Eoc20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 297
•26 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
EOC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 297
File number(s): SYG 2416 of 2020 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 26 November 2021 Catchwords: MIGRATION – application for extension of time under s 477(2) of the Migration Act 1958 (Cth) (Act) in relation to decision of Immigration Assessment Authority (Authority) affirming decision not to grant Safe Haven Enterprise visa – order made – whether the facts the Authority found or accepted were such as to have reasonably alerted the Authority to whether there was a question that on those facts the applicant has a well-founded fear of persecution – on the facts the Authority accepted or found it ought reasonably to have been so alerted and considered such questions and its failure to do so constituted jurisdictional error. Legislation: Judiciary Act 1903 (Cth) s 39B(1)
Migration Act 1958 (Cth) ss 5H(1), 5J, 36(2)(aa), 476, 477(1), 477(2)
Cases cited: ALL16 v Minister for Immigration and Border Protection [2018] FCA 419
Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387
BYN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 63
ELA18 v Minister for Home Affairs [2019] FCA 1482
EOC20 v Judges of the Federal Circuit Court of Australia [2021] FCA 758
Erduran v Minister for Immigration & Multicultural Affairs [2002] FCA 814
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284
Tuberi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1029
WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736
Division: General Number of paragraphs: 58 Date of hearing: 12 October 2021 Place: Sydney Counsel for the Applicant: Mr G Schipp, by video Solicitor for the Applicant: Sydney West Legal and Migration Counsel for the First Respondent: Mr N Swan, by video Solicitor for the First Respondent: Mills Oakley ORDERS
SYG 2416 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EOC20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
26 NOVEMBER 2021
THE COURT ORDERS THAT:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth) (Act) the 35 day period prescribed by s 477(1) of the Act for making an application for relief under s 476 of the Act in relation to the decision of the second respondent (Authority) made on 6 December 2018 is extended up to 30 October 2019.
2.The decision of the Authority made on 6 December 2018 affirming the decision of a delegate of the first respondent made on 10 July 2018 not to grant the applicant a Safe Haven Enterprise visa (delegate’s decision) is set aside.
3.The Authority review the delegate’s decision according to law.
4.The first respondent pay the applicant’s costs as agreed or as taxed.
THE COURT NOTES THAT:
5.These are orders of the Federal Circuit and Family Court of Australia (Division 2).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
By an application filed on 30 October 2019 the applicant, a national of Iran, applies for an order under s 477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s 477(1) of the Act for making an application to this Court for remedies under s 476 of the Act in relation to a decision made by the second respondent (Authority) on 6 December 2018. By that decision the Authority affirmed a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise visa (SHEV).
Before the application was due to be heard, the parties emailed to the Court proposed consent orders that included an order under s 477(2) of the Act extending the time to 30 October 2019 by which the application could be filed.[1] At the hearing before me a question arose about whether the Minister had resiled from the position reflected in his having consented to an order under s 477(2) of the Act and, if so, whether the Minister could resile from that position. I decided to proceed on the basis that there was before me an application under s 477(2) of the Act; I would hear both that application and the merits of the substantive application, assuming an order under s 477(2) of the Act were made; and to the extent any question relating to the explanation the applicant gives about the delay will potentially be a factor against my making an order under s 477(2) of the Act, I would give the applicant an opportunity to file any additional evidence or make additional submissions, or both. For reasons that will become apparent later, it will not be necessary to invite the applicant to file additional evidence, or to make further submissions, in relation to whether an order under s 477(2) of the Act should be made.
[1] For reasons it is not necessary to set out in these reasons the Court issued a “Notice of Filing and Hearing” which records the application “was lodged electronically in the” Court “on 23/10/2020 4:53:00 PM AEDT and has been accepted for filing under the Court’s Rules”. The electronic court file nevertheless records the application was filed on 30 October 2019.
CLAIMS FOR PROTECTION
Although the applicant stated his claims for protection on a number of occasions, it would be convenient to set out the claims the applicant made in a statement made in August 2017; and these are as follows:[2]
[2] CB101-107
(a)The applicant began his military service some time in 2009. After two months of training the applicant was posted to Tehran.
(b)Soon after he was posted, demonstrations started against “Ahmadinejad’s re-election”. The military police, of which the applicant formed a part of, often worked at those demonstrations trying to prevent things from getting out of hand. Some of the police beat people with batons, but the applicant “tried to stay towards the back” and did not hurt people.
(c)A few months after the applicant began working a particularly large demonstration took place. The applicant was on duty. The crowd was throwing things at the police. Many people in the crowd were wearing green masks or green bands because “it was called the Green Movement”. Police were beating people with batons and using shields to protect themselves. Then “we got an order via our two-way radios to shoot people”.
(d)The applicant saw many people killed that day. The applicant saw a girl get shot and killed in front of him; the applicant saw someone else thrown from a building; and the applicant saw another woman killed. The woman “became famous” because she had been filmed being shot and dying and the footage “was seen around the world”. The applicant also saw the police pulling people by their hair and beating them. The applicant found this horrifying, and did not want to be involved, and he refused to kill people. The applicant withdrew to the demountable police building, took off his riot gear, left his weapon, went to his motorcycle which was parked a couple of blocks away, and he rode to his parents’ house.
(e)The applicant’s father disapproved of the applicant’s actions, and, the next morning, he called the military police, informing them the applicant had escaped, and was at home. The applicant left, and moved around Tehran in an attempt to hide from the military. After about one month the applicant started sleeping at home again because he thought he was safe. One night, however, the military came and took the applicant.
(f)The applicant was detained for three nights, during which time the applicant was punched and kicked, and was asked why he left. The applicant said he left because he was scared. The applicant was taken before a judge; the applicant told the judge he had left because he was young and scared, and he did not want to kill people. The judge did not send the applicant to jail; “they” instead sent the applicant to a remote post in Khuzestan province.
