Ewj18 v Minister for Home Affairs

[2019] FCCA 2092

FEDERAL CIRCUIT COURT OF AUSTRALIA

EWJ18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 2092

Catchwords:

MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth).

Cases cited:

CLS15 v Federal Circuit Court of Australia [2017] FCA 577

Applicant:

EWJ18

First Respondent:

Minister For Home Affairs

Second Respondent:

Immigration Assessment Authority

File Number:

LNG 63 of 2018

Judgment of:

Judge Riethmuller

Hearing date:

20 March 2019

Date of Last Submission:

20 March 2019

Delivered at:

Hobart

Delivered on:

20 March 2019

REPRESENTATION

Counsel for the Applicant:

Mr Slipper

Solicitors for the Applicant:

Refugee Legal Service Tasmania

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

(1)     The application be dismissed.

(2)     The applicant pay the first respondent’s costs of these proceedings, fixed in the sum of $7467.00.

1. FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT Hobart

LNG 63 of 2018

EWj18

Applicant

And

Minister For Home Affairs

First Respondent

Immigration Assessment Authority

Second Respondent

REASONS FOR JUDGMENT

As corrected

(Delivered extempore)

1.      This is an application for judicial review of a decision of the Immigration Assessment Authority (‘the IAA’). 

2.      The applicant is a citizen of Iran.  He is of Farlee, Kurdish, Shia Muslim ethnicity and religion.  The applicant arrived in Australia in June 2013 as an unauthorised maritime arrival.  He was invited to apply for a protection visa in July 2016 and did so in December of that year.  The applicant was interviewed by a delegate in relation to his visa application and, at that time, was represented by a migration agent.  In November 2017 the delegate refused to grant the applicant a visa and his application was then referred to the IAA.

3.      The applicant sent additional information to the IAA, who then decided the application in August of 2018.  The decision by the IAA deals with the large number of different claims that the applicant had put forward, rejecting each one. 

4.      For the purposes of this application, there is only one part of the claim that is relevant, that is, what may come to pass if he were to return to Iran or, indeed, whether he could be forced to return to Iran. 

Grounds of Application

5.      The application for a judicial review is in the following terms:

1. The Second Respondent filed to consider an [integer] of the Applicant’s claim namely that of a member of the social group of involuntary returnee failed asylum seekers, in that:

i) The Second Respondent did not address specifically the claim as an involuntary returnee.

ii) The Second Respondent failed to make any finding concerning the claim of the Applicant as an involuntary returning failed asylum seeker.

6.      In this case, the applicant has maintained that he would not voluntarily return to Iran.  This was not perfectly clear from his application form, as appears on pp.64 and 67 of the Court book (‘CB’).  However, on the face of the decision, it seems to me to be clear that the applicant would not choose to return to Iran and, therefore, for him to return, it would need to be by way of an involuntary deportation.  The applicant maintains that is his position as at today, he would not voluntarily return to Iran. 

7.      The ground for judicial review complains that the decision-maker did not address the potential of the applicant being an involuntary returnee to Iran and the risks that might confront him if that were to come to pass.

8.      The difficulty facing the applicant is that the IAA made a specific finding (at [35]) of their decision that Iran currently does not accept involuntary deportees. The IAA relies upon a DFAT report from 2016.  The supplementary Court Book contains a DFAT report with respect to Iran from 2018 which contains some updated information with respect to involuntary returnees.  That report says:

5.23  Iran has historically refused to issue travel documents (laisser passers) to allow the involuntary return of its citizens from abroad.  On 19 March 2019, however, Iran and Australia signed a Memorandum of Understanding (MOU) on Consular Matters that includes an agreement by Iran to facilitate the return of Iranians who arrived after this date and who have no legal right to stay in Australia.

5.24  The International Organisation for Migration (IOM) runs a program to assist voluntary returnees to Iran, in cooperation with the country from which they are returning.  Iranian authorities cooperate with the IOM in this regard. In cases where an Iranian diplomatic mission has issued temporary travel documents, authorities will be forewarned of the person’s imminent return.  Authorities will usually question a voluntary returnee on return only if they have already come to official attention, such as by committing a crim in Iran before departing.  DFAT is not aware of any legislative or social barriers to voluntary returnees finding work or shelter in Iran, nor any specific barriers to prevent voluntary returnees from returning to their home region.

5.25  According to international observers, Iranian authorities pay little attention to failed asylum seekers on their return to Iran.  Iranians have left the country in large numbers since the 1979 revolution, an authorities accept that many will seek to live and work overseas for economic reasons.  International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside of Iran, including in relation to protection claims.  This includes posting social media comments critical of the of the government – heavy internet filtering means most Iranians will never see them – converting to Christianity, or engaging in LGBTI activities.  In such cases the risk profile for the individual will be the same as for any other person in Iran within that category.  Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activist.

