EKL18 v Minister for Immigration
[2019] FCCA 3019
•22 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EKL18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3019 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to give proper, genuine or realistic consideration to the applicant’s claim – whether the Authority engaged in fact-finding which was unreasonable, illogical and/or irrational – whether the Authority did not accept the evidence – whether there is jurisdictional error – jurisdictional error made out – application is upheld. |
| Legislation: Migration Act 1958 (Cth), s.36 |
| Cases cited: ARG15 v the Minister for Immigration and Border Protection (2016) 250 FCR 109 |
| Applicant: | EKL18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2373 of 2018 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 22 October 2019 |
| Date of Last Submission: | 22 October 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 22 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr McDonald-Norman |
| Solicitors for the Applicant: | Hunter Shafiz Lawyers |
| Solicitors for the Respondents: | Mr Clarke, Clayton Utz |
ORDERS
The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application is upheld.
A writ of certiorari removing in to this Court be quashed the purported decision of the Second Respondent dated 27 July 2018.
An order by way of mandamus that the Second Respondent, differently constituted, reconsider the application for review in accordance with law and any directions of the Court.
The First Respondent pay the Applicant’s costs fixed in the amount of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 2373 of 2018
| EKL18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR EX TEMPORE JUDGMENT
(Revised from Transcript)
Introduction
The applicant is an Iranian national. The applicant claims he departed Iran on a false passport on 19 April 2013. On 25 January 2017, the applicant lodged an application for a Safe Haven Enterprise visa (application for protection). On 18 October 2017, a delegate of the Minister for Immigration and Border Protection (“the delegate”) refused the visa application. The applicant was referred to the Immigration Assessment Authority (‘the Authority”) for merits review. On 27 July 2018, the Authority affirmed the delegate’s decision. The applicant now seeks judicial review of the Authority’s decision in this Court.
Immigration Assessment Authority Decision
At paragraph 2 of its decision, the Authority notes the material provided by the Secretary and also finds exceptional circumstances to consider new information contained in a Department of Foreign Affairs and Trade (“DFAT”) country information report dated 7 June 2018.
The applicant’s claims for protection are set out in paragraph 5 of the Authority’s decision. They may be summarised as follows:
·The applicant is a citizen of Iran.
·In 2009 he attended protests in support of the Green Movement and was arrested at a protest.
·The applicant is not a political person, but participated in the protest as he hated the Islamic regime.
·The applicant was taken to a detention camp, beaten and interrogated. After 10 days, the applicant was taken to Court, charged with violation of public order and national security and given a five year suspended sentence and a travel ban outside of Iran for three years.
·The applicant claims he was made to report to authorities for one year after his release. He would receive calls from an agent who told him not to attend meetings of more than three people. Once he was called to the Basij headquarters and detained overnight and then released.
·When the applicant was in the Army he was given tough jobs because of his background and his previous detention.
·The applicant was tired of the treatment he received from the regime and decided to leave Iran.
·The applicant departed Iran on a false passport on 19 April 2013.
·The applicant’s brother became more politically active in Iran after 2013, but then fled to Turkey in 2017.
·The applicant claims that his home was raided in 2017 and authorities told his father that they knew the applicant was in Australia.
At paragraph 8 of its decision, the Authority accepted the applicant’s identity and that he is a citizen of Iran. At paragraph 10 of its decision, the Authority accepts that, despite not being a political person, the applicant attended protests in 2009. The Authority found the applicant provided consistent and detailed evidence of his detention on 20 June 2009 and the Authority accepts this occurred.
At paragraphs 12 to 14 of its decision, the Authority deals with the applicant’s claims he appeared before a “Judge’s assistant” at the Ettelaat office and was given a five year suspended sentence. Country information, the Authority found, did not support the existence of a Judge’s assistant or an organisation within the Ettelaat office that had the capacity to convict people and pass sentence. The Authority found country information suggested that most protestors at the 2009 Green Movement protests were released after ten days of detention.
The Authority was not satisfied that the applicant was charged, convicted and sentenced as claimed, or was required to report to authorities during the following year, given his minimal profile in respect of the Green Movement demonstrations. At paragraph 15 of its decision, the Authority referred to country information that indicated that low-level protestors from 2009 would unlikely face serious ongoing harassment, particularly if they have not been involved in any further political activities. At paragraph 16 of its decision, the Authority found that the applicant was not mistreated during his military service due to his previous detention and finds his claims that he was made a “Sergeant”, inconsistent with his claimed mistreatment.
At paragraph 18 of its decision, the Authority accepts as plausible, that the applicant may have attempted suicide following his release from detention in 2009. At paragraphs 19 to 20 of its decision, the Authority found the applicant’s evidence regarding his brother’s political activities up to 2013, when the applicant’s brother fled to Turkey, unconvincing. The Authority does not accept the applicant’s house was raided in 2017 and that the authorities knew that the applicant was in Australia.
