FFZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCCA 1
•4 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FFZ18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iran – applicant’s claims substantially accepted but his fears found not to be well-founded – whether the applicant was an unauthorised maritime arrival considered – whether the Authority erred in considering new information, in assessing the applicant’s claim of religious conversion, in relation to the modification of the applicant’s behaviour or in relation to apostasy considered – no jurisdictional error. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.4 |
| Cases cited: Aban v MILGEA (1991) 31 FCR 93 |
| Applicant: | FFZ18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2836 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 6 November 2019 |
| Date of last submission: | 9 January 2020 |
| Delivered at: | Sydney |
| Delivered on: | 4 February 2020 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application as amended on 16 May 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2836 of 2018
| FFZ18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 11 September 2018. The Authority affirmed a decision of the delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from submissions filed on behalf of the Minister.
The applicant is a national of Iran who arrived at Christmas Island by boat in September 2012. On 30 March 2016, he applied for a Safe Haven Enterprise Visa (SHEV).[1] On 7 September 2017, the delegate refused the SHEV and the matter was referred to the Authority pursuant to s.473CA of the Migration Act 1958 (Cth) (Migration Act).[2] The Authority affirmed the delegate’s decision on 11 September 2018, but the applicant filed an application for judicial review. That proceeding was conceded and the matter was remitted to the Authority.[3]
[1] Relevant Documents (RD) 117
[2] RD 290
[3] RD 368
On 22 September 2017 and 30 August 2018, the applicant’s representative provided various documents and submissions to the Authority.[4]
[4] RD 327-335, 374-385
Applicant’s claims
The applicant’s claims may be summarised as follows:
a)he was born a Shia Muslim but has rejected Islam. He was arrested, interrogated, humiliated and sexually assaulted over 15 days in 2010. He was found to be in possession of a non-Islamic book and was accused of insulting the Supreme Leader. He refused to sign a confession, and was released when he agreed not to tell anyone about what had happened or to say anything about the government. He became isolated and depressed after this. Two years later, he was interrogated again;
b)in June 2012, he decided to tell his psychologist about his sexual assault. The following day, intelligence services visited his house and he believed the psychologist reported their conversation. He departed Iran in July 2012. The intelligence services again visited his house looking for him after his departure;
c)since his arrival in Australia, he has uploaded online political posts, attended a meeting with the National Council of Iran and a public meeting, although he is not a formal member of any anti-Iranian regime. He has written a draft account of his experience and intends to publish this;
d)he is a Christian and has been baptised. He will lack access to mental health services in Iran and will be at risk if he does access them; and
e)he fears harm on account of his actual or imputed anti-regime political opinion and being considered an apostate, as well as for reason of being a failed asylum seeker in a western country.
Delegate’s decision
The delegate accepted that the applicant rejected Islam, was in possession of a non-Islamic book and was arrested, detained, interrogated, and sexually assaulted for 15 days in 2010 and that he has experienced mental health problems as a result. The delegate also accepted that the applicant had attended some meetings and posted some anti-regime material since his arrival in Australia, but found that he was not at real risk of harm as a result, as he did not have an adverse profile and would not come to the adverse attention of the Iranian authorities as a result of his social media activities/participation in a demonstration. Further, the delegate found the applicant had not converted to Christianity and would not proselytise about being a non-practising Muslim.
Authority decision
On 11 September 2018, the Authority made its decision affirming the decision of the delegate, and reasoned and concluded as follows.
New information
Insofar as submissions contained argument in response to the delegate’s decision, it was considered to be not new information, and so was taken into account.[5]
[5] RD 392 at [5]
In relation to a report of a psychologist dated 18 September 2017, at [6] the Authority accepted that it could not have been provided to the delegate, was credible personal information and that there were exceptional circumstances to justify considering it.
In relation to those aspects of the September 2017 submission and a letter from a pastor dated 23 August 2018 which provided information regarding the applicant’s engagement with the Christian faith, the Authority found that this was new information. However, after consideration of all of the circumstances of the provision of the information, it was not satisfied that there were exceptional circumstances warranting its consideration. However, it clarified at [9]-[10] that it did have regard to the applicant’s claimed conversion to Christianity to the extent that it was raised before the delegate.
At [11], the Authority found that pictures, screenshots and information relating to political activities in February 2018 could not have been provided to the delegate and that there were exceptional circumstances to justify consideration of it.