(g)While the applicant was in Khuzestan the applicant was mentally unwell. The applicant kept reliving all he had seen during the demonstration. The applicant kept reliving the deaths and “saw all the screaming”. The applicant could not cope with still being in service.
(h)After a couple of months in Khuzestan, the applicant decided to run away after he obtained a few hours leave to go to the city. The applicant returned to Tehran to his parents’ house. He had an argument with his father, and his father reported the applicant to the military police. The applicant fled to his aunt’s house in Tehran, and from her the applicant got the inheritance money from his mother who had died when the applicant was three years old.
(i)The applicant went to his grandfather’s house, and then moved around a lot. Most of the time the applicant stayed outside of Tehran; and he never remained in any one place for more than a couple of months. The applicant lived off his mother’s inheritance money. The applicant sometimes stayed with friends; at other times he rented short-term; and sometimes the applicant lived on the streets. The applicant lived like this for a few years.
(j)While living in this manner the applicant had “many issues with the Basij and the police”. The Basij beat the applicant many times for a range of issues, such as playing music in his car loudly, walking with his girlfriend, and having alcohol. In 2012 the police caught the applicant with his girlfriend. The police took the applicant to the police station because they smelt alcohol on his breath. The applicant was then taken to court, and was given 80 lashes for having drunk alcohol. The applicant, however, was released because his father “paid them a bribe”. The applicant does not know why his father did this. The applicant organised to flee Iran because he was very scared.
(k)After the applicant arrived in Australia, soldiers from the military went to the applicant’s parents’ house several times to ask about the applicant. The applicant’s stepmother told the military the applicant is in Australia. The applicant’s family also received a notice to the applicant to attend court because he deserted the military.
(l)The applicant fears he will face serious harm if he returns to Iran because he deserted the military, and he has a pending court case about that; the applicant is an apostate; and the applicant has many issues with the Basij and the police and, for that reason, the Basij and the police probably have a file on the applicant.
COURSE OF APPLICATION BEFORE DELEGATE
The applicant, who was represented by a migration agent, was interviewed by the delegate on 12 February 2018.[3] By letter dated 26 February 2018 to the delegate (Agent’s Submissions), the applicant’s agent made “the following submission which outlines our client’s claims for protection and demonstrates, with reference to [the applicant’s] evidence, independent information and relevant law, that our client is a person in respect of whom Australia has protection obligations”. The Agent’s Submissions stated the applicant feared persecution because of the following:
(a)Religion. The applicant claimed he would be persecuted because he has renounced Islam and, for that reason, the Iranian authorities will consider him to be an apostate.
(b)Actual and imputed political opinion. The Iranian authorities will impute the applicant with a political opinion that is opposed to the Iranian regime because of the applicant’s western values, beliefs, and appearance.
(c)Membership of a particular social group. The applicant feared persecution because, if forced to return to Iran, he would form part of a social group of failed asylum seekers who sought asylum in a non-Muslim country; a social group of Iranians who had exited Iran illegally; a social group comprised of deserters of the military; and a social group of men who breach their religious and cultural norms.
[3] CB125
The Agent’s Submissions expanded on these claims. In relation to the applicant’s claim based on military desertion, the Agent’s Submissions stated:
We submit that there is a real chance that [the applicant] will face significant harm if returned to Iran because he deserted the military. While it is the prerogative of the state to punish draft evasion and desertion, we note that the UK Home Office report on military service provides that punishment will constitute persecution where such punishment is disproportionately harsh or severe. We submit that the lawful punishment can be disproportionately harsh or severe because it can involve a prison sentence and torture is widely used in Iranian prisons.
AUTHORITY’S REASONS
The Authority accepted the following:
(a)the applicant commenced his compulsory military service in Iran in 2009 when he was about 18 years of age;[4]
(b)the applicant deserted his duties with the military police during the 2009 demonstration, and that he left his gun at the police station because he did not want to shoot people;[5]
(c)as a consequence of the applicant’s desertion and leaving his gun, the applicant was arrested by the military police; he was assaulted in the course of being questioned about why he had deserted, including being punched and kicked, the applicant was detained for three days, and the applicant appeared before a court which decided to punish the applicant by ordering he be sent to Khuzestan to complete his military service there;[6]
(d)the applicant fled his military post in Khuzestan and, therefore, the applicant did not complete his military service; and the applicant was not at that time coping mentally after his experiences at the demonstrations;[7]
(e)the applicant was detained and beaten by the Basij and the police on numerous occasions for breaching standards of Islamic conduct in public, and that he had received injuries during these beatings, including a scar;[8]
(f)the applicant received 80 lashes as a punishment for being caught for alcohol consumption, but he was released after he received his punishment;[9]
(g)the applicant has not claimed he would publicly declare he has abandoned Islam if he returns to Iran, or that he has any desire to do so;[10]
(h)the applicant was convicted of an offence involving the importation of a marketable quantity of a border controlled drug;[11]
(i)the applicant may suffer mental health issues if he returns to Iran, the bases of that finding being the evidence the delegate noted that the applicant had been assessed by a psychologist as displaying symptoms consistent with anxiety, depression, and Post Traumatic Stress Disorder, a post interview submission which referred to the applicant’s symptoms being mitigating circumstances in relation to the crime for which he was convicted, and the applicant’s evidence that he suffered stress and related issues while in prison;[12] and
(j)the applicant departed Iran on a fake passport.[13]
[4] CB221, [11]
[5] CB222, [13]
[6] CB222, [13]
[7] CB223, [14]
[8] CB225, [18]
[9] CB225, [18]
[10] CB232, [40]
[11] CB227, [23]
[12] CB236, [59]
[13] CB227, [21]
The Authority:
(a)did not accept the applicant was pursued by the military or by any authorities because he evaded completing his military service, or because he had left his gun behind;[14]
(b)did not accept that any summons was issued to the applicant on account of his military evasion or any related criminal matter because he had left his gun behind, or in relation to his being charged for any other offences;[15]
