical of the regime since arriving in Australia, he said he was but did not want to do it in public as he did not want to be involved in any crime in Australia or in Iran he just wanted to have freedom of living. In Australia there was no mourning so he didn’t need to.

In other words, the applicant conceded that he had not been publicly critical of the Iranian regime whilst in Australia. It follows that s.5J(6) of the Act had no application.
Moreover, the applicant did not specify how the Authority had misapplied s.5J(6) of the Act, except that the applicant disagreed with the Authority’s factual finding. That submission seeks impermissible merits review.
The applicant did not undertake political and social media activities in Australia. Therefore, there was no occasion for the Authority to consider them under the complementary protection criteria.
The Authority considered the claims that the applicant did make under the complementary protection criteria, in paragraphs 38 to 41 of its reasons for decision.
This ground does not have a reasonable prospect of success.
GROUND 5
The fifth ground of review in the proposed further amended application dated 25 June 2020 is:
… The IAA misapplied section 5J(3)[(c)](i) of the Migration Act 1958 (Cth) by finding the applicant should modify his behaviour so as to avoid a real chance of persecution
5.The IAA misapplied section 5J(3)[(c)](i) of the Migration Act 1958 (Cth) at [20], by failing to consider whether the applicant will be forced to modify his (a) religious beliefs as a conscientious objector, an atheist and non-practising Muslim; or (b) his political opinion or membership of a social group as an apostate and non-practising Muslim in Iran, so as to avoid persecution. Alternatively, the IAA erred by implication that the applicant can or should modify his (a) religious beliefs as an apostate and non-practising Muslim, or (b) his political opinion or membership of a social group as an apostate and non-practising Muslim in Iran, so as to avoid a real chance of persecution.
Particulars
The IAA’s findings
a)The IAA erred at [20] by finding at [20] by finding that the IAA “accept[ed] the applicant no longer practises Islam and despite some hesitation as to his beliefs in a higher power I accept he considers himself to be an atheist.” The IAA erred by finding that “[w]hilst the applicant has claimed that he would be outspoken about Islam and those participating in its mourning rituals and more critical of the regime after having access to social media and the free press in Australia, I am of the view that the applicant has exaggerated his desire to speak out about his true beliefs in order to embellish his claims.”
Paragraph 5J(3)(c)(i) of the Act provides that:
(3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
…
(c)without limiting paragraph (a) or (b), require the person to do any of the following:
(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
…
However, that provision has no application to the present matter. The Authority did not consider that the applicant would or should modify his behaviour upon return to Iran. The Authority noted in paragraph 20 of its reasons for decision that:
(a)the applicant had exaggerated his desire to speak out to embellish his claims;
(b)he had not been vocal in Australia;
(c)he had not been outspoken in Iran in the nine years between claiming to have become an atheist and leaving Iran; and
(d)his singing under a bridge did not lead to him being harmed.
That is, the Authority considered that, if the applicant continued with his usual behaviour, he would not face a real risk of serious or significant harm in Iran. Paragraph 5J(3)(c)(i) of the Act did not arise.
This ground does not have a reasonable prospect of success.
GROUND 6
The sixth ground of review in the proposed further amended application dated 25 June 2020 is:
… The IAA erred by failing to distinguish the application of section 5J(6) of the Migration Act 1958 (Cth) to refugee criterion from the complementary criterion
6.The decision by the IAA was affected by jurisdictional error as the IAA failed to consider the applicant’s claim that he faces a real risk of significant harm as an apostate under the complementary criterion at [39] of the decision record. The IAA therefore erred by misinterpreting, misunderstanding or misapplying the applicable law by conflating the considerations regarding the applicant’s claims as an apostate under the refugee criterion at [20] of the decision record, with the considerations under the complementary criterion at [39] of the decision record.
Particulars
Atheist – non practising Muslim and Apostate
a)At [9], IAA observed that the applicant claimed “he became an atheist at the age of 20. In Australia he has become more critical of the Iranian regime and the religious authorities and if he went back to Iran he would not be able to be quiet and this would get him into trouble with the authorities.”
Country information
b)At [18], the IAA accepted the applicant no longer practises Islam. According to DFAT under Iranian law, a Muslim who leaves his or her faith or converts to another religion or atheism can be charged with apostasy.
