EOC20 v Minister for Immigration and Anor - [2020] FCCA 2928

FEDERAL CIRCUIT COURT OF AUSTRALIA

EOC20 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2928

Catchwords:
MIGRATION – Immigration Assessment Authority – application for extension of time – application for a Safe Haven Enterprise visa – whether the Authority failed to have regard to relevant considerations – whether the Authority made unreasonable findings – whether the Authority – whether the Authority acted unreasonably or illogically – Court not satisfied that it is necessary and in the interest of the administration of justice to extend time under s.477 of the Migration Act 1958 (Cth) – further amended application for an extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 477

Applicant:

EOC20

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2416 of 2020

Judgment of:

Judge Street

Hearing date:

13 February 2020

Date of Last Submission:

13 February 2020

Delivered at:

Sydney

Delivered on:

13 February 2020

REPRESENTATION

Counsel for the Applicant:

Mr G Schipp

Solicitors for the Applicant:

Sydney West Legal and Migration

Counsel for the Respondents:

Mr N Swan

Solicitors for the Respondents:

Mills Oakley

ORDERS

The application for an extension of time under s.477 of the Migration Act 1958 (Cth) is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

DATE OF ORDER: 13 February 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2416 of 2020

EOC20

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application for an extension of time under s 477 of the Migration Act 1958 (Cth) (“the Act”) for the seeking of a Constitutional writ in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 6 December 2018 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a citizen of Iran and his claims were assessed against that country. The applicant was found to be of Azeri ethnicity and identified as being agnostic and not believing in religion.
The applicant arrived in Australia 17 April 2013 as an unauthorised maritime arrival. On 22 June 2017, the applicant lodged an application for a Safe Haven Enterprise visa.
On 10 July 2018, the Delegate found that the applicant did not meet the criteria regarding the grant of a Safe Haven Enterprise visa. On 24 July 2018, the Authority wrote to the applicant, explaining that his application for the Safe Haven Enterprise visa had been referred to the Authority for review. The letter provided an attached fact sheet and practice direction, giving the applicant the opportunity to put on new information and submissions. Such information was provided to the Authority.
The applicant claimed to fear harm in Iran because he had no religion and because he had deserted his military service after seven months. The applicant identified as a person being mentally unwell. The applicant further alleged that he had had issues with the paramilitary group the Basij and the police in the past, and had been caught by the police for having alcohol, for which he was sentenced to 80 lashes.
The applicant also alleged that he had received a summons requiring him to attend Court and that he did not attend and remained in hiding.
The applicant alleges that he left Iran on a fake passport and that, since his arrival in Australia, soldiers from the military went to his parents’ house to ask about him and his family has received notices from the Court for him because he deserted the military.
The applicant fears harm because he deserted the military, because he is apostate and renounced Islam because of his past issues with the Basij and the police, because of political unrest and a fear that he may be sent to Syria to fight Daesh, and because of a conviction relating to drugs in Australia.
The Authority, in its reasons, identified the background to the review application and had regard to the information given to it pursuant to s 473CB of the Act.
The Authority summarised the applicant’s claims. The Authority expressly referred to, taking into account in respect of the applicant’s protection visa interview, the difficulty with his circumstances in the giving of evidence.
The Authority was not satisfied that the applicant has done anything overtly or publicly to renounce Islam or to state his religious views whilst living in Iran.
The Tribunal summarised the applicant’s problems in relation to his military service and referred to the applicant’s claims that his father was a drug addict and violent. The Authority did not accept that any such past issues give rise to any claim of harm in the reasonably foreseeable future if the applicant was to return to Iran.
The Authority accepted that the applicant commenced his compulsory military service in 2009 and that the applicant did not complete his service because he deserted. The Authority referred to the applicant being the subject of a requirement by a judge to complete his military service as punishment for deserting.
The Authority accepted that the applicant deserted his duties with the military during a 2009 demonstration, that he left his gun at the police station and did not want to shoot people. The Authority accepted as plausible that, as a consequence of the applicant’s actions in deserting his duties and leaving his gun, he was arrested by the military police and assaulted in the course of questioning about why he deserted, including being punched and kicked, and that he was detained for three days before being brought before the court. The Authority accepted as plausible that the applicant’s young age and care at the time were considered by the court and that, accordingly, he was punished by being sent to a remote posting in Khuzestan to complete his military service.