At [12], the Authority was satisfied that exceptional circumstances existed such that it would take into consideration a Department of Foreign Affairs and Trade (DFAT) report dated June 2018.
Assessment of the applicant’s claims
The Authority accepted at [17] that the applicant has been diagnosed with Post-Traumatic Stress Disorder (PTSD), depression and anxiety and had regard to those conditions in accepting that he was not able to discuss his past experience in Iran in detail at interview, and in assessing his evidence generally.
The applicant’s claims about being detained and mistreated by security services for 15 days were plausible.[6] However, due to inconsistencies in his evidence, the Authority did not accept that the applicant was in possession of an anti-Islamic book at the time he was arrested, that he was questioned by Etelat again prior to the elections, or that they were searching for him following his disclosures to his psychologist. The Authority found at [27]-[28] that the applicant was of no further interest to the authorities following his release from detention or at the time of his departure.
[6] RD 396 at [20], RD 398 at [27]
The Authority accepted that the applicant was subjected to horrific mistreatment and that these experiences have had a lasting effect on him, however, it did not accept that anything has occurred since his departure to suggest that the authorities continue to be interested in him or in his absence from Iran. The chance of the applicant being viewed as a person of adverse interest and harmed in connection to those past events is remote.[7]
[7] [29]
It was accepted that the applicant no longer believes in Islam and that he may have had occasional private conversations about his religious beliefs, has had some involvement with Christianity in Australia, and has been baptised. However, at [31]-[33], the Authority was not satisfied that the applicant has a genuine belief in Christianity or a commitment to practising it in Iran.
The Authority accepted that the applicant may dislike the Iranian government and have some sympathy to the plight of political prisoners, and has voiced these opinions. However, it concluded that the applicant had posted material on Facebook and joined and attended a small number of a National Council events to create a claim that he is politically active. It ignored those activities under s.5J(6) of the Migration Act, on the basis that they were for the purpose of strengthening his refugee claims.[8]
[8] [43]
In relation to the photographs, the Authority found that, even if the Iranian authorities were aware of them, the chance of them identifying the applicant and taking an adverse interest in him for that reason was remote. If the applicant has been writing about his experiences, the Authority did not accept, at [44]-[46], that the applicant has any intention or commitment to disseminate his writing.
Given the country information, the Authority did not accept at [48] that the authorities would monitor the applicant’s religious practice in Iran, or lack thereof, or that he would be forced to practise Islamic rituals, or be identified as an apostate.
The Authority found that the Iranian authorities may be aware that the applicant has claimed asylum in Australia, but it was not accepted that returning failed asylum seekers are imputed with an anti-government opinion or otherwise adversely viewed. There was not a real chance of the applicant being harmed for this reason, or in combination with other reasons.[9]
[9] [52]
The Authority found that the applicant was not at risk of harm by reason of his disclosures to a psychologist. Further, he will be able to access the treatment he requires in Iran and there is not a real chance of harm by reason of his mental conditions.[10]
[10] RD 406 at [55]
In considering complementary protection, the Authority found that the applicant was not at risk of significant harm by reason of his mental health conditions. At [63], the Authority had regard to the conduct it had disregarded, namely the posting on Facebook or attending meetings and found that he would not face harm as he was not a person of interest and because of country information not supportive of the claim. Similarly, the Authority found at [64] that the applicant did not risk significant harm as a failed asylum seeker, or by reason of a combination of his history, claims and circumstances.
The current proceedings
These proceedings began with a show cause application filed on 8 October 2018. The applicant now relies upon an amended application filed on 16 May 2019. The grounds in that application as amended are:
Ground 1: The respondents failed to follow procedures required by law
1. The decision by the IAA is vitiated by jurisdictional error as the applicant was not an “unauthorised maritime arrival” (UMA) as defined by section 5AA of the Migration Act 1958 (Cth) and therefore was not “fast track applicant” as defined by section 5 of the Migration Act 1958 (Cth). As a consequence, the applicant was not notified of the decision made by the delegate to Minister on 24 May 2017 pursuant to section 66 of the Migration Act 1958 (Cth).