(c)did not accept there is a file on the applicant on account of his experiences with the Basij and the police in relation to any of the claimed moral code issues;[16]
(d)did not accept there was any real and ongoing interest the authorities had in the applicant on account of his military evasion and any criminality arising from his abandonment of his gun;[17]
(e)did not accept any bribe was paid to police or to authorities for the applicant’s release after he received his 80 lash punishment;[18]
(f)was satisfied the applicant was released because he was of no further interest to the authorities;[19]
(g)did not accept that, after the applicant arrived in Australia, soldiers from the military went to his parents’ house several times to ask about him.[20]
[14] CB223, [15]
[15] CB224, [17]
[16] CB225, [18]
[17] CB226, [19]
[18] CB226, [19]
[19] CB226, [19]
[20] CB226, [20]
In light of these findings the Authority was not satisfied the applicant faces a real chance of harm because of:
(a)the applicant’s past behaviour of walking with his girlfriend and playing music loudly;[21] or
(a)the applicant’s past alcohol consumption in Iran, or because of his alcohol consumption and punishment in 2012;[22]
(b)the applicant’s religious views;[23]
(c)the applicant’s having been convicted of a criminal offence in Australia;[24]
(d)the applicant’s Azeri ethnicity;[25] and
(e)the applicant’s being a failed asylum seeker returning from a western country without a passport who had exited Iran illegally.[26]
[21] CB230, [32]
[22] CB231, [35]
[23] CB232, [42]
[24] CB232, [46]
[25] CB234, [51]
[26] CB236, [58]
There are two aspects of the Authority’s reasons that are relevant to the grounds of application. The first relates to the Authority’s treatment of the applicant’s claims based on his not completing his military service; and the Authority’s findings and reasons are as follows:
(a)The Authority accepted there is a real chance the applicant will be required to complete his military service and possibly pay a fine; and it is possible the applicant’s military service may be extended. The requirement to complete military service, however, even if extended, and even if the applicant will be required to pay a fine, would not amount to serious harm.[27]
(b)There is a real chance the applicant may be arrested, prosecuted, and punished with a term of imprisonment on account of his military evasion.[28]
(c)The applicant did not express any political reasons for not completing his military service; and the applicant did not claim he is a “conscientious objector”.[29]
(d)The applicant’s reasons for evading military service are related to his personal experiences of having witnessed the shooting of innocent people during the green movement demonstrations while he was on duty as part of his military service and his refusal to engage in such activities. There is nothing to indicate the applicant had any political motivations in doing so, or that the applicant was a political activist, or was engaged in any anti-regime activities; and the Authority did not accept that the applicant’s military evasion had any wider political significance to him, or would have been so perceived.[30]
(e)In those circumstances, the applicant’s being charged and punished for military evasion would not be for reasons of race, religion, nationality, membership of a particular social group, or because the applicant holds or would be perceived as holding political views, but rather it would be the application of a generally applicable law that applies to all Iranian men under 40 years of age.[31]
[27] CB229, [27]
[28] CB229, [28]
[29] CB229, [29]
[30] CB229, [29]
[31] CB229, [29]
The second aspect of the Authority’s reasons that is particularly relevant to the applicant’s grounds of application relates to the applicant’s evidence in relation to his mental health. The Authority dealt with this evidence under the heading “Mental health”, and its findings and reasons are as follows:[32]
(a)The Authority accepted the applicant may suffer mental health issues if he returns to Iran, and that to effectively manage his condition he would need to access mental health services.
(b)Mental health care services are integrated into Iran’s primary health care system and, while not without shortcomings, a significant proportion of Iran’s population is covered by accessible, affordable, and acceptable mental health care, with a range of mental health services available in both rural and urban areas in Iran.
(c)There is no reason why the applicant, as an Iranian citizen, would not be able to access mental health services to a level available to other Iranian citizens, and adequate to his specific needs if he returns to Iran.
[32] CB236, [59]
On the basis of these findings the Authority was not satisfied the applicant is a refugee within the meaning of s 5H(1) of the Act. The Authority was also not satisfied the applicant satisfied the complementary protection criteria provided for by s 36(2)(aa) of the Act.
SHOULD ORDER EXTENDING TIME BE MADE?
Principles
Under s 477(2) of the Act the Court may order the extension of the 35 day period prescribed by s 477(1) of the Act if two things are satisfied.[33] First, an application for such order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.
[33] I repeat her what I said in BYN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 63, at [16]-[20]
In SZRIQ v Federal Magistrates Court of Australia Foster J said:[34]
The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:
(a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;
(b) Whether there is any prejudice to the Minister;
(c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
[34] SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, at [47]
The Federal Court has held that, on an application under s 477(2) of the Act, the Court can consider no more than whether the applicant’s case has some merit. In the words of Mortimer J in MZABP v Minister for Immigration and Border Protection, a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[35] Further:[36]
If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
[35] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [63] (cases cited omitted)
[36] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [62] (cases cited omitted)
As her Honour noted in the same judgment, the words that have been used to describe the merits a claim for judicial review should have to justify the granting of an extension of time include “is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success””;[37] and, as her Honour also stated, that assessment is to be made on “a reasonably impressionistic level”.[38]
[37] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [63]
[38] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [62]
Also relevant is the “applicable test” Steward J identified in Tuberi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs:[39]
The applicable test for determining whether to grant an extension of time was not in doubt. The Court must consider the extent of the delay, any prejudice a respondent might suffer because of the delay, the explanation for the delay, and the merits of the proposed application: see Singh v. Minister for Immigration and Border Protection [2017] FCA 150 at [19] and SZTRY v. Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]. For the purposes of considering the issue of merit, the proposed grounds of review are examined at a reasonably impressionistic level: Guo v. Minister for Immigration and Border Protection [2018] FCAFC 34 at [27].