The Authority referred to the applicant’s claims that after two months of serving in Khuzestan, he escaped from his military posting. The Authority accepted that, as a consequence of having served some part of his sentence prior to the Safe Haven Enterprise visa interview, and being in such a situation for some time, the applicant’s memory had been adversely affected. Having regard to the applicant’s evidence overall, the Authority accepted that the applicant fled again from his military service post and did not complete his military service. The Authority also accepted as plausible that the applicant was not coping mentally after his experiences in the 2009 demonstrations. The Authority was prepared to accept, having regard to consistent information given in the applicant’s Safe Haven Enterprise visa application, that the applicant served about seven months of his compulsory military service in Iran.
The Authority identified having reservations about whether the applicant was thereafter pursued by the military or other authorities, either for having evaded completing his military service or because of having left a gun behind at the particular location when he deserted.
The Authority referred to the applicant’s evidence about a summons. The Authority did not accept as plausible that the applicant would not have been dealt with by the authorities in relation to an issue concerning the gun when it was first brought before the military court in 2009. The Authority was not convinced by the applicant’s evidence that leaving a gun behind was considered a serious crime that had to be dealt with by a higher court. The Authority found the applicant’s claims of the matter being pursued against him for some time after he left the military court to be far-fetched and implausible.
The Authority referred to an untranslated document which was said to be a Court summons. The Authority referred to the translation of the document provided to the Delegate by the applicant and his representative in a post interview submission. The Authority referred to the submission and the Authority did not accept that the summons provided any evidence that the applicant had been charged with any other offences in Iran.
The Authority also considered it implausible that the applicant could have evaded being found by a military police or Iranian authorities if he was of any adverse interest to the authorities in relation to his military evasion or any criminal matters arising because he had left a gun behind in 2009. The Authority did accept as plausible that the applicant would not have been brought to the attention of the authorities when he was arrested, detained and punished for his alcohol offence in 2012, if he had a summons outstanding in 2011. The Authority did not accept that any summons was issued to the applicant on account of his military evasion or any related criminal matter. The Authority did not accept the summons as evidence of any other offence that the applicant has been charged within Iran or that there is any other legal proceeding pending against him.
The Authority referred to the applicant’s alleged issues with the Basij and the police and accepted the applicant had been detained and beaten by the Basij and the police on numerous occasions for breaching standards of Islamic conduct in public. The Authority also accepted, from country information, the applicant’s alleged punishment in relation to alcohol consumption.
The Authority referred to the applicant’s claims concerning the Basij and the police having a file on him as being speculative and did not accept that there is any such file on the applicant on account of his experiences with the Basij and the police in relation to claim of moral code issues.
The Authority referred to the consumption of alcohol incident and found it implausible, in relation to the applicant’s allegations, that he was released when such a serious offences as claimed by the applicant were being pursued against in the higher Courts and that he would have been able to avoid being arrested in relation to any outstanding matter at the time he was arrested and detained on account of his alcohol offence.
The Authority also did not accept as plausible that the applicant could have avoided being brought before the Courts on account of any outstanding summons and related criminal charges relating to his military evasion on payment of an alleged bribe. The Authority found that there was no credible evidence of pending criminal proceedings against the applicant, or that there were any authorities, either the military police or other law enforcement authorities, pursuing the applicant. The Authority was not satisfied that there was any real and ongoing interest that the authorities had in the applicant on account of his military evasion and any related criminal liability relating to the abandonment of his gun. The Authority was satisfied that the applicant was released as he was of no further interest to the authorities. The Authority did not accept that any bribe was paid to the police, or any authorities, for the applicant’s release following his corporal punishment.
The Authority referred to the applicant’s alleged post-departure enquiries and did not accept the applicant’s claims that after his arrival in Australia, soldiers from the military went to his parent’s house several times to ask about him. The Authority was not satisfied on the evidence that the applicant was being pursued by authorities for not having completed his required military service. The Authority reasoned that if the applicant was being pursued for his military evasion or any related crime, the Authority considered the applicant would not have been able to avoid being found during the two or so years that the applicant claimed to be in hiding, prior to his departure. The Authority also did not accept that the applicant was in hiding on account of his military evasion or any related criminal liability. The Authority was not satisfied on the evidence that the applicant was identified or considered as being of any further interest on account of his military evasion or any related criminal liability at the time of his alcohol consumption arrest or at any time thereafter before his departure from Iran.
The Authority accepted that the applicant left Iran on a fake passport.
The Authority did not accept the applicant’s claims as being plausible in respect of the significance of his conviction and punishment for a crime in Australia.
