EXP18 v Minister for Home Affairs

[2019] FCCA 1252

FEDERAL CIRCUIT COURT OF AUSTRALIA

EXP18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1252

Catchwords:
MIGRATION – Application for safe haven enterprise visa – applicant’s fears held to be unfounded – inconsistencies in claims – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss.5H(1), 5J, 36, 473CB, 473DD, 476

Cases cited:

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: EXP18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 987 of 2018

Judgment of: Judge Egan

Hearing date: 8 May 2019

Date of Last Submission: 8 May 2019

Delivered at: Brisbane

Delivered on: 8 May 2019

REPRESENTATION

Applicant: In person

Solicitor for the First Respondent: Mr Gardner, Solicitor of MinterEllison

ORDERS

1. That the application for review filed on 21 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 $7000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 987 of 2018

EXP18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant claims to be an Iranian national who arrived in Australia as an irregular maritime arrival on 11 March 2013.  On 23 February 2017 the applicant lodged an application for a safe haven enterprise visa (SHEV).

2. On 11 December 2017 the applicant attended an interview with an officer of the Minister’s department (SHEV interview).  On 6 February 2018 a delegate of the Minister refused to grant the applicant a SHEV.

3. On 9 February 2018 the Minister referred the delegate’s decision to the Immigration Assessment Authority (‘the Authority’).  On 5 March 2018 the applicant made a written submission to the Authority.  On 5 September 2018 the Authority affirmed the delegate’s decision.

4. On 21 September 2018 the applicant filed an application for review pursuant to the provisions of section 476 of the Migration Act 1958 (Cth) (‘the Act’).

5. At [3] of its reasons, the Authority noted that it had had regard to the material provided to it by the Secretary pursuant to the provisions of section 473CB of the Act. It was also noted that the Authority had received the submission from the applicant on 5 March 2018, some of which was not new information. The Authority, nevertheless, noted that it had had regard to such submission for the purpose of making its decision.

6. At [4] of its reasons, it was recorded by the Authority that the applicant had claimed for the first time that he was gay, and that he had tried to hide it, and had been to doctors to ask them if there was medication to cure it.  He was told by doctors that such characteristic was normal.  The applicant apparently stated that no one in his family in Iran were aware of his homosexuality. 

7. It was recorded that the applicant had claimed that members of his family would disown him if they found out he was homosexual and had tattoos, and that he would suffer grave punishment and death as a result.  He also stated that he feared that his father would kill him for being a homosexual.  He also referred to homosexuality in Iran as being illegal, against the Shia faith and which involved the death penalty.  He stated that he feared that he would be killed because he was gay.  He was also scared of being tortured and raped in the army for being gay.

8. At [5] of its reasons, the Authority noted that some homosexual people can be reluctant to disclose their sexuality to others.  It was noted that the applicant did not refer to his homosexuality in his visa application, or at the time of interview with the delegate.  It was also noted by the Authority that at all stages of the interview process involving the applicant the applicant was given ample opportunity to put forward his claims.  The Authority was not satisfied that the presence of an interpreter during an early interview was a reason why he did not provide information as to his homosexuality.  Despite having been told to put forward all of his relevant claims, the applicant only raised the issue of his homosexuality at a late stage. 

9. The Authority pointed to conflicting claims made by the applicant.  It noted that the applicant’s claim that he was forced to marry in circumstances where he was a homosexual was in contrast to the applicant’s statement at the initial interview that his father did not like him being with his girlfriend.  It was also noted that the applicant had not previously claimed that his older brother had a family, nor that his family, including his grandparents, would not give him any assistance, and would disown him, when they found out that he was homosexual and had tattoos, or further, that he would suffer grave punishment and death if it was so found out. 

10. The Authority was not satisfied that there were exceptional circumstances to justify considering the new information and it found that the provisions of section 473DD of the Act had not been met. Section 473DD provides as follows:

    “473DD Considering new information in exceptional circumstances

    For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

    (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

    (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

    (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

    (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.”

11. At [6] of its reasons, the Authority dealt with the assertion that the applicant fell within the category of being a person who evaded the army draft and that that would result in criminal proceedings being brought against him before a military court.  The applicant was also noted as having referred to the Iranian Government deporting tens of thousands of Arabs and building new settlements for non-Arabs and mistreating Arabs, including detaining women and children and ex-appropriating farmlands for settlements.  The Authority held that the applicant had not provided any sources for any of that information and the Authority was not able to verify the truth of any such claims.

12. In all of the circumstances, the Authority was not satisfied that there were exceptional circumstances justifying the consideration of such new information and the Authority found that the provisions of section 473DD had not been met in that regard.

13. At [7] of its reasons, the Authority recorded that the applicant had claimed that he had lived through multiple attacks and had suffered violence because of his heritage.  It was recorded that the applicant stated that he did not want to go into the details but that he had heard, through relatives and friends, of grown men being raped and tortured and that he was scared for his life should he be returned to Iran. 

14. It was noted that the applicant had not made the claims previously, despite having had an opportunity to do so. It was also found that such information was vague and lacking in detail. The Authority was not satisfied that there were exceptional circumstances justifying the consideration of such new information, and the Authority found that the provisions of section 473DD had not been met in that regard.

15. The applicant’s claims for protection were set out in [8] of the reasons of the Authority as follows:

    ·“He is Ahwazi Arab who has experienced societal discrimination.

    ·He will be killed due to the tattoos on his arm.

    ·He experienced psychological harm and was constantly attacked by the police. On one occasion he and his girlfriend were stopped in a park and questioned as to their relationship.