[39] Tuberi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1029, at [4]
Extent of and explanation for delay
The Authority made its decision on 6 December 2018, but the applicant did not file the application until 30 October 2019. The applicant has deposed to facts on which the applicant relies to explain his delay.
In his affidavit of 27 October 2019 the applicant says he was in prison when he received a copy of the Authority’s decision on 20 December 2018. The applicant says he did not have a lawyer, and he did not know how “to appeal”. In October 2019 the applicant was released from prison, and he was taken to an immigration detention centre. He there contacted a lawyer who had been referred to him.
The applicant provided further details in a telephone statement the applicant made on 13 February 2020.[40] The applicant there referred to events that occurred before the applicant became aware of the Authority’s decision. The applicant said he could not read the Authority’s decision because it was written in English; a person whom the applicant befriended in prison told the applicant that the applicant’s visa had been refused, but he did not read the Authority’s decision to the applicant; the applicant rang his previous agent who informed him that the applicant would have to pay the agent $8,000; the applicant then telephoned a lawyer who told the applicant the applicant would be able to obtain help from lawyers from immigration detention after he is released from prison; when the applicant came to the detention centre he asked people for the name of a lawyer in the course of which the applicant was given the name of his current legal representative.
[40] This is annexed to the affidavit of A S Conteh made on 13 February 2020
The Minister submits the applicant’s delay is significant; and the applicant’s inability to obtain a lawyer is not an adequate explanation for delay. The Minister submits the applicant’s circumstances, as disclosed by his evidence, are no different from “most litigants in this area of the Court’s practice” who, despite not having legal representation, being impecunious, and unfamiliar with the Australian legal system, often are able to commence proceedings within the 35 day period.[41]
[41] First Respondent’s Outline of Submissions, at [14] referring to WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736, at [37]
I accept that an inability to obtain legal advice is not by itself an adequate explanation for delay. Nevertheless that factor must be seen in the circumstances of the particular case. The applicant was in prison at the time he became aware of his rights; he made enquiries about obtaining legal assistance; and the inference is available to be drawn that the applicant was not prepared to commence a proceeding in this Court without the benefit of legal advice. In these circumstances, the length of the applicant’s delay, and the explanation for the delay are not matters that would weigh heavily against my exercising the discretion under s 477(2) of the Act.
Apparent merits
In the course of hearing argument on the merits of the grounds of application, I formed the clear impression that there was substance to the proposed grounds. That impression was strengthened and confirmed as I considered the merits of ground 1. At that point I concluded there was sufficient merit in at least ground 1 to conclude that there is sufficient merit in the application to justify the making of an order under s 477(2) of the Act.
Conclusion
I am satisfied it is necessary in the interests of the administration of justice that the time for making the application for remedies under s 476 of the Act in relation to the Authority’s decision be extended up to 30 October 2019.
GROUNDS OF APPLICATION
The applicant relies on three grounds of application.
Ground 1
Ground 1 is as follows:
The IAA made a jurisdictional error in that it:
1. Failed to determine an integer or give intellectual consideration to the Applicant’s claim that he was owed protection as a conscientious objector and deserter, by:
a. Misapprehending the nature of conscientious objection,
b. Adopting an overly narrow approach as to the political nature of conscientious objection,
c. Failing to consider whether the law of conscription was a law of general application that should have been recognised,
d. Failing to consider the nexus between the harm suffered and a convention reason,
e. Failing to consider whether the Applicant was the subject of persecution as a person required to participate in activities against proper human conduct,
f. Failing to consider appropriately or at all whether the Applicant was in a Particular Social Group,
g. Failing to consider whether there was a discriminatory or disproportionate application of a law of general application to the Applicant,
Parties’ submissions
The essential premise of ground 1 is the contention there was before the Authority a claim that the applicant was a “conscientious objector”. The applicant submits such a claim was before the Authority, even though the applicant did not use the expression “conscientious objector”, it being unnecessary for the applicant to use those words. The applicant relies on the reasons for judgment of Charlesworth J in EOC20 v Judges of the Federal Circuit Court of Australia (39B Judgment) on the basis of which her Honour, in the exercise of the Federal Court’s jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth) (Judiciary Act), set aside orders made by a Judge of this Court (FCC Judge) dismissing the applicant’s application for an order under s 477(2) of the Act, and remitting that application for reconsideration by a Judge of this Court.[42]
[42] EOC20 v Judges of the Federal Circuit Court of Australia [2021] FCA 758
The Minister submits the material before the Authority did not raise a claim based on the applicant’s being a “conscientious objector”, and ground 1 attempts to impugn the Authority’s decision on the basis of claims the applicant did not make. The Minister particularly relies on the applicant having had the benefit of a migration agent before the delegate, and the agent’s not articulating a claim that the applicant was a “conscientious objector”. The Minister submits ground 1, and the 39B Judgment, are based on the incorrect assumption that the applicant was not represented by an agent; and this incorrect assumption “fundamentally undermines the entire Ground”. The Minister further submits that where, as is the case before me, a person is represented, the Authority is entitled to act on the basis that the claims being made, and hence that which the Authority must consider, are those “expressly articulated by him . . . and his advisers and that any other arguabl[e] claims which are not expressly articulated are not pressed”.[43]
[43] First Respondent’s Outline of Submissions [18], quoting from ELA18 v Minister for Home Affairs [2019] FCA 1482, at [28], [32]
Issue arising
There is a degree of disengagement between, on the one hand, ground 1 and the applicant’s submissions in support of that ground, and, on the other, the Minister’s submissions in response. Much of the Minister’s submissions are directed to the question whether there was before the Authority a claim or a set of claims that could reasonably be characterised as a claim based on the applicant’s being a “conscientious objector”. The Minister’s response is not unreasonable, given that ground 1, in terms, contends there arose on the material before the Authority a claim that the applicant is a “conscientious objector”. Ground 1, however, does not simply contend there arose a claim that the applicant is a “conscientious objector”. Ground 1 identifies particular questions it claims arose on the material that was before the Authority, and which the applicant claims the Authority failed to address; and it is any one or more of those questions that ground 1 characterises as a claim the applicant was a “conscientious objector”. In other words, ground 1 uses the expression “conscientious objector” to denote questions the applicant contends arose on the material that was before the Authority, which the Authority ought to have considered, but which it failed to consider. The particular questions ground 1 denotes are those stated in paragraphs (a)-(g) of ground 1.
