EMT18 v Minister for Home Affairs

[2019] FCCA 660

FEDERAL CIRCUIT COURT OF AUSTRALIA

EMT18 v MINISTER FOR HOME AFFAIRS  & ANOR [2019] FCCA 660

Catchwords:
MIGRATION – Immigration Assessment Authority – application for an extension of time – whether the Authority had no jurisdiction to review the matter – whether the applicant was not an unauthorised maritime arrival – whether the Authority acted illogically, unreasonably and irrationally – application for an extension of time under s 477 of the Migration Act 1958 (Cth) is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5H, 5AA, 36, 189, 473BB, 473CC, 473CB, 473DD, 476, 477

Cases cited:

DBB16 v Minister of Immigration and Border Protection [2018] FCAFC 178

Sadiqi v Commonwealth (No 2) (2009) 181 FCR 1

Applicant: EMT18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2452 of 2018

Judgment of: Judge Street

Hearing date: 15 March 2019

Date of Last Submission: 15 March 2019

Delivered at: Sydney

Delivered on: 12 April 2019

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: Australian Presence Legal

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application for an extension of time under s 477 of the Migration Act 1958 (Cth) is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $6,500.00.

DATE OF ORDER: 12 April 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2452 of 2018

EMT18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for an extension of time under s 477 of the Migration Act1958 (Cth) (“the Act”) seeking a Constitutional writ within the Court’s jurisdiction under s 476 of the Act in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 15 June 2018 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise Visa. 

2. The applicant was found to be a citizen of Iran and his claims were assessed against that country. 

3. The proceedings in this Court were commenced on 30 August 2018, 41 days outside the 35 day period provided. The application for an extension of time complies with the formal requirement under s 477(2) of the Act and an explanation has been given for the delay in relation to the steps taken by the applicant to obtain legal advice and representation. The explanation for the delay which is not insignificant is not satisfactory. However, no particular prejudice in the present case is said to have been suffered by the first respondent by reason of the delay in the commencement of the proceedings.

4. The merits of the application must also be taken into account at an impressionistic assessment. The Court must determine whether it is necessary in the interests of the administration of justice to extend time. The Court must take into account that the applicant has no right of appeal if the extension of time is refused.

5. Evidence has been adduced that identifies the applicant arrived in Australia at Christmas Island on 17 September 2012 and was detained pursuant to s 189(3) of the Act.  The applicant has filed an affidavit identifying that he was on a boat which was intercepted by an Australian Navy vessel and that the applicant remained in the vessel at all times until disembarked at Christmas Island. The applicant alleged that the Australian Navy vessel moored at Ashmore Reef. The applicant alleged that the single men were placed in two smaller vessels whilst moored at Ashmore Reef and that the women and children remained on the larger vessel and were told they would be taken to Darwin. The applicant alleged that about six days later a larger vessel came to carry the passengers and that the applicant was transferred to that larger vessel before being taken to Christmas Island.

6. The applicant claimed to fear harm from the Iranian authorities on the basis of his previous problems in Iran, religion, imputed political opinion and status a failed asylum seeker from the west. 

7. On 22 September 2017, a delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise Visa. 

8. On 29 September 2017, the Authority wrote to the applicant explaining that the application had been referred to the Authority for review. The letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions. The applicant did provide new information and submissions which were referred to in the Authority’s reasons consistent with the Authority considering the whole of the requirements under s 473DD of the Act in respect of the new information. The Authority in its reasons identified having regard to the material given by the S

9. ecretary under s 473CB of the Act and summarised the applicant’s claims for protection. 

10. The applicant alleged that he had a contract to supply meat to a firm which was a subcontractor for the Ministry of Defence. The firm ceased to pay for the goods as the cheques failed to clear and when the applicant persisted in demanding payment, it was alleged that agents were sent to beat and intimidate the applicant. The applicant alleged that the subcontractor sent men to intimidate the applicant at his place of business and he was assaulted and required treatment in hospital. 

11. The Authority found the applicant had been subject to low levels of scrutiny but was not satisfied that the applicant would suffer a real chance of any harm and certainly not serious harm, arising from scrutiny if returned to Iran. 