The Authority accepted that there is a real chance that the applicant will be required to complete his military service and possibly pay a fine. The Authority also accepted that it is possible that the applicant’s military service may be extended. The Authority was satisfied that the requirement to complete military service, even if extended, and to pay a fine, would not amount to serious harm to the applicant.
The Authority accepted that there is a real chance that the applicant may be arrested, prosecuted and punished, with a term of imprisonment, on account of his military evasion.
The Authority did not accept that any punishment the applicant may face if arrested in relation to military evasion, including any possible term of imprisonment, amounts to persecution in the relevant sense.
The Authority was not satisfied that the applicant has any political views, or that he is perceived by the Iranian authorities of having such views, such that he is likely to face a disproportionate punishment for his military evasion.
The Authority was not satisfied that the applicant faces a real chance of serious harm upon return to Iran because of his evasion of military service now or in the reasonably foreseeable future.
The Authority was not satisfied that the applicant faces a real chance of harm upon return to Iran because of his past behaviour, now or in the reasonably foreseeable future.
The Authority was satisfied on the evidence that the applicant does not face a real chance of any harm for his past alcohol consumption in Iran, or that he faces any consequences arising from his alcohol consumption and punishment in 2012.
The Authority referred to the applicant’s claim that he may be caught consuming alcohol and was satisfied that the enforcement of Iranian laws involves the enforcement of a law of general application that applies to all Iranians and is not discriminatory.
The Authority was not satisfied in relation to the political climate that this would elevate the applicant’s profile or give rise to any further harm.
The Authority was not satisfied that the applicant will publicly declare his abandonment of Islam because of lack of interest and commitment rather than a fear of persecution.
The Authority was not satisfied on the evidence that the applicant has an existing profile as a non-believer in Iran.
The Authority was not satisfied that there is a real chance that the applicant’s religious views will come to the adverse attention of the Iranian authorities upon his return.
The Authority found that the applicant does not have a well-founded fear of persecution in Iran on the basis of religion.
The Authority was not satisfied that the applicant will be subject to harm on return to Iran as a person who has committed a crime in Australia.
The Authority found that the applicant did not face a real chance of harm on return to Iran for reasons of having committed a crime outside Iran.
The Authority referred to the applicant’s ethnicity. The Authority was not satisfied that the applicant would face official or societal discrimination as an Azeri that would amount upon to any harm upon return to Iran.
The Authority found that there is not a real chance that the applicant will suffer harm on the basis on his Azeri ethnicity.
The Authority accepted that the applicant’s return to Iran would have to be voluntary, and that he has spent substantial time in a Western country.
The Authority was satisfied that the applicant has not engaged in any anti-Iranian government political activism or any activities that would come to the adverse attention of the Iranian authorities since arriving in Australia and that there is nothing to indicate that he has attracted any adverse attention whilst in Iran on account of any regime or other political activities. The Authority was not satisfied, taking into account country information that the applicant faces a real chance of harm as a returning asylum seeker.
The Authority was not satisfied that the applicant faces a real chance of harm on account of his illegal departure.
The Authority was not satisfied that the applicant faces a real chance of harm on the basis of being a failed asylum seeker returning from a western country without a passport, who exited illegally either now or in the reasonably foreseeable future.
The Authority expressly referred to the applicant’s mental health and found that the applicant will not be denied access to services of he returns to Iran.
The Authority, considering the applicant’s claims as a whole, was not satisfied that the applicant had a well-founded fear of persecution in the meaning of s.5J of the Act. The Authority found that the applicant did not meet the requirements of the definition of ‘refugee’ in s.5H(1) of the Act. The Authority also found that the applicant did not meet the criteria in s.36(2)(a) of the Act.
The Authority found that there were not substantial grounds to believe that, as a necessary and foreseeable consequence of the applicant being returned to Iran from Australia, there is a real risk that the applicant will suffer significant harm. The Authority found that the applicant did not meet the criteria in s.36(2)(aa) of the Act.
The Authority’s decision was sent to the Bathurst Correction Centre on 6 December 2018, at which it appears the applicant remained incarcerated until 4 October 2019, as a result of having to serve a sentence in April 2016. The applicant acknowledged that he received the notification letter and the decision on 20 December 2018. The applicant referred to not reading English and that he had a friend tell him what the letter said and asserted that the whole of the letter was not read to the applicant.
The applicant put on evidence from a psychologist in relation to being currently diagnosed as having symptoms of depression and anxiety and post-traumatic stress disorder as a result of a psychological assessment made on 7 December 2019. Further similar assessment was provided to the Court in relation to the applicant’s mental state.