For reasons that will become clearer after I consider the 39B Judgment, it may be inferred that ground 1 has been framed in the manner it has because the Authority rejected the applicant’s claims in part by finding that the applicant did not claim he is a “conscientious objector”. Ground 1 in effect claims, among other things, that it was not reasonably open to the Authority to find that, given the evidence and facts it accepted, the applicant did not claim he is a “conscientious objector”. That necessarily implies the contention that the claims the applicant made were capable of being characterised as a claim he is a “conscientious objector”, and that such a claim was before the Authority. But that is not the main thrust of ground 1. Its main thrust is that the Authority did not consider, or at least properly consider, whether, given the evidence or facts the Authority accepted in relation to the applicant’s claim based on desertion of his military service, there was a nexus between the applicant’s claimed fear, and the reasons for fear of harm specified in s 5J(1)(a) of the Act (convention reasons), or whether the applicant otherwise is a “refugee” within the meaning of s 5H(1) of the Act.
The broad issue that arises on ground 1, therefore, is whether any one or more of the matters identified in paragraphs (a)-(g) of ground 1 are questions that reasonably arose on the material before the Authority and, if so, whether the Authority failed to consider them. Relevant to determining that issue is the 39B Judgment; and that is because it is apparent that ground 1 is based in part on findings contained in the 39B Judgment.
The 39B Judgment
In the proceeding before Charlesworth J the applicant claimed the FCC Judge made a number of jurisdictional errors. In his original application the applicant claimed the FCC Judge made a jurisdictional error to the extent he found that the applicant’s claim that he had deserted the military, was a conscientious objector, and was at risk of serious harm was not reasonably arguable.[44] By the time of the hearing, the applicant had formulated this ground as follows:[45]
The learned Judge of the Federal Circuit Court made a jurisdictional error in refusing the extension of time, by applying the an [sic] incorrect test for ‘conscientious objector’ in place of the test of whether the Authority had made a jurisdictional error in rejecting the applicant’s claims to have been subjected to serious harm for a convention reason in relation to being punished for deserting the military rather than carrying out or being complicit in the carrying out of illegal orders to shoot protesters, and to have a well founded fear of persecution in relation to any future punishment for his subsequent desertion, including any requirement to complete his military service.
[44] EOC20 v Judges of the Federal Circuit Court of Australia [2021] FCA 758, at [22]
[45] EOC20 v Judges of the Federal Circuit Court of Australia [2021] FCA 758, at [23]
Charlesworth J made the following findings in the course of addressing whether it was arguable the Authority made a jurisdictional error:
(a)The applicant made his reasons for deserting military service very plain. The applicant did not claim to object to the concept of compulsory military service entirely. Rather, he gave a detailed description of events occurring some two or three months after his military service began. It was those events that provided the impetus for his desertion. The factual events having been accepted, on any reasonable view, the applicant was a person who held an opinion that it was wrong to shoot innocent persons to suppress a political protest.[46]
(b)The Authority correctly identified the applicant had claimed he deserted military service because he had been “confronted with an order to kill innocent people” at a political protest and that he had refused to do so; the Authority also appears to have accepted the applicant’s father had reported him to the police because the father was a supporter of the police and the government; the Authority correctly identified the applicant feared harm at the hands of Iranian authorities relevantly because he had refused to complete military service, such feared harm including an extension of the period in which he must undergo military service as well as physical lashing. Having accepted these matters, the proper exercise of the Authority’s jurisdiction would have required the Authority “to assess whether those found facts brought the applicant within the statutory definition of a refugee”; and that would have required the Authority to consider “whether there existed the relevant nexus between the anticipated harm and a Convention reason”.[47]
(c)The Authority’s finding that the applicant did not make a claim to be a “conscientious objector” “amounted to a misstatement of the applicant’s factual claims”, those claims being that he objected to continuing serving because of his conscientious refusal to kill protesters at an anti-government protest. The Authority’s finding was a misstatement of the applicant’s claims because his “factual claims could not be reasonably interpreted in any other way”.[48]
(d)The Authority did not grapple with the consequence of its finding that the applicant refused to obey orders to kill those who demonstrated against the government, and to apply the statutory definition of a refugee to those critical facts.[49]
(e)The Authority did not ask itself whether the applicant has a well-founded fear of persecution for a convention reason having regard to the nature of the military service, including (as the Authority accepted it did) a requirement to obey an order to repress a political protest by shooting innocent people. The Authority conceived of “political” in overly narrow party-political terms, and so searched for an expression of opinion favouring one political leader or regime over another. That search yielded nothing of assistance to the applicant because the wrong question had been asked.[50]
