ETQ18 v Minister for Home Affairs

[2019] FCCA 1435

FEDERAL CIRCUIT COURT OF AUSTRALIA

ETQ18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1435

Catchwords:
MIGRATION – Application for safe haven enterprise visa – fears of harm unfounded – inconsistencies in claims – no jurisdictional error established - application dismissed.

Legislation:

Migration Act 1958 (Cth) ss.5H(1), 5J, 36(2), 473CB, 473DD

Cases cited:

CNN15 v Minister for Immigration and Border Protection [2017] FCA 579

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176
BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958
AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111

Applicant: ETQ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 955 of 2018

Judgment of: Judge Egan

Hearing date: 22 May 2019

Date of Last Submission: 22 May 2019

Delivered at: Brisbane

Delivered on: 22 May 2019

REPRESENTATION

Applicant: In person

Solicitor for the First Respondent: Ms K. Reid of Clayton Utz

ORDERS

1. That the application for review filed on 14 September 2018 be dismissed.

2. That the applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 955 of 2018

ETQ18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Iran who arrived in Australia on 7 June 2013.  He claims to be from Ahvaz, Khuzestan Province, in Iran.

2. The applicant asserted that he was owed protection obligations because of his ethnicity and status as a person who had lived outside of Iran for a substantial period of time. 

3. On 26 June 2018 the department refused the applicant’s application for a Safe Haven Enterprise Visa (SHEV) (subclass XE-790). The matter was referred to the Immigration Assessment Authority (‘the Authority’) for review pursuant to the provisions under part 7AA of the Migration Act 1958 (Cth) (‘the Act’).

4. On 26 June 2018 the Minister referred the delegate’s decision to the IAA.  On 22 August 2018 the IAA affirmed the department’s decision to refuse to grant the SHEV. 

5. On 14 September 2018 the applicant made application for review of the decision of the Authority.  On 7 November 2018 it was ordered that the applicant file and serve written submissions in support of the application for review by 4.00 pm 28 days prior to the hearing.  The applicant has not done so.

6. The grounds for the application for review were contained in paragraph 1 on page 3 of the initiating application and are as follows:

   ·   “(1) The Immigration Assessment Authority and the delegate of the Minister for Home Affairs erred in law in making his decision.”

7. The application for review is without the requisite particularity so as to enable the Court to properly adjudicate on the application.  In CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 at [20]-[22] inclusive Gilmour J said as follows:

   “[20] This ground is un-particularised as to just what evidence it is alleged was not considered by the Tribunal or what relevant considerations the appellant alleges the Tribunal did not take into account, or as to what “wrong information” the Tribunal is alleged to have based its decision upon. 

   [21] This first ground of appeal is merely an unparticularised assertion of jurisdictional error.  As was said in WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]:

   [35] (This ground is) an un-particularised assertion of jurisdictional error and is vague and meaningless.  It does not specify what the nature of what the jurisdictional error allegedly committed by the Court below is.  Failure to particularise a ground of review is a sufficient basis for it to be dismissed:  WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969.

   [22] The first ground, therefore, fails.”

8. The first respondent does not seem to take the point in relation to the lack of particularity, thereby requiring the Court to address other issues raised in the matter which arise on the material before the court. 

9. The applicant’s claims for protection are as set out in paragraph 10 of the reasons of the Authority as follows:

   ·   “The applicant is an Iranian citizen from Ahvaz, Khuzestan Province.

   ·   His ethnicity is Ahwazi Arab and he is identifiable by his name and accent.

   ·   Although the Ahvaz area is rich in gas and oil resources the Arabs in the area are living in poor and difficult conditions and do not receive the benefits from these resources. The area has significant air pollution and the applicant suffers from asthma as a result.

   ·   Ahwazi Arabs who advocated for greater rights were harmed by the authorities and the applicant knew two activists who were executed for protesting in support of minority rights. Because of his Ahwazi Arab ethnicity the applicant was too scared to speak out. The applicant provided country information about the situation in Ahvaz.

   ·   Arabs are discriminated against in Iran and treated as lessor persons and denied social and economic opportunity, such as promotion in employment. At his work the applicant was denied permanency and was employed as a contractor. Persians employees were paid more, attained permanent positions and were given promotions and opportunity to work extra hours. He was always concerned his employment could be terminated or that he would not earn sufficient money.