    ·The Iranian government will force him to go to the army and if he refuses, his life will be at stake.

    ·His family have converted to Christianity and the Iranian government will kill him and torture him as a result. His family are also angry at him for remaining a Muslim.

    ·He has no family in Iran as his parents and younger brother are in Austria.

    ·He will be accused of being a traitor for due to escaping Iran, living in Australia and not performing compulsory military service.

    ·He has experienced domestic violence at the hands of his father.”

16. At [9] and [10] of its reasons the Authority set out the refugee obligations and well-founded fear of persecution criteria, as provided for in section 5H(1) and section 5J of the Act.

17. At [14] of its reasons, the Authority dealt with the applicant’s assertions that he would be mistreated by reason of his Arab ethnicity.  The Authority accepted that the applicant had been subjected to negative comments because of his ethnicity and language but it found that the treatment experienced by the applicant did not amount to serious harm. 

18. It was accepted that upon return to Iran the applicant may suffer discrimination in employment and access to housing but it did not accept that the applicant would not be able to find employment or accommodation, or would otherwise be unable to subsist.  The Authority accepted that upon return the applicant may suffer societal discrimination such as that which he had previously experienced, but it found that that would not amount to serious harm. 

19. Whilst there was some country information cited in support of the proposition that some Ahwazi Arabs have been subjected to serious harm, it was noted that those reports related to people who had been actively engaged in activities which were considered to be a threat to the Iranian regime.  The Authority found that there was nothing that the applicant had done, either in Iran or Australia, which would bring him to the adverse attention of Iranian authorities.  The Authority also found that the applicant had not done anything that would be seen as an attempt to assert cultural or political rights adverse to the regime, or that would create a perception that he threatened the constitutional foundations or territorial integrity of the Islamic public.

20. The Authority, at [15] of its reasons, did not accept that the applicant faced a real chance of serious harm by reason of his ethnicity should he be returned to Iran.

21. As to tattoos, country information suggested that penalties for having a tattoo were similar to those imposed for dress or hairstyle irregularities, deemed as improprieties, namely, a warning or a fine.  Based on country information, the Authority found that the imposition of the giving of a warning or the imposition of a fine would not amount to serious harm and that the applicant would not face a real chance of serious harm upon his return to Iran for having tattoos.

22. As to the applicant’s claim that the applicant’s family members had converted to Christianity after he had departed Iran, it was found by the Authority, at [18] of its reasons, that there was nothing before the Authority to indicate that the Iranian regime, or anyone else in Iran, targeted family members of Iranians who had converted to Christianity and departed the country. 

23. Though the applicant had claimed that his family were angry at him because he wished to continue to be a Shia Muslim, it was noted by the Authority that the applicant had given evidence that he was still in regular contact with his mother, and that there was otherwise no indication that any family member had harmed him or threatened him by reason of his religious intentions.  The Authority did not accept that the applicant faced a real chance of being accused of apostasy, or face any harm, on account of those claims upon his return to Iran.

24. The Authority similarly dealt with the other claims made by the applicant relating to violence from his father, an incident with his girlfriend and the police, his failure to undertake military service, his having no family living in Iran, his assertion that he would be targeted by reason of his being a failed asylum seeker from a western country, and in respect of an incident in Australia referred to in [31] of the Authority reasons, together with the applicant’s psychological health. 

25. In each respect the Authority fairly, and in detail, dealt with each of the applicant’s assertions, finding, in each respect, that the applicant would not face a real chance of harm or a real chance of persecution in respect of any of his claims should he be returned to Iran. 

26. At [32] of its reasons, the Authority found that, considered cumulatively, none of the applicant’s claims warranted the applicant being seen to be in a position of serious harm should he be returned to Iran. The Authority duly found that the applicant did not meet the definition of refugee as set out in section 5H(1) of the Act, nor that he met the criteria as set out in section 36(2)(a) of the Act.

27. As to complementary protection criteria, the Authority had regard to the definition of significant harm as set out in section 36(2A) of the Act. At [36] of its reasons, the Authority found that, based on the factual findings earlier made by the Authority, there was no real risk that the applicant would face significant harm on account of any of the matters claimed by the applicant to be reasons why he would suffer serious harm should he be returned to Iran. The Authority found that none of the claims constituted a reasonable basis for a finding that the applicant would suffer a real risk of significant harm should he be returned to his country of origin.

28. At [40] of its reasons, the Authority found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned from Australia to Iran, there was a real risk that the applicant would suffer significant harm. It found that the applicant did not meet the relevant complementary protection criteria as set out in section 36(2)(aa) of the Act.

29. The Authority dealt in detail with each of the issues and claims made by the applicant.  It is noted that the application for review contained a general unparticularised ground for review.  As to that ground, insofar as the ground refers to the delegate of the Minister having erred in making a decision, this court has no jurisdiction to entertain such ground for review. 

30. As to the other general assertion that the Authority erred in law in arriving at its decision, there is no basis for the claim that the Authority did not properly assess each of the claims made by the applicant.  The Authority did so in a detailed and conscientious way.  The applicant has not pointed to any error in the way in which the Authority has dealt with each of the claims made by the applicant.   

31. It cannot be said that the Authority failed to make any obvious inquiry about a critical fact. In Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25]-[27] French CJ, Gummow, Hayne, Crennan, Kiefel and LJJ said 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. 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.”

32. 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 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 [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 [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. No jurisdictional error has been demonstrated on the part of the Authority.

3. The application for review is without merit and is dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 6 June 2019