(f)The Authority did not ask whether what it found to be a law of general application was appropriate and adapted to a legitimate end, as required by Applicant S.[51] It did not ask whether the requirement to obey the order to shoot protestors (as a compulsory incident of military service) was a requirement that should be recognised as a law at all. It therefore did not ask whether the punishment of a conscript who refused to obey such an order is capable of meeting the description of persecution by reason of political opinion for the purposes of the definition in s 5J of the Act.[52] It is clear that the Authority did not embark on this enquiry because of its finding, at a higher level of generality, that the applicant had not fixed the label “conscientious objector” to himself. But that finding was itself affected by an erroneous failure to assess the facts it had found concerning the reason for military desertion against the refugee definition. The Authority did not apply the principles to the factual claims that had been made and accepted.[53]
[46] EOC20 v Judges of the Federal Circuit Court of Australia [2021] FCA 758, at [41]
[47] EOC20 v Judges of the Federal Circuit Court of Australia [2021] FCA 758, at [42]
[48] EOC20 v Judges of the Federal Circuit Court of Australia [2021] FCA 758, at [43(1)]
[49] EOC20 v Judges of the Federal Circuit Court of Australia [2021] FCA 758, at [43(2)]
[50] EOC20 v Judges of the Federal Circuit Court of Australia [2021] FCA 758, at [43(3)]
[51] Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387
[52] EOC20 v Judges of the Federal Circuit Court of Australia [2021] FCA 758, at [43(4)]
[53] EOC20 v Judges of the Federal Circuit Court of Australia [2021] FCA 758, at [43(5)]
The Minister submits these findings are not binding on this Court. The Minister submits that, in applications for relief under s 39B(1) of the Judiciary Act in relation to decisions dismissing an application for an order under s 477(2) of the Act, it is not part of the Federal Court’s function to determine whether the proposed ground of review did or did not have reasonable prospects of success.[54] The Minister referred to the following passage from the judgment of Gleeson J in ALL16 v Minister for Immigration and Border Protection:[55]
In SZTUT v Minister for Immigration and Border Protection & Anor [2016] HCATrans 150, Gageler J considered whether the FCCA made a jurisdictional error in exercising its discretion to refuse to extend time pursuant to s 477(2), saying:
As my recent reasons for decision in AUK15 v Minister for Immigration and Border Protection [2016] HCATrans 36 illustrate, answering that question is a tightly confined exercise. That exercise turns on the limited question of whether Judge Nicholls misconceived the nature of the function he was performing in deciding whether or not to make the order for an extension of time.
… Whether or not the Federal Circuit Court should have found that the Tribunal had not assessed a claim or an integer of a claim by failing to properly assess the risk that was posed to the Tribunal is not a question that is appropriate for me to answer. Those are matters which fall squarely within the jurisdiction of the Federal Circuit Court conferred by section 477(2). …
For the same reasons, it is not appropriate for this Court to enter into an examination of whether, in its view, the proposed grounds of appeal did or did not have reasonable prospects of success. That question is squarely within the jurisdiction of the FCCA.
[54] First Respondent’s Outline of Submissions, [32]
[55] ALL16 v Minister for Immigration and Border Protection [2018] FCA 419, at [23], [24]
The applicant does not submit the findings Charlesworth J made in the 39B Judgment give rise to any issue estoppel; but it is not for me to consider whether it was open to her Honour to make the findings her Honour made. In those circumstances, I should address her Honour’s findings, given that the applicant relies on a number of them.
(a)The finding in paragraph 32(b) of these reasons implies the Authority did not consider whether, on the facts it found or accepted, there existed the relevant nexus between the anticipated harm and a convention reason. That is not an implication with which I would agree. The Authority considered those facts when determining whether the applicant was a “refugee”. Whether it did so without making any jurisdictional error, however, is a different question.
(b)As for the finding in paragraph 32(c) of these reasons the Authority accepted the applicant’s evidence why he deserted military service, correctly noting they were related to the applicant’s experiences of having witnessed the shooting of innocent people during the green movement demonstrations while he was on duty as part of his military service and his refusal to engage in such activities. The Authority, therefore, did not misstate or misunderstand the applicant’s factual claims.
(c)As for the finding in paragraph 32(d) of these reasons, as I have already noted, the Authority accepted the applicant’s evidence why he deserted military service, and it assessed the applicant’s claims on the basis of that evidence. Again, whether it did so without making any jurisdictional error is a different question.
(d)The finding in paragraph 32(e) of these reasons implies the Authority assessed the applicant’s claims based on a narrow conception of “political”. That implication would not be correct. The Authority accepted the applicant’s evidence of the reasons he deserted military service, and it assessed the applicant’s claims on the basis of that evidence. Further, the Authority appears to have assumed that the applicant’s reason for deserting the army could be characterised as political. The Authority found it did “not consider that the applicant’s military evasion had any wider political significance to him or would have been so perceived”.[56]
(e)The finding in paragraph 32(f) that the Authority “did not ask whether the requirement to obey the order to shoot protestors (as a compulsory incident of military service) was a requirement that should be recognised as a law at all” appears to imply that the Authority found or assumed that the generally applicable law included a law to the effect that it required a soldier to obey an order to shoot protestors. Such implication would not be correct. The laws of general application to which the Authority referred are the laws that apply to the consequences of evasion of military service.
[56] CB229, [29] (emphasis added)
I will now consider the claims made in paragraphs (a), (b), (c), and (d) of ground 1. For reasons that will become apparent later, it is unnecessary to consider the claims made in paragraphs (e), (f), and (g).