   ·   The applicant's workplace had appearance and prayer expectations and the applicant was criticised for his non-compliance with these. On occasions he was reported to the workplace morality police who detained him for brief periods within a designated area or sent him home and told him not to return to work until he was recalled. At his SHEV interview the applicant clarified that this detention comprised being questioned by security officers in their office. After a number of years with the company the applicant left in 2010 as he did not want to agree to their demands that he pray at the mosque and grow a beard.

   ·   Around 2010 the applicant was stopped at a checkpoint one evening when he was in his car in the company of his Persian girlfriend. The applicant and his girlfriend were detained for 48 hours. The applicant was questioned while held; the officers were threatening and one of them slapped him. The applicant believes he was detained because of his ethnicity and because relationships between Arabs and Persians are not accepted.

   ·   In May 2013 the applicant decided to leave Iran. En route to Australia the applicant's passport was taken by the people smuggler.

   ·   The applicant fears that because of his Arab ethnicity he will not be able to obtain permanent employment should he return to Iran and he is worried about his ability to subsist.

   ·   The applicant fears that because he has been outside Iran for an extended period and because of this and his ethnicity he will be viewed as a threat to the regime and detained and interrogated on arrival in Iran.

   ·   The applicant worries about his visa status and as a result has difficulty sleeping.”

10. By paragraph 3 of the reasons of the Authority, it was noted that the Authority had had regard to the material provided to it by the secretary pursuant to the provisions of section 473CB of the Act.

11. At paragraph 4 of the reasons of the Authority, it was noted that the Authority had obtained new information which was recorded as being specifically related to Iranians returning to Iran who had claimed asylum whilst overseas.  The information was obtained from the most recent Department of Foreign Affairs and Trade (DFAT) country report for Iran published on 7 June 2018. 

12. The delegate relied on the 21 April 2016 DFAT report for Iran which the 7 June 2018 report had updated. It was recorded that the Authority was satisfied that there were exceptional circumstances justifying consideration of that new information. Such new information was able to be received by the Authority having satisfied the preconditions in section 473DD of the Act. [1]

    [1]     Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; BVZ16 v Minister

13. In paragraph 5 of its reasons, it was recorded by the Authority that it had, on 25 July 2018, received an updated submission on behalf of the applicant.  The updated submission restated the applicant’s claims regarding the incident when he was detained with his girlfriend, his employment, and the chance of harm being inflicted upon him because of his Arab background should he return to Iran.

14. At paragraph 6 of its reasons, the Authority recorded that the updated submission was new information relating to a number of matters which the applicant had not previously raised with the delegate because of his assertion that he was anxious and fearful.  The submission also referred to country information relating to protest activity in Iran including protests by Arabs. 

15. At paragraph 9 of its reasons, the Authority recorded that the applicant had not disclosed any such information at an earlier time, including at the time of his SHEV interview.  The failure of the applicant to provide such information to the Minister before the delegate’s decision led the Authority to form the opinion that the applicant’s claims in that regard were not credible.  It was recorded that the applicant had failed to satisfy the Authority that it could not have been provided to the delegate before the delegate’s decision was made. 

16. In those circumstances, the Authority found that it was not satisfied that any exceptional circumstances existed that justified it considering the new information or the country information cited in the submission relating to protest activity in Iran.  No regard was therefore had to such new information.

17. At paragraphs 11 and 12 of its reasons, the Authority set out the relevant protection criteria as provided for in section 5H(1) and section 5J of the Act.

18. At [13]-[23] of its reasons, the Authority closely examined each of the claims made by the applicant in support of his assertion that he had a well-founded fear of persecution should he be returned to Iran.

19. It was noted by the Authority in [15] of its reasons, that in the applicant’s home province he attended secondary school and had been in regular employment in such province.  At [16] of its reasons, it was noted by the Authority that the applicant’s father and other family members had worked for long periods at government agencies.  It also noted that the applicant’s father was, according to the applicant, a respected employee.  It was also noted that despite difficult economic situations prevailing in Iran the applicant was able to work for one company for a number of years after which he was able to secure employment assisting his sister in her private beauty salon. 

