EKV17 v Minister for Immigration

[2018] FCCA 1839

FEDERAL CIRCUIT COURT OF AUSTRALIA

EKV17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1839

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: EKV17

First Respondent:  MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:   IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 979 of 2017

Judgment of: Judge Vasta

Hearing date: 2 July 2018

Date of Last Submission: 2 July 2018

Delivered at: Brisbane

Delivered on: 2 July 2018

REPRESENTATION

The Applicant appearing on their own behalf with the assistance of an interpreter

Solicitors for the First Respondent: Minter Ellison

ORDERS

1. That the Application filed 3 October 2017 be dismissed.

2. That the Applicant pay costs to the First Respondent fixed in the sum of $7,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 979 of 2017

EKV17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY 

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 4 September 2017, the Immigration Assessment Authority (“the IAA”) affirmed a decision of the Minister not to grant EKV17 a protection visa. 

2. In short, EKV17 made the following claims to the Minister in support of his application for a protection visa.  He said that he was a citizen of Iran; his family were not religious and they did not believe in Islam or any other religion but believes in God.

3. He claims that he had started dating a woman by the name of Elam.  A few weeks after dating her in December 2012, she asked him to attend a wedding with her and her mother in Ahvaz.

4. He travelled to Ahvaz, and the only person he knew was a friend called Nasa.  He contacted Nasa to ask whether he could change his clothes at Nasa’s house so he could go to the wedding all neatly attired, and Nasa said that this could not happen at his house because he lived too far away from the wedding but directed him to another residence.  He met Nasa there.  Inside the residence was an older woman, two younger women, and an old man.

5. The Applicant claims that he got changed and as he was leaving the premises, he was pulled over by the authorities who claimed that he had “disseminated corruption”, been in an illegal sexual relationship, had used a satellite and other banned equipment.  He said that he was detained for three days and interrogated and tortured.  He was sent for a drug test, and then he was taken to Court.

6. At Court, the judge accepted that he had been there accidentally but accused him and the woman Elam of an illegal relationship, and the two of them were sentenced to 50 lashes.  That sentence was implemented in approximately February 2013. 

7. He claimed that Elam’s father and brother are Sepah members and they started threatening and harassing him at his workplace and demanded that he marry Elam.  He refused to do so.  He left his job and went into hiding in April 2013, but about a month later, the family of Elam found him, and they attacked him.  As he tried to escape, he said his hand was caught in a door and was broken.

8. Two days later, he said that he stayed with a relative in Tehran and then decided to leave the country.  He flew out of Iran legally on his own passport and then disposed of his passport, and it would seem he got in contact with a people smuggler and ended up as an unauthorised maritime arrival in Australia in mid-2013. 

9. The delegate found that there were insufficient reasons to give the Applicant a protection visa, and, because it was a fast track decision, the IAA then reviewed the information.  The IAA looked at all of the information that was before it.

10. Eventually, the IAA came to a conclusion that they did not accept the veracity of his claim.  There were too many inconsistencies with the story.  The IAA did not accept that the person Elam, being the daughter of a father in Sepah, would ever have been able to go to a wedding with a man that she had only known for a couple of weeks and, further, that the mother would not have let the daughter go with the Applicant alone to another house for the purpose of getting changed. 

11. Because the story about having to get changed was an integral part of his story, he was asked why he had to get changed, and he said that he would be very hot and the clothes he wore would have meant that he needed to change into something fresh. The IAA had before it the date of this wedding and also found that the weather report on that date in Ahvaz showed that it was cold and raining all day and the average temperature was about 18 degrees Celsius.

12. Upon that information being putting to the Applicant, he acknowledged that it was not hot, but the reason that he did not want to sit in the car for a long time in his suit was that he did not want it to be creased.  The whole story according to the IAA just lacked plausibly and credibility.  The IAA went through, really, a history of what the Applicant had experienced in Iran.

13. In the end, the IAA found that at paragraph 31:

    The applicant married his wife in 2005.  He was arrested at a party with his girlfriend whilst married to his wife in 2006/2007 and was charged and convicted with being in a relationship with a woman outside of marriage and for having a satellite dish. His former girlfriend’s family pressured him to marry her and threatened that they would ruin his married life although I have not accepted that they continued to do so at the time he left Iran in 2013. He subsequently divorced his wife in 2008. He does not come from a religious family and does not believe in Islam or any religion but believes in God.  He left Iran legally and sought asylum in Australia. I am not satisfied that, on the entirety of these circumstances, there was a real chance of the applicant suffering serious harm in the reasonably foreseeable future on return to Iran.

14. As I have earlier said, the IAA came to the conclusion that this story about meeting another woman called Elam and the family chasing her was a fabrication.  The IAA then looked at the complementary protection assessment criteria, having found that the Applicant did not meet the requirements of the refugee assessment, and came to the conclusion that at paragraph 37:

    Considering the applicant’s circumstances and profile as a whole, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Iran, there is a real risk of him suffering significant harm.

15. The Applicant lodged an application to review in this Court on 3 October 2017.  It had one ground and one ground only, that ground was:

    1. The Immigration Assessment Authority and the delegate of the Minister for Immigration and Border Protection erred in law in making this decision.

16. The Applicant came before Registrar Buckingham on 13 November 2017 where the Registrar set the matter down for hearing today but ordered that if the Applicant was to file an amended application, given that this application had no particularity to it at all, it had to be done by a certain time. 

17. On 13 February 2018, I had been approached by both parties, in a written communication, to allow an extension of the time for the Applicant to file such material.  That further order that I had made gave the Applicant until 2 April 2018 to file another application.  It also allowed for him to file written submissions.

18. The Applicant has filed no material at all.  He has appeared before me today in person and aided by an interpreter.  He conceded to me that the IAA has not made any mistake and all he wished to do was to put forward some further grounds as to why he should not be removed from Australia and sent back to Iran. 

19. As I explained to him, that is not the job of this Court.  All this Court can do is review the decision of the IAA to ensure that the IAA has complied in all respects with its statutory duty to review and give a fresh set of eyes to all of the circumstances to ensure that any decision of the Minister was made properly. 

20. Having looked through the very careful reasons of the IAA, I am not satisfied that there has been any jurisdictional error.  Notwithstanding that, the Applicant has not urged me to find any particular error jurisdictional error, I have still undertaken that task.  Therefore, I am left with no option but to dismiss the application with costs in the standard form.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 18 October 2018