Claim (a) - misapprehending the nature of conscientious objection
The claim the Authority misapprehended the nature of “conscientious objection” seems to imply that “conscientious objector” is a technical expression, or otherwise an expression defined by the Act whose correct interpretation and application is determinative on whether a person is a “refugee” within the meaning of s 5H(1) of the Act. Such implication would be incorrect. Although the meaning the Authority attached to “conscientious objector”, and the use the Authority made of “conscientious objector” in assessing the applicant’s claim, could potentially be relevant to determining whether the Authority correctly understood and applied the definition of “refugee” given in s 5H(1) of the Act, and to whether the Authority otherwise properly considered the applicant’s claims by reference to such correct understanding, the question that must be addressed is whether the Authority correctly understood the applicant’s claims, and properly considered those claims on the basis of a correct understanding of s 5H(1) of the Act.
The applicant submits the Authority did not do this. The applicant submits the Authority “did not grapple with the consequence of its finding that the applicant refused to obey orders to kill those who demonstrated against the government and to apply the statutory definition of a refugee to those critical facts”;[57] and the Authority did not ask itself whether there was a well-founded fear of persecution for a convention reason having regard to the nature of the military service, including (as the Authority accepted it did) a requirement to obey an order to repress a political protest by shooting innocent people.[58]
[57] EOC20 - Submissions, at [24]
[58] EOC20 - Submissions, at [25]
I do not accept these submissions. By stating the applicant did not claim he was a “conscientious objector” the Authority did not misstate the applicant’s factual claims; nor did it misstate any characterisation the applicant or his agent gave to his claims based on the applicant’s desertion of the army. As I have already found, the Authority accepted the applicant’s evidence of the reasons he deserted the army, and it purported to assess the applicant’s claims on the basis of the evidence it accepted. The Authority did not purport to undertake that task by reference to whether the applicant was a “conscientious objector” or not.
Claim (b) - adopting an overly narrow approach as to the political nature of conscientious objection
The Authority did not assess the applicant’s claims by reference to any narrow concept of “politics”. On the contrary, the Authority proceeded on the basis that the reasons for which it accepted the applicant deserted the army could be characterised as political, and, to the extent those could be characterised as political, the Authority found they had no wider political significance to the applicant than the reasons for which he in fact deserted, and that those reasons would not be perceived as having any wider political significance.
Claim (c) - failing to consider whether the law of conscription was a law of general application that should have been recognised
This claim relies on the following passage from the judgment of Gray J in Erduran v Minister for Immigration & Multicultural Affairs (Erduran principle):[59]
It therefore appears that, when an issue of refusal to undergo compulsory military service arises, it is necessary to look further than the question whether the law relating to that military service is a law of general application. It is first necessary to make a finding of fact as to whether the refusal to undergo military service arises from a conscientious objection to such service. If it does, it may be the case that the conscientious objection arises from a political opinion or from a religious conviction. It may be that the conscientious objection is itself to be regarded as a form of political opinion. Even the absence of a political or religious basis for a conscientious objection to military service might not conclude the inquiry. The question would have to be asked whether conscientious objectors, or some particular class of them, could constitute a particular social group. If it be the case that a person will be punished for refusing to undergo compulsory military service by reason of conscientious objection stemming from political opinion or religious views, or that is itself political opinion, or that marks the person out as a member of a particular social group of conscientious objectors, it will not be difficult to find that the person is liable to be persecuted for a Convention reason. It is well-established that, even if a law is a law of general application, its impact on a person who possesses a Convention-related attribute can result in a real chance of persecution for a Convention reason. See Wang v Minister for Immigration & Multicultural Affairs [2000] FCA 1599 (2000) 105 FCR 548 at [65] per Merkel J. Forcing a conscientious objector to perform military service may itself amount to persecution for a Convention reason.
[59] Erduran v Minister for Immigration & Multicultural Affairs [2002] FCA 814, at [28]
The applicant submits the Authority did not consider whether the reasons it accepted the applicant deserted the army, namely, “his personal experiences of having witnessed the shooting of innocent people during the green movement demonstrations whilst he was on duty as part of his military service and his refusal to engage in such activities”,[60] could qualify as any one or more convention reasons and, if so, whether the real chance of the imposition of a punishment under a law the Authority found would apply to a person in the position of the applicant who deserted the army would constitute a real chance of serious harm because the applicant deserted the army for any such convention reason or reasons.[61]
[60] CB229, [29]
[61] EOC20 - Submissions, at [30], [31]
The Minister does not submit the Authority considered these questions. The Minister instead submits the Authority considered the claim before it, and that claim did not give rise to the questions the applicant submits the Authority ought to have asked. The Minister relies on the Authority’s observations that the applicant “did not express any political reasons for not completing his military service”, the applicant did not claim “he was a conscientious objector”, and “there is nothing to indicate that the Applicant had any political motivations in doing so, or that he was a political activist or was engaging in any anti-regime activities”.
The Minister’s submissions appear to be premised on the view that the Erduran principle applies only where an applicant expressly claims he or she is a conscientious objector. I do not accept that premise. The Erduran principle applies to claims that have at least two elements. The first is a claim that the applicant refused to undergo compulsory military service because he or she holds a particular belief or opinion. The second is a claim that the applicant fears serious harm, not because the applicant holds the belief or opinion that led him or her to refuse to undergo compulsory military service, but because the applicant refused to undergo compulsory military service. Where these elements are present, the decision-maker may need to consider at least two questions. The first is whether the belief or opinion that constituted the reason for which the applicant refused to undergo compulsory military service can properly be characterised as a convention reason. The second question is whether there is a real chance the applicant will suffer any serious harm as a consequence of the applicant’s having refused to undergo compulsory military service. If these two questions are answered in the affirmative, it would be open to the decision-maker to conclude that the applicant has a well-founded fear of serious harm because of he or she holds the opinion or belief that constituted the (convention) reason for the applicant’s refusing to undergo military service.