The IAA findings under the refugee criterion
c)At [20], the IAA accept the “applicant no longer practises Islam and despite some hesitation as to his beliefs in a higher power I accept he considers himself to be an atheist” but was of the view that the “applicant has exaggerated his desire to speak out about his true beliefs in order to embellish his claims.”
The IAA’s findings under the complementary criterion
d)At [39] of the decision record, the IAA accept[ed] that the applicant no longer believes in Islam and is an atheist. However, on country information referred to above, the IAA was not satisfied that he would be viewed as an apostate or that his non observance of Islamic practices will give rise to a real risk of harm on his return.
…
Jurisdictional error
e)It was not enough for the IAA to simply dismiss the applicant’s claims for protection as an apostates under the complementary criterion by applying the IAA’s findings under the refugee criterion. The IAA failed to appreciate that the considerations under the refugee criterion are different in kind to the considerations under the complementary criterion. The IAA erred by failing to examine entirely the applicant’s claims of apostasy under the complementary criterion and by conflating the findings regarding the applicant’s claims regarding apostasy under the refugee criterion at [20] with the applicant’s claims of apostasy under the complementary criterion at [39] of the decision record. As a consequence, the IAA failed to constructively review the applicant’s claim of apostasy under the complementary criterion, giving rise to reviewable error.
In relation to this ground, the Authority said:
Complementary protection assessment
36.A criterion for a protection visa is that the applicant is a non-citizen in Australia (other than a person who is a refugee) in respect of whom the Minister (or Reviewer) is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm.
Real risk of significant harm
37.Under s.36(2A), a person will suffer ‘significant harm’ if:
·the person will be arbitrarily deprived of his or her life
·the death penalty will be carried out on the person
·the person will be subjected to torture
·the person will be subjected to cruel or inhuman treatment or punishment, or
·the person will be subjected to degrading treatment or punishment.
…
39.I accept that the applicant no longer believes in Islam and is an atheist. On country information referred to above I am not satisfied that he would be viewed as an apostate or that his non observance of Islamic practices will give rise to a real risk of harm on his return.
As can be seen, the Authority was aware of the meaning of complementary protection, and was aware of the meaning of significant harm.
It was open to the Authority to rely on the same country information in its assessment of the refugee criterion as in its assessment of the complementary protection criterion. It was open to the Authority to not be satisfied that the applicant would be viewed as an apostate, or that his non-observance of religious practices would give rise to him facing a real risk of significant harm upon his return to Iran.
There was not a conflation of the refugee and complementary criteria. There was a commonality in the bases on which the applicant claimed he would face serious harm, and the bases on which he claimed he would face significant harm.
This ground does not have a reasonable prospect of success.
THE APPLICATION FOR LEAVE TO AMEND
As none of the grounds in the proposed further amended application dated 25 June 2020 has a reasonable prospect of success, the applicant should not be given leave to file that document.
THE AMENDED STATEMENT OF CLAIM FILED ON 25 JUNE 2020
For the reasons discussed above, the grounds set out in the amended statement of claim filed on 25 June 2020 do not have a reasonable prospect of success. The amended statement of claim should be dismissed.
THE SUBPOENA ISSUED BY THE APPLICANT
The subpoena issued by the applicant to the Minister for Home Affairs and filed on 9 December 2020 required the Minister to produce the following documents:
…
2.Any and all books, documents, decisions, records, submissions, file notes, communications, emails, messages, letters, recordings, transcripts, logs, or other things, together to be known as, but not limited to, any and all “documents”, unredacted except for third party identifiers, at a hearing to be advised administratively regarding the following.
a)The Minister is to produce a copy of the “Christmas Island JIG Information Report, dated in or around June 2013, unredacted except for third party identifiers.
b)The Minister is to produce any and all communications, documents and information regarding the phone calls between persons on board SIEV 751 and the Australian authorities at approximately 11.00am Australian Eastern Standard Time (AEST) on 15 June 2013.
c)The Minister is to produce any and all communications, documents and information regarding the emergency broadcast by RCC to vessels in the area assigned with the incident number AMSA SAR 2013/4024 on 15 June 2013.
d)The Minister is to produce any and all communications, documents and information between persons on board SIEV 751 and HMAS [Warramunga] on or around 17.07 AEST, on 15 June 2013.
e)The Minister is to produce any and all communications, documents and information, regarding the policy of the Australian government to “turn back the boats” and in particular, any communications given by officers of the Commonwealth to turn back SIEV 751 or around 15 June 2013.