20. At [17] of its reasons, the Authority accepted that discrimination against Ahwazi Arabs was widespread.  However, the Authority was not satisfied that the applicant would experience significant economic hardship, or that the discrimination the applicant had experienced (such as being criticised for not wearing a beard or not praying with his colleagues), amounted to something that would cause him to be in fear of suffering serious harm.  It was found that there was no threat to the applicant’s life or liberty, or that he had undergone physical harassment or ill treatment, significant economic hardship, denial of access to basic services such that his capacity to earn a livelihood was threatened, or otherwise that his capacity to subsist was threatened so as to constitute serious harm to him.  It was found that the applicant did not have a well-founded fear of serious harm on that basis. 

21. At [18] of its reasons, the Authority found that in the period of time that the applicant had resided in Australia (some five years) the applicant had not become politically active, nor that he had expressed any wish to do so despite the greater freedom in Australia allowing him to do so.  The Authority was not satisfied that the applicant had a well-founded fear of persecution in Iran on the basis of his political activity or political opinion. 

22. At [19] of its reasons, the Authority recorded the applicant’s claim that he had been detained when in the presence of his girlfriend in or around 2010.  Reference was made in that paragraph to the limits on men and women mixing socially in Iran.  The Authority accepted that the applicant had appeared before a morality court, also noting that the applicant had not been charged with any offences at the time of his doing so. The Authority accepted that that may have constituted a traumatic experience, and that the conduct of one of the officers of the morality police had been threatening, but based upon the 2016 DFAT report, country information recorded that unmarried couples appearing together in public was common, the Authority not being satisfied that there was anything other than a remote chance that the applicant would come to the adverse attention of the authorities, or that if he did come to the attention of the authorities, that he would be harmed as a result. 

23. At [20] of its reasons, the Authority did not consider that the applicant being taken to a police station and cautioned constituted serious harm. The Authority also found that any punishment that the applicant might face for being in public with his girlfriend or other non-related female would be non-discriminatory and, therefore, not constitute persecution for the purpose of the Act. Nor was it accepted that the authorities would have any ongoing interest in the applicant by reason of any such interest.

24. At [21] of its reasons, the Authority noted that the applicant no longer had his passport such that he would require travel documentation to be issued to him so as to enable him to return to Iran.  The Authority found that based on recent country information as contained in the 2018 DFAT report, Iranian authorities paid little attention to failed asylum seekers on their return to Iran.  The Authority did not accept that the applicant would be harmed as a result of his being returned to Iran, or that any questioning would amount to serious harm.  Nor was it satisfied that the 2010 incident would give rise to any adverse interest being shown toward the applicant. 

25. At [23] of its reasons, the Authority did not accept that there was any medical condition which gave rise to the possibility that the applicant would not receive appropriate medical treatment should he be returned to Iran. 

26. At [24] and [25] of its reasons, the Authority found that having considered all of the applicant’s claims it was not satisfied that there was a real chance of the applicant suffering persecution in the reasonably foreseeable future in Iran on the basis of his having lived in a western country for a considerable period of time, or as a result of his ethnicity, political opinion, his being detained for 48 hours in 2010, or because he was in the company of a non-relative female. 

27. The Authority found that the applicant did not meet the requirements of the definition of refugee in section 5H(1) of the Act, nor that the applicant met the section 36(2)(a) criteria.

28. As to a consideration of complementary protection criteria, the Authority found at [29] of its reasons that the applicant was not a person who would suffer significant harm if returned to Iran. The Authority found at [30] of its reasons that the applicant did not have a real risk of suffering significant harm should he be returned to Iran now or at any time in the foreseeable future. It found that the applicant did not meet the complementary protection criteria as set out in section 36(2)(aa) of the Act.

29. It cannot be said that the Authority failed to make an obvious inquiry about any critical fact raised as a result of the making by the applicant of his claims.  As was said in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25]-[27] inclusive per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ as follows:

    “[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

    [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

    [27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”

30. Further, it cannot be said that no other rational or logical decision-maker could not have made the same decision as the Authority.  As was said by Crennan and Bell JJ in the Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:

    “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.  The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error.  A court should be slow, although not unwilling, to interfere in an appropriate case.”

1. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

2. The applicant has failed to establish any jurisdictional error on the part of the Authority. 

3. The application is without merit and is dismissed. 

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 6 June 2019

    for Immigration and Border Protection [2017] FCA 958; AQU17 v Minister for Immigration and
    Border Protection [2018] FCAFC 111.