The Authority accepted the applicant deserted the army because of his personal experiences of having witnessed the shooting of innocent people during the green movement demonstrations while he was on duty as part of his military service and his refusal to engage in such activities. In addition, the Authority found that, because of laws of general application, the applicant will face a real chance of being “arrested, prosecuted and punished with a term of imprisonment on account of his military evasion”.[62] Having made those findings, the Authority was bound to consider their legal significance; that is, whether on those facts, the applicant met the definition of “refugee”. In light of the Erduran principle, the particular questions that arose on the facts the Authority accepted, and which the Authority, therefore, ought to have considered are whether the reason for which the applicant deserted the army constitute a convention reason and, if so, whether the applicant’s being arrested, prosecuted and punished with a term of imprisonment because of his desertion, would constitute significant harm such that it ought to be concluded that the applicant’s desertion from the army, for the reason he deserted the army, gave rise to a well-founded fear of persecution for a convention reason. The Authority did not address questions to that effect.
[62] CB229, [28]
It is true the applicant did not in terms state that the reason for which he deserted the army constituted one or more convention reasons, and that it was because of that reason that he will be exposed to a real chance of being arrested, prosecuted and punished with a term of imprisonment under laws that generally apply to soldiers who evade military duty, and for these reasons, the applicant had a well-founded fear because of his holding a particular political opinion, or because he was a member of a particular social group. That, however, did not excuse the Authority from considering such a claim if the facts it found or assumed were reasonably capable of being so characterised. The Authority, as a specialist administrative body, experienced as it is in assessing claims for refugee status, is expected to know the law in relation to what constitutes a “refugee”, including the Erduran principle, and, for that reason, is expected to be in a position to appreciate the legal significance or potential significance of facts it finds or accepts.
Had the Authority brought to mind the Erduran principle, the Authority ought reasonably to have appreciated that the facts it found or accepted give rise to the question whether the reason for which the applicant deserted the army could constitute a convention reason. Had the Authority done so, and answered that question in the affirmative, as it would reasonably have been open for it to do, the Authority would then have had to consider whether that which the Authority accepted there was a real chance would occur to the applicant, namely, his being arrested, prosecuted and punished with a term of imprisonment under laws governing desertion, would constitute “serious harm” within the meaning of s 5J(4) of the Act. The Authority did not undertake those tasks and, by failing to do so, denied the applicant a real prospect of a favourable outcome on the review.
The Authority’s failure to consider the questions the applicant correctly submits the Authority did not, but ought, to have considered did not arise from the manner in which the applicant presented his claims. Nor, however, did the Authority’s failure arise from any incorrect understanding of the notion of “conscientious objector” or “political”, or because the Authority misstated or mischaracterised the applicant’s claims. The Authority’s failure appears to have been due to nothing more than its not having appreciated the legal relevance or potential legal relevance it ought reasonably to have appreciated attached to facts it found or accepted.
The applicant has made out this part of ground 1; and by itself it is sufficient to support the conclusion that the Authority’s decision is affected by jurisdictional error, and should for that reason be set aside.
Claim (d) - failing to consider the nexus between the harm suffered and a convention reason
This claim covers the same ground as claim (c), and is made out for the same reasons I have found claim (c) is made out.
Claims (e), (f), and (g)
Given I have concluded claims (c) and (d) have been made out, I do not propose to consider claims (e), (f), and (g).
Conclusion on ground 1
The applicant succeeds on ground 1 of the application.
Ground 2
Ground 2 is as follows:
The IAA made a jurisdictional error in that it:
. . . .
(2)Failed to consider an integer, give intellectual consideration to or consider all the evidence in regard to the Applicant’s claim in respect to his mental health, in particular:
a. Failure to consider the Applicant’s special vulnerability given his possible return to prison.
b. Failure to consider the effect of the Applicant’s possible return to military service on his mental health.
c. Failure to consider the lack of mental health services in prison.
d. Erroneously considering his mental health claim as subject to a law of general application.
This ground in effect claims that although the Authority considered whether the applicant’s mental health issues gave rise to a real risk of serious or significant harm, the Authority did not do so by reference to its finding there is a real chance the applicant would be arrested, prosecuted, and imprisoned on his return to Iran.
There are two difficulties with this ground. First, it assumes that the country information on which the Authority relied in making its findings in relation to the accessibility of mental health services in Iran excludes persons detained in Iranian prisons. That assumption is not warranted. The country information on which the Authority relied is not in evidence and, for that reason, it is not possible to assess whether it also applied to the accessibility of health services by persons in Iranian prisons. Second, if the country information excluded the accessibility of mental health services by persons in prison, there would have been no material before the Authority on the basis of which the Authority could reasonably have made any assessment about the accessibility to mental health services by persons in Iranian prisons. Although the applicant through his agent made submissions that he had mental health issues, and the applicant faced a real chance of being imprisoned because he deserted the army, the applicant’s agent did not provide any information that suggested the applicant would be unable to access mental health services in prison.
Ground 2, therefore, fails.
Ground 3
Ground 3 is as follows:
The IAA made a jurisdictional error in that it:
. . . .
(3)Reasoned illogically or unreasonably in regard to the Summons and the pursuit of the Applicant by authorities.
In his written submissions, the applicant submits that ground 3 “may be considered as a subground of Ground 1 in that it relates to consideration by the Authority of the harm claimed arising from the applicant’s actions in refusing orders to shoot protesters and subsequently deserting from the army, on two occasions”. Given I have found the applicant has made out ground 1, I will not consider ground 3.
DISPOSITION
In addition to making an order under s 477(2) of the Act I will order that the Authority’s decision be set aside, and that the Authority review the delegate’s decision according to law. I will also order that the Minister pay the applicant’s costs of the proceeding as agreed or as taxed.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 26 November 2021
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