Before the Court

Mr Schipp of counsel on behalf of the applicant advanced that the applicant has a satisfactory explanation for the delay and a reasonably arguable case of relevant error to make necessary an extension of time under s 477 of the Act in respect of the delay and the circumstances of the present case, which is approximately a year. The Court was informed the delay was in fact 292 days.
The psychologist’s report does not explain why the applicant would have been unable to comprehend and act upon the information provided on 20 December 2018. The applicant does not contend more than that he was in prison and it was not until he was released that he was able to get proper legal assistance, in the context of providing a proper explanation as to why he did not take any steps in response to the letter to bring the proceedings within the 35-day time period. The explanation as to not reading English and the reference to the limited ability is not a satisfactory explanation, nor is the incarceration of the applicant or the applicant’s mental state.
The Court is, however, of the view that the combination of all those matters in the circumstance of the present case is one in respect of which the Court would not regard the delay alone as a basis upon which the application for the extension of time should be refused. The Court regards the merits of the proposed application, at the impressionistic level, as being of the greatest significance in this case.

The applicant relevantly complied within the requirements of s.477(2)(a) of the Act in the application that was filed in this Court.

The grounds

The proposed grounds in the further amended application are as follows:
1.The Authority failed to have regard to the Applicant’s mental health in:
(a) Considering his vulnerabilities in accordance with AGA16, against the background of his possible detention or return to military service.
(b) Considering his ability to accurately present his case,
(c) Considering whether to make negative credibility findings against him.
2.The Authority failed to consider an integer of the applicant’s claims, or unreasonably found that he had not claimed it, or that it did not arise on the materials, that he was a conscientious objector or otherwise objected to military service on political, religious or moral grounds, did not consider the nature of the military service required of the Applicant, or otherwise applied the wrong legal test.
3.The Authority failed to consider the cumulative risk of persecution and harm in respect of each charge that he would face; desertion, as well as use of a fraudulent passport, and illegal departure, in conjunction with being an agnostic, a person who had previously come to the attention of the Basij, a person who had committed an offence in Australia, and a person of Azeri nationality, when the combination of those things may give rise to a profile attracting persecution.
4.The Authority applied the wrong test in relation to the risk of significant harm, through failure to consider inferred intent to cause significant harm by the Iranian authorities through tolerance of detention conditions that are so severe as to cause significant harm, and complete impunity of officials who torture or degrade prisoners.
5.The Authority acted unreasonably, or illogically, or failed to give active intellection consideration to the question as to whether, from time to time, the Iranian authorities were seeking him for his military desertion or activities.
Mr Schipp of counsel confirmed that proposed ground 4 was abandoned and not pressed.