At paragraph 22 to 23 of its decision, the Authority was not satisfied that the applicant was of any further adverse interest to Iranian authorities after his release from detention in 2009. The Authority notes that the claimed three year travel ban would have expired in 2013. The Authority does not accept that the applicant departed Iran on a false passport, but that he departed Iran on his own passport.
At paragraph 24 of its decision, the Authority accepts the applicant holds a political opinion against the Iranian regime. At paragraph 26 of its decision, the Authority found that the applicant will not participate in any public activities or voice his political opinion publicly upon return to Iran from Australia. The Authority was satisfied the applicant will not engage in political activity as he is not “generally a political person”, rather than out of a fear of persecution from Iranian authorities.
At paragraphs 27 to 32 of its decision, the Authority deals with the issue of returned Iranians as failed asylum seekers. The Authority found there was no credible evidence to support that Iranian authorities knew the applicant was in Australia and that he would suffer as a result. The Authority concluded that the applicant did not meet the grounds under
s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”) and accordingly affirmed the delegate’s decision.
Grounds of Appeal
Three grounds of appeal are set out in an amended application, filed on 17 September 2019. The particulars are quite lengthy. The grounds are as follows:
Ground 1
In its assessment of whether the applicant would engage in political activity if he were to be removed to Iran, the Second Respondent (the IAA):
a) failed to give proper, genuine and realistic consideration to a relevant integer of the applicant’s claims; and/or
b) engaged in fact-finding in a manner which was unreasonable, illogical and/or irrational.
Ground 2
In its assessment of the applicant’s evidence as to the procedure by which he was sentenced in Iran, the IAA:
a) failed to give proper, genuine or realistic consideration to a relevant integer of the applicants claims; and/or
b) engaged in fact-finding in a manner that was unreasonable, illogical and/or irrational.
Ground 3
In its assessment of the applicant’s evidence as to his participation in anti-regime gatherings in Australia, the IAA engaged in fact-finding in a manner that was unreasonable, illogical and/or irrational.
The Applicant’s Submissions
Ground 1
This ground deals with the issue of past and future political activity. Counsel on behalf of the applicant submitted that the Authority accepted that “he hated the Iranian regime” and had participated in political activities in the past, yet then found the applicant would not engage in political activities in the future because he was “generally not a political person”.
It was submitted that during the applicant’s visa interview, he stated that for the next presidential election, had he remained in Iran “I would have done even much more dangerous activity” and that “I would have done anything which I could have done”.
In addressing the non-participation finding, the Authority misconstrued or failed to understand the nature of the applicant’s claims that he would engage in political activity in the future. There was no rational or logical basis for the conclusion that the applicant would not engage in protest activity in the future if returned to Iran.
Ground 2
This ground deals with the finding of not accepting that the applicant received a five year suspended sentence following the protests in 2009. It was submitted that the country information did not support the Authority’s findings. At paragraph 20 of the applicant’s submissions, the following appears:
The 2013 DFAT Report states that the Iranian judiciary ‘includes Revolutionary Courts and the Special Court of the Clergy (both established by decree of Supreme Leader Khomeini shortly after the revolution), in addition to the civil and criminal courts (2013 DFAT Report [2.19]).
This information must be read in the context of the 2013 DFAT Report’s later observation that:
When dealing with political cases or during times of social unrest, the judiciary has shown a high tolerance for security authorities to bypass the legal system (2013 DFAT report at paragraphs 5.12).
It was submitted that no information was cited by the Authority that was inconsistent with both the applicant’s claims, in that it did not exclude what the applicant had claimed. It was submitted that the applicant had never claimed to have been dealt with by a separate Court, but rather that a Judge’s assistant sitting at the Ettelaat office had dealt with him. There was no contradiction in the relevant sense with the applicant’s evidence properly understood and what was referred to by the Authority (see AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83).
Further, the applicant did not claim that he had been tried by a separate organisation, rather he had been tried by a Judge’s assistant. The Authority wrongly assumed that this was a separate Court to that which was set out in the DFAT reports. The Authority in making a finding that the applicant was “not charged, convicted or sentenced, as claimed” appears to have ignored DFAT information about the “judiciary having a high tolerance to bypass the legal system during periods of unrest or social upheaval”.
The 2009 period, during which over 3 million people participated in protests against the presidential election, was clearly a period of some social unrest. It was submitted that the Authority’s reasoning was flawed in respect of some, but not all of the intermingled findings, but nonetheless may constitute judicial error (see ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109).
Ground 3
The Authority did not accept that the applicant had engaged in anti-regime activities within Australia because the applicant did not say when he had participated in anti-regime gatherings. Had the Authority accepted that the applicant had taken part, at some stage, it may have found that it would have put him at risk if he was returned to Iran from Australia.
First Respondent’s Submissions
Ground 1
Counsel for the first respondent submitted that the Authority accepted that the applicant took part in protests in 2009, was arrested and took note of his claim that “generally speaking, I’m not a political person”.