9.      On the face of that report, the conclusion by the IAA, even if they did not have regard to the specific terms of the report, remains a correct finding; that is, that Iran does not accept involuntary deportees who arrived in Australia prior to March 2018.  This applicant arrived in Australia well before that date. As a result, on the material before the IAA and its specific findings, the applicant could not become an involuntary returnee to Iran because Iran does not accept involuntary returnees. 

10.    The applicant relied upon a decision of the Federal Court in CLS15 v Federal Circuit Court of Australia [2017] FCA 577 where the Court considered a similar case, concluding that the reasoning of the Tribunal member was sufficiently unclear that one could not draw the inference that the Tribunal member there had concluded, that the particular applicant in that case could not be forced to return to their home country and, therefore, the Tribunal decision was open to judicial review.

11.    It does not seem to me that that is the situation in this case.  If one reads the whole of the section of the decision with respect to these issues, no lack of clarity is evident.  The reasoning in this regard is at paragraphs [34] to [37] where the IAA said:

34. At his SHEV interview the applicant stated if he returned to Iran, the government would ask why he had left Iran illegally, which is an offence, and would think he had some political problem with them or that he had tried to spy on them and he was a Kurd and if they didn’t kill him they would put him in jail. I have not accepted the applicant departed Iran illegally. I accept the applicant has spent over five years in Australia, a western country. I accept he will be returning to Iran having sought asylum in Australia.

35. Iran currently does not accept involuntary deportees. [FN: DFAT, “DFAT Country Information Report Iran”, 21 April 2016, CIS38A8012677, 5.33.] As such, if the applicant were to return Iran, I consider it would be as a voluntary returnee. From DFAT’s anecdotal observation at airports, a voluntary returnee does not attract much interest from authorities amongst the large regular international movements of Iranians. Returnees will generally move quickly through airports without official interests. DFAT notes returnees even if traveling on a temporary travel document will only be questioned if they have done something to attract the attention of the authorities and the vast majority of people questioned would be released after an hour or two. [FN: Ibid 5.34]

36. On the evidence before me I am not satisfied the applicant, if he returns to Iran, would attract the adverse attention of the Iranian authorities or is otherwise of interest to the authorities in Iran as I am not satisfied he has done something to attract the attention of the authorities either in Iran or Australia. I am not satisfied he would be accused of being involved political activities against the Iranian government or of being a spy or that he would come to their attention merely on the basis of his Kurdish ethnicity. I accept the applicant may be questioned and even detained for a brief period of time as a returnee but I am not satisfied that this treatment of being questioned or detained briefly would amount to serious harm in this case.

37. I find that the applicant does not have a well-founded fear of persecution on any of these bases.

12.    The case is, therefore, one where the issue that the applicant says the IAA failed to deal with was, in fact, dealt with by the IAA in the sense that they concluded the applicant could not be involuntary deported. Therefore, there is not a risk of what might occur if he arrives as an involuntary deportee because that course of events cannot come to pass on the material before the decision-maker, nor on the findings that were open to the decision-maker and, in fact, made by the decision-maker.

13.    The decision-maker went on to consider whether or not the applicant would be at risk as a voluntary returnee.  Complaints are addressed at this not having been his case and that, therefore, it was beyond the requirements for the decision-maker to consider.  That is, the applicant never put the case that he would voluntarily return and, therefore, considering what might come to pass should he voluntarily return was an error. 

14.    It seems to me that, on the material before the IAA, it was apparent that either the applicant would have to remain in Australia without a visa, potentially in detention, or choose to voluntarily return to Iran.  At some point in the future, a voluntary return may be the applicant’s practical option and, therefore, it is one of the real possibilities that confronts the applicant.

15.    In these circumstances, I do not see that it is an error by the IAA to consider what might happen if the applicant, in the future, chooses to voluntarily return to Iran.  The IAA went on to consider that possibility and concluded that the applicant would not be at real risk of serious harm if he were to voluntarily return to Iran. 

16.    In these circumstance, I am not persuaded that the applicant has established a judicially reviewable error in the decision of the IAA in this case. 

17.    For completeness, I note that the applicant’s representatives also raised issues concerning the practical problems that confront the applicant and the government if he chooses not to voluntarily return given that Iran refuses to take involuntarily returnees.

18.    Clearly, there are some significant social issues that arise and consequential policy problems for government.  However, these are issues of policy for government and not matters for a Court hearing a case on a judicial review.  In the circumstances, it is not appropriate for me to embark upon any inquiry into these issues, nor to express any view about these matters which are, properly, matters for the Minister for Home Affairs and/or the elected representatives in Parliament. 

19.    I, therefore, formally dismiss the application for judicial review. 

Costs

20.    In this matter, the applicant has been unsuccessful.  The Minister seeks costs at the scale fee of $7,467.  This seems to me to be a reasonable sum.  In the circumstances, I therefore, order costs.

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

Date: 7 August 2019

Correction

The Applicant’s pseudonym has been amended from EJW18 to EWJ18.