12. The Authority referred to the applicant’s claims concerning his financial and legal difficulties and the applicant commencing to trade on his own account as a wholesale meat supplier. The Authority referred to one of the applicant’s client firms being a subcontractor for the Iranian Ministry of Defence. The applicant alleged he had a contract with them to supply meat which the subcontractor would then supply to the Ministry and to other official clients. The applicant claimed that in late 2011, this firm paid him with a cheque which failed to clear. The applicant alleged he followed it up with the subcontractor but claims he was asked to return in a week by which time the issue would be resolved.  The applicant alleged that when he returned the next week another manager told him to come back later. The applicant claimed he went to the firm three times in total to seek redress for the bounced cheque since it was for a substantial amount of money. After the third time, the applicant went to the subcontractor in order to obtain his money. The applicant alleged agents from the subcontractor came to his place of business, argued with him, beat him and tried to intimidate him into silence. The applicant alleged he was badly beaten.  The applicant alleged after he recovered, he attempted to lodge a complaint at the local Court only to find that the subcontractor had already lodged a complaint against him alleging that the applicant had provided the cheque which would not clear and that it was the applicant who owed money. The applicant alleged he was detained by the courts and was held in a prison in Tehran for a month and was only released after his father put the family home up as security for his bail. 

13. The applicant alleged that following his release, he made plans to depart Iran. In support of the applicant’s claims, the Authority referred to the applicant providing a translation of an Iranian subpoena dated 12 March 2017. The subpoena is issued in the applicant’s name and indicates he has 10 days to submit himself to the Iranian Criminal Court or he would be the subject of arrest. 

14. The Authority referred to the second document being a document titled “Legal Proceeding” addressed to the applicant’s father dated 12 March 2017. The documents indicates that the applicant’s father had offered his residence in Tehran as collateral for the applicant on 25 May 2012 and that if the applicant did not submit himself to the authorities in response to the subpoena, then the collateral would be auctioned and the proceeds would be confiscated by the government. The Authority found these documents tend to confirm that the applicant is involved in legal proceedings in Iran which have resulted from unspecified events which occurred in 2012.

15. The applicant departed Iran at the international airport on a valid passport issued in his own name which he had legally obtained. The Authority found the applicant had given several different accounts of these events and a range of information which bares on the truthfulness of his claims.

16. The Authority referred to some of the material being contradictory and suggested that the applicant had not been entirely candid. The Authority referred to the statement of claim suggesting the applicant’s difficulties with a government department, but when questioned at his protection visa interview, the applicant said that the difficulties actually were with the firm which was a subcontractor to the Minister of Defence.

17. The Authority referred to the applicant’s Safe Haven Enterprise application where the applicant referred to the visit and fight with the firm’s agents approximately one month prior to his departure and that later in the same statement the applicant alleged a few weeks later he went to the courts to lodge his complaint and was arrested and held for two days. The Authority referred to the protection visa interview where the applicant said he was held for a month and later that he was held for approximately 20 days and found these matters to be significantly at odds. 

18. The Authority referred to the applicant giving conflicting accounts about the living arrangements of his family after his departure. The Authority referred to inconsistencies in the delegate’s various accounts that were raised by the delegate during the applicant’s protection visa interview.  The Authority referred to the reasons offered in respect of the inconsistencies. The Authority referred to considering the inconsistencies in the explanations and was not persuaded the applicant was telling the truth and found the applicant’s account about the other firm bouncing cheques to be fanciful. The Authority found the reasons offered by the applicant for his accounts to be contradictory and that they implied the applicant had been misleading and providing factually incorrect explanations and the Authority was not satisfied the applicant is telling the truth. 

19. The Authority referred to concluding that the applicant provided cheques which bounced sometime around late 2011 to 2012.  The Authority found the applicant was brought before an Iranian court and charged with financial offences resulting in a brief period of detention for approximately two days until his father posted bail. The Authority accepted that the applicant was exposed to difficult conditions but did not accept that such treatment in the circumstances amounted to torture. 

20. The Authority found the applicant was able to provide a reasonable explanation for the events of the fight and was willing to accept that the applicant was beaten around this period of time in the circumstances he describes. The Authority, however, did not accept that the beating was at the behest or on behalf of the Iranian regime or the Ministry of Defence. The Authority concluded the applicant was most probably beaten because he owed money to his creditors due to his submitting cheques which did not clear. 