Ground 2

Mr Schipp took the Court first to proposed ground 2 and the Authority’s reasons at para 29 in support of the submission that there was an integer of the applicant’s claims that the Authority failed to consider in respect of his reasons for evading military service and/or that the reference by the Authority to the applicant not claiming that he was a conscientious objector was unreasonable by reason of being illogical or irrational given the applicant’s reasons for evading military service. It is clear from para 29 of the Authority’s reasons that the Authority identified that the applicant did not claim to be a conscientious objector. That was a finding clearly open to the Authority in the context of what the applicant claimed.
Mr Schipp contended that the applicant identifying his concerns about the incident of a shooting, which the Court was also taken to the applicant’s statement at page 102, reflected a person who is a conscientious objector. That is clearly an invitation to the Court to engage in a merits review. The Authority’s finding that the applicant did not express any political reason for not completing his military service and that the applicant was not a conscientious objector were findings open to the Authority that were logical, rational and reasonable. The Authority’s reference to the applicant’s reasons for evading that service clearly identify the taking into account of the applicant’s evidence.
There is no apparent integer of the applicant’s claims in relation to ground 2 that was not taken into account. The Authority’s reasons in respect to the reference to conscientious objector cannot be said to lack an evident and intelligible justification. As identified in the Authority’s reasons, the Authority, correctly identified the relevant law and on the face of the Authority’s reasons applied the relevant law.
At an impressionistic level, no arguable case or relevant jurisdictional error is identified by ground 2.

Ground 1

In relation to ground 1, Mr Schipp took the Court to the Authority’s reasons, in particular, at para 59, in relation to the applicant having symptoms of anxiety, depression and post-traumatic stress disorder, and alleged that the Authority had failed to have regard to those conditions in the context of his vulnerabilities at the time of detention, in relation to his ability to present his case and in the context of the adverse findings.
It is apparent on the face of para 59 of the Authority’s reasons that the Authority plainly had regard to the applicant’s mental state and made findings as to the applicant’s ability to access service and made findings that there is not a real chance of harm to the applicant by reference to his mental health. Further, the Authority did not accept that the applicant’s mental health would amount or lead to serious harm for all of the reasons in s.5J(1)(a) of the Act. At an impressionistic level, that was clearly a reference to the consideration of the issues concerning potential detention and the failure to complete his military service being taken into account by the Authority.
Mr Schipp also referred to the Authority in para 14 of its reasons. There was no adverse credibility finding to which the Court was taken in respect of which it was said that the alleged vulnerability or condition of the applicant impacted on the reasoning of the Authority in its adverse findings. At an impressionistic level, no arguable case or relevant error is made out by ground 1.

Ground 3

In relation to ground 3, Mr Schipp acknowledged the difficulty he faced by reason of the language of para 61 in the Authority’s reasons, referring to considering the applicant’s claims as a whole. Mr Schipp correctly identified that that, of itself, is not conclusive. The Authority’s reasons reflect a careful analysis of the applicant’s claims and evidence and the reference in para 61 of the Authority’s reasons is entirely consistent with the Authority having taken into account the cumulative consideration in respect of the applicants risks.
No arguable case of relevant error at an impressionistic level is identified by proposed ground 3.

Ground 5

In relation to proposed ground 5, Mr Schipp took the Court to the Authority’s reasons in paras 26 and 28 and alleged that the findings of the Authority were contrary to the country information identified, and identified illogicality and unreasonableness, or a failure to give active intellectual engagement to the applicant’s evidence and claims. The Court does not accept that there is any apparent inconsistency, illogicality or unreasonableness in respect of the Authority’s findings concerning military service referred to in paras 26 and 28.
Although skilfully advanced, Mr Schipp’s submissions were, in substance, an invitation to this Court to engage in merits review. This is not a case where there was not an active intellectual engagement or proper consideration given to the country information and the applicant’s claims in evidence in respect of his failure to complete his military service.
No arguable case of jurisdictional error arises at an impression level by reason of ground 5.
In the circumstances of the present case, and having taken into account the applicant’s explanation for the delay which the Court does not of itself regard as satisfactory, the Court is not satisfied that the applicant has a sufficiently arguable case on the merits to make necessary in the interest of the administration of justice an extension of time under s.477 of the Act.
The Court has assessed that proposed grounds at an impressionistic level. The Court finds that none of the proposed grounds identify a reasonable argument of jurisdictional error.
Accordingly, the Court is not satisfied that it is necessary and in the interest of the administration of justice to extend time under s.477 of the Act.
Accordingly, the further amended application for an extension of time is dismissed.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the transcript of the published oral reasons for judgement of Judge Street delivered in open Court on 13 February 2020 and the parties were provided sealed copies of the Court’s orders

Associate:

Date: 23 April 2020