i.Note: the Australian government defines a ‘turnback’ as an operation whereby a vessel is removed from Australian waters and retuned to just outside the territorial seas of the location from which it departed. See Commonwealth of Australia, Senate, Legal and Constitutional Affairs Legislation Committee, Estimates, 23 February 2015, 137 (Lieutenant General Angus Campbell).
f)The Minister is to produce any and all communications, documents and information, regarding the policy of the Australian government to “interdict” SIEVs, in particular, any communications given by officers of the Commonwealth to “interdict” SIEV 751 or around 15 June 2013.
i.The term “interdiction” is commonly taken to encompass all ‘measures applied by a State, outside its national territory, in order to prevent, interrupt or stop the movement of persons without the required documentation crossing international borders by land, air or sea, and making their way to the country of prospective destination’. See UNHCR, Interception of Asylum-Seekers and Refugees: The International Framework and Recommendations for a Comprehensive Approach, EC/50/SC/CRP.17 (9 June 2000) 10.
g)The Minister is to produce any and all information, including in particular but not limited to, any and all communications between Australia and Indonesia regarding the boat the applicant was on, on or around 15 June 2013.
h)The Minister is to produce any and all document regarding the decision by the Minister to delay the exercise of his power under section 46A of the Migration Act 1958 (Cth), preventing the applicant from making a valid application until after Royal Assent was given to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), thereby causing the applicant to became ineligible for a Permanent Protection Visa (PPV) and only eligible for a Temporary Protection Visa (TPV) or a Safe Haven Enterprise visa (SHEV).
In view of the refusal of leave to file the proposed further amended application dated 25 June 2020 and the summary dismissal of the amended statement of claim filed on 25 June 2020, there is no proceeding on foot to which the subpoena relates. For that reason alone, it should be set aside. Moreover, there is no reason to believe that any of the documents sought to be produced under the subpoena could have altered the outcome of this proceeding. Indeed the applicant did not press for compliance with the subpoena prior to the hearing of the summary dismissal application. In addition, without the documents sought to be subpoenaed, the applicant would have been able to give direct evidence about being imprisoned on the HMAS Warramunga if he had in fact been imprisoned. He did not give such evidence. For these reasons, the subpoena will be set aside.
COSTS
As the proceeding has taken an unusual course, I will hear the parties on the question of costs.

I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley.
Associate:
Dated: 3 May 2021

File number(s):	MLG 2528 of 2018
Judgment of:	JUDGE RILEY
Date of judgment:	3 May 2021
Catchwords:	MIGRATION – Immigration Assessment Authority – protection visa – application to for leave to amend the application – summary dismissal application – application to set aside a subpoena.
Legislation:	Christmas Island Act 1958, s 8A(1) Federal Circuit Court of Australia Act 1999, sub-ss. 17A(2), (3), s.18 Federal Circuit Court Rules 2001, r.13.10 Limitation Act 1985 (ACT), s.11 Limitation Act 1981 (NT), s.12(1)(b) Limitation Act 2005 (WA), s.16(d) Migration Act 1958, ss.5AA(1), 5AA(2)(c), 5J(3)(c)(i), 5J(6), 46A, 197AB, 473DC(2), 189(3), Part 7AA
Cases cited:	CWW18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 26 EIB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 5) [2020] FCCA 1189 EXL19 v Minister for Immigration & Anor [2020] FCCA 1255 FFZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1 GGD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1463 GGD18 v Minister for Home Affairs (No 3) [2019] FCCA 444 Ibrahimi v Commonwealth of Australia (2018) 366 ALR 341; [2018] NSWCA 321 Martens v Stokes [2013] 1 Qd R 136; (2012) 287 ALR 779; (2012) 260 FLR 134; [2012] QCA 036 McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 385 ALR 405; [2020] FCAFC 223 Parker v Commonwealth of Australia (2011) 197 FCR 1; [2011] FCA 1029
Number of paragraphs:	105
Date of last submission/s:	16 March 2021
Date of hearing:	16 December 2020 and 16 March 2021
Place:	Melbourne
Counsel for the Applicant:	Jay Williams
Solicitor for the Applicant:	Ghaffari Lawyers
Counsel for the Respondents:	Christopher Tran
Solicitor for the Respondents:	The Australian Government Solicitor

ORDER MADE BY:	JUDGE RILEY
DATE OF ORDER:	3 MAY 2021