21. The Authority did not accept that the applicant’s father was imprisoned.  The Authority referred to the DFAT Country Information Report: Iran April 2016 (“the DFAT Country Information Report”) indicating that it is unlikely that a person could leave Iran whilst the subject of an arrest warrant. The Authority concluded that the applicant had mischaracterised much of his evidence in order to suggest that he was being persecuted by the Iranian authorities and that he was suffering harassment from the government department. The Authority did not accept this claim. The Authority found on the applicant’s own evidence, he was in a financial dispute with a subcontractor and faced charges in Iran.  The Authority did not accept the applicant would be imputed with an anti-regime political opinion if he returned to Iran.

22. The Authority did accept the applicant’s particular circumstances indicated that he departed Iran and whilst he was the subject of ongoing legal proceedings related to his irregular financial dealings.  The Authority found the evidence indicated that if he returns to Iran, the applicant would likely be arrested in connection with his legal proceedings and would be processed under Iranian law for financial crimes committed in 2011/2012. 

23. The Authority referred to the DFAT Country Information Report and found that the applicant’s case relates to routine financial irregularities. The Authority referred to having found the applicant is not a credible witness and concluded that the applicant has fabricated, mischaracterised and exaggerated large portions of his account of events in Iran in order to depict himself as a victim of persecution, rather than providing an accurate account of his circumstances in Iran and his financial difficulties.  The Authority accepted that the applicant may face penalties for breaching bail conditions set in 2012 and that he may be penalised for his financial irregularities including a threat to his liberty as a result. The Authority did not accept the applicant’s account of the risk he faces, and found he had not provided an honest and detailed account of the financial irregularities that led to his arrest in Iran. The Authority found the applicant attempted to mislead the Australian authorities, suggesting the charges against him were fabricated. The Authority found the applicant’s evidence in regard to this misleading and found that the Authority had no information as to the extent or significance of the financial irregularities and, therefore, could not be satisfied that the applicant would face lashes or amputations as a punishment if returned to Iran.

24. The Authority was not persuaded the application of Iranian law to the applicant would amount to systematic or discriminatory conduct or persecution since it would be due to the non-discriminatory application of a generally applicable law.  The Authority found that it was not satisfied the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion.

25. The Authority referred to the applicant exploring Christianity and was not satisfied that the applicant has a well-founded fear of persecution on this basis.  

26. The Authority referred to the applicant being a failed asylum seeker from a western country and was not satisfied the applicant would face a real chance of harm arising from the time he spent in Australia or as a failed asylum seeker from a western country.

27. The Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act. The Authority found the applicant did not meet the criteria in s 36(2)(a) of the Act.

28. The Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Iran from Australia, there is a real risk the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review. 

29. Mr Karp of counsel on behalf of the applicant identified that there were only two proposed grounds on which the applicant contended there was a sufficiently arguable case on the merits to warrant an extension of time under s 477 of the Act.

The proposed grounds

1. Proposed ground 1 and proposed ground 4 are as follows:

   1. The IAA had no jurisdiction to review the matter, the Applicant not being an Unauthorised Maritime Arrival under s5DD of the Migration Act 1958.

   4. The IAA failed to have regard to the corroborative material found at CB208 in finding that the Applicant was not beaten at the behest or behalf of the Iranian regime or the ministry of defence, and in doing so acted illogically, unreasonably and irrationally.

Proposed ground 1

1. In relation to proposed ground 1, Mr Karp referred to the applicant’s assertion as to the transfer between Australian Navy vessels that occurred at Ashmore Reef. 

2. Mr Karp referred to the decision in DBB16 v Minister of Immigration and Border Protection [2018] FCAFC 178 (“DBB16”) and contended that there is an arguable case that the applicant was not a fast track applicant in the circumstances of the present case. In DBB16, the applicant arrived in Australian waters being Ashmore Reef and the applicant’s vessel in that case was boarded whilst at Ashmore Reef, the applicant was disembarked from his vessel on which he had left Bangladesh and embarked onto a vessel operated by the Australian Customs Border Protection Service for passage to Darwin. The argument in DBB16 turned on the contention in that case that the applicant had entered Australia by sea under the meaning of the definition in s 5AA(2) of the Act and in that regard reference is made to the definition of migration zone which relevantly included a port. The basis upon which it was alleged that the applicant was a fast track applicant within the meaning of s 5 of the Act, was that Ashmore Reef was a port and the subject of a valid declaration. It was that argument that was rejected. That argument, at an impressionistic level has no application to the applicant in the circumstances of the present case. 