It was submitted the Authority took into account all off of the applicant’s motivations in joining the protests and was aware of each integer of the claim. It was submitted the Authority made a factual finding that the applicant was not generally a political person and was not satisfied he would participate in protests on return. These findings were open to it and were not unreasonable (see Ekinci v Civil Aviation Safety Authority (2014) 227 FCR 459).
Ground 2
This ground concerns the claim of the applicant being dealt with in a “short court”. It was submitted that the findings of the Authority are consistent with a genuine or a realistic consideration of the claims and it did not engage in unreasonable, illogical or unreasonable fact-finding. There was evidence that was supplied which supported the finding that most protestors were released after 10 days of being detained.
Counsel for the first respondent pointed to the Authority’s decision at paragraph 12, which said that the applicant denied taking part in the protests while he was detained and was later released. It was submitted that this was not consistent with the applicant’s claim that he had been later tried, convicted and sentenced to a five year suspended sentence. It was open to the Authority, in these circumstances, to reject the claim.
Ground 3
It was noted by Counsel that this claim was considered at paragraph 25 of the Authority’s decision, where the authority found the applicant did not raise the claim in his application for protection and the oral evidence he provided at the protection interview was overly general and not consistent with his claim to be “generally not a political person”. It was submitted the Authority is not required to accept claims uncritically. The Authority engaged with the claim but rejected it. There was nothing illogical or irrational in this conclusion.
Consideration
The Court was referred to Minister for Immigration v MZYTS (2013) 230 FCR 431 at paragraph [34], which states the following:
Critically to the determination of the issues raised in this appeal, lawful formation of the state of satisfaction (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect each of the bases articulated, it is to be determined whether that fear is objectively well-founded.
It was put to the Court that the Authority needed to form a correct understanding if it elevated the applicant’s claim of being “generally not a political person”, to a level which justified the finding that he would not be of a profile that would be of interest to Iranian authorities or, alternatively, that he would be a person who would not engage in political activities, including protests, if he was returned to Iran. The Authority accepted the applicant had engaged in demonstrations in 2009, had been arrested and detained for 10 days. In the applicant’s SHEV interview, he stated that he “hated the Islamic regime and was tired of it”. The applicant also stated that if he had remained in Iran for the 2013 elections, he would have protested yet again.
However, the Authority found that if the applicant was returned to Iran, he would not engage in political activities as he is “generally not a political person” and it was for this reason he would not protest, rather than a fear of persecution.
It is tolerably clear from the applicant’s evidence that, whilst he may not consider himself to be a political person, he has engaged in overt political activities, in the form of protests in Iran in the past, including one where the applicant was arrested and held for a period of 10 days. It is not contested that during that time he was beaten and/or tortured.
Whilst the applicant himself may not consider himself to be “political”, there is an available inference that by engaging in protest with others, the authorities in Iran might consider himself to be political. Bearing in mind the applicant was arrested, detained and he is, presumably, known to the authorities and given there has been no regime change in Iran, I find it difficult to understand how the Authority arrived at its assessment that the applicant would not take part in protests if returned, given his very clear evidence that he hated the regime and would have participated in further and much more dangerous activities in 2013, had he not left the country.
I am reasonably satisfied that the Authority failed to give real, genuine and proper consideration to the claim that if the applicant returned, he would not engage in future political activity. The conclusion that the applicant would not do so, was not based on an assessment of the factual material, rather it was based on a conclusion based on the applicant’s own characterisation of himself, which may or may not be accurate. It was for the Authority to assess whether or not the applicant was political, rather than simply taking the applicant’s claim that he did not consider himself to be a political person.
I am satisfied the Authority failed to consider the material before it and the questions that arose. I am satisfied the Authority’s conclusion was a misunderstanding of the applicant’s evidence. I am satisfied that the conclusions in this regard amount to jurisdictional error. The fact that the applicant may have been one of many arrested in the past, in the 2009 elections, is of no moment. The fact that up to three million Iranians protested in 2009, does not make the applicant’s participation in them any less political.
Had the Authority accepted that the applicant may protest again in the future if returned, given he had already been detained, then the Authority, in my view, should have considered the risk of persecution if he was again arrested. I am satisfied that the Authority may have exercised its power differently and this amounts to jurisdictional error (see Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599 at paragraphs [48] – [49]).
I am satisfied that it was a material error on the part of the Authority (see Gill v Minister of Immigration and Border Protection (2017) 250 FCR 309 at paragraph [82]).
Having found in the applicant’s favour in relation to Ground 1, it is not necessary for the Court to deal with Grounds 2 and 3, although I would indicate it would be appropriate for the Authority to consider the matters that were agitated on behalf of the applicant in any future decision.
Conclusion
Accordingly, the application is upheld.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Deputy Associate:
Date: 17 December 2019
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