3. I accept the first respondent’s submissions that it is clear that the applicant disembarked at Christmas Island on or about 17 September 2012 and that Christmas Island is an “excised offshore place” within the meaning of s 5AA(1)(a)(i) of the Act and that the applicant thereby met the definition of “unauthorised maritime arrival” in s 5AA(1)(a) and (2)(a) of the Act; Sadiqi v Commonwealth (No 2) (2009) 181 FCR 1 at [186]. The applicant was accordingly a fast track applicant within the definition in s 5(1) of the Act and accordingly, the delegate’s decision was a fast track reviewable decision within s 473BB of the Act. 

4. It follows that the Authority had jurisdiction to review the application under s 473CC(1) of the Act and that at an impressionistic level, proposed ground 1 fails to identify any sufficiently arguable case on the merits to warrant an extension of time being necessary in the interest of the administration of justice under s 477 of the Act. 

Proposed ground 4

1. In relation to proposed ground 4, Mr Karp of counsel took the Court to the subpoena referred to in the Authority’s reasons at paragraph 23 and drew attention to the content of the subpoena at page 208 of the Court Book. The content included reference to the applicant not presenting himself as required by previous subpoena requirements and lack of any acceptable reason for the absence with regards to an individual HAK complaint and a name has been inserted (Ministry of Defence and Logistics), Attorney of M. Then there is reference to the name M who is identified as accused defendant and that it is necessary the applicant present himself to the relevant branch of the subpoena. It says that if the applicant refuses, the officer may arrest the applicant.

2. Mr Karp contended that the reference to the Ministry of Defence was a material fact that should have been the subject of express reference and finding by the Authority whereby it should be inferred that there had been a failure to have a real and meaningful engagement with the subpoena information advanced by the applicant in support of his claims.  It is apparent from the Authority’s reasons that the Authority found that the applicant had failed to pay a subcontractor of the Ministry of Defence and had made adverse credibility findings in relation to the applicant.

1. The Authority is not required to refer to the whole of the evidence before it and I do not accept that the reference to the individual HAK with the words “complaint” following and then (Ministry of Defence and Logistics), with an attorney of M as accused (defendant) identifies material information in respect of which it was necessary for the Authority to make an express reference. It is apparent from the Authority’s reasons as summarised above that the Authority had regard to the subpoena and on the face of the Authority’s reasons in relation to the subpoena as well as the legal proceedings and the financial difficulties of the applicant. There is no sufficiently arguable basis to support a finding that the Authority failed to have a real and meaningful engagement with the information advanced by the applicant.

2. The proposed ground 4, at an impressionistic level, fails to identify a sufficiently arguable proposed ground on the merits to warrant an extension of time being necessary to the administration of justice under s 477 of the Act. Insofar as it is alleged that the Authority in relation to proposed ground 4 made a finding that the applicant was not beaten at the behest of the Iranian regime that was legally unreasonable, the Authority gave logical and rational reasons in support of the finding that it was the applicant that owed money to a subcontractor to the Department and the Authority referred to the applicant’s own evidence that the fight and beating had been with persons from the subcontractor. The Authority’s adverse finding, accordingly, cannot be said to lack an evident and intelligible justification. There is no sufficiently arguable argument that the Authority acted illogically, unreasonably or irrationally so as to warrant an extension of time as being necessary in the interest of the administration of justice under s 477 of the Act. 

3. Taking into account the extent of the delay and the unsatisfactory explanation for the delay, together with the lack of merits of proposed grounds 1 and 4, the Court is not satisfied that it is necessary in the interests of the administration of justice to extend time under s 477 of the Act. 

4. Accordingly the application for an extension of time under s 477 of the Act is dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 12 April 2019