Particulars
a) On 22 July 2012, the applicant departed Iran by plane for Indonesia. Approximately six weeks later, the applicant left Indonesia for Australia by boat and the boat was intercepted by the Australian Navy.
b) The applicant was first detained on board a vessel belonging to the Commonwealth of Australia, carrying the flag of the Commonwealth of Australia, which is registered to Canberra, as the Australian Capital Territory (ACT) of the Commonwealth of Australia.
c) At the relevant time that the boat was intercepted, neither the vessel belonging to the Commonwealth of Australia or the ACT were excised offshore places as defined by section 5 of the Migration Act 1958 (Cth).
d) On 2 September 2012, the applicant arrived at Christmas Island.
e) The port on Christmas Island was declared a port on 22 January 1981. Section 3 of the Migration Amendment Act (No 2) 1980 (Cth), which provided the power to proclaim a port on Christmas Island, came into effect a day later, on 23 January 1981. As a consequence, the purported appointment of a port as a proclaimed port, in respect of an area of waters within the Territory of Christmas Island, by notice published in the Commonwealth of Australia Gazette on 22 January 1981, is invalid.
f) At [1], the IAA observed that 1. The referred applicant (the applicant) claims to be a national of Iran. On 30 March 2016 he lodged an application for a Safe Haven Enterprise Visa (protection visa).
g) At [2], the delegate of the Minister for Immigration and Border Protection (the delegate) refused to grant the visa in a decision dated 7 September 2017. The delegate accepted the applicant’s claims regarding his experiences in Iran, including that he had been detained for 15 days in 2010. The delegate accepted that the applicant has rejected Islam, that he has made political posts on Facebook while in Australia and had attended meetings in Sydney of the National Council of Iran. However, the delegate found the applicant was not of ongoing interest to authorities at the time he departed Iran and found he did not have a profile that would be of interest to authorities or lead to him being harmed.”
h) At [3], the “IAA affirmed the delegate’s decision not to grant the visa on 20 April 2018. On 6 August 2018 the Federal Circuit Court made orders by consent quashing that decision and remitting the matter to the IAA for reconsideration.”
i) The applicant was not “UMA’s” and were not a fast track reviewable person. As a consequence, the applicant was not notified of the decision by the delegate to the Minister made on 7 September 2017 pursuant to section 66 of the Migration Act 1958 (Cth).
Ground 2: The IAA erred by finding that there were not exceptional circumstances to justify consideration of new information regarding the submission dated 23 and 29 May 2018, pursuant to section 473DD(a) and (b) of the Migration Act 1958 (Cth)
2. The finding by the IAA at [7]-[10] that there were not “exceptional circumstances” to justify consideration of the “new information” regarding the “September 2017 submission” regarding the applicant’s conversion to the Christian faith, was affected by jurisdictional error for the following reasons.
a) The IAA failed to consider the requirements pursuant to section 473DD(a) of the Migration Act 1958 (Cth) in conjunction with the requirement pursuant to section 473DD(b)(i)(ii) of the Migration Act 1958 (Cth); and/or
b) There were exceptional circumstances to justify consideration of the “September 2017 submission” pursuant to section 473DD(a) of the Migration Act 1958 (Cth); and/or
c) The "September 2017 submission” was not and could not have been provided to the Minister before the Minister made the decision under section 65 pursuant to section 473DD(b)(i) of the Migration Act 1958 (Cth); and/or
d) the IAA misapplied principle with regard to whether the September 2017 submission” was “credible personal information” pursuant to section 473DD(b)(ii) of the Migration Act 1958 (Cth); and /or
e) the IAA failed to take into account whether the September 2017 submission”, which was not previously known to the delegate and if it was known by the delegate, whether it would have affected the consideration of the applicant’s claims, pursuant to section 473DD(b)(ii) of the Migration Act 1958 (Cth).
f) In the premises, the IAA took an inappropriately narrow view of the breadth of the expression “exceptional circumstances” in section 473DD of the Migration Act 1958 (Cth). As a consequence, the review by the IAA pursuant to section 473CC of the Migration Act 1958 (Cth) miscarried by way of jurisdictional error.
Particulars
The new information dated 23 and 29 May 2018
i. At [7], the IAA observed that the September 2017 submission provides information regarding the applicant’s engagement with the Christian faith and states he will continue to explore the religion. It states that he converted after watching the Farsi Mohabat television channel. A further email to the IAA on 30 August 2018 attaches a letter from a senior pastor of Centre of New Life Sydney, dated 23 August 2018. The letter provides information regarding the applicant’s engagement with that church, commencing in early 2017 including attending a course to prepare for baptism, being baptised on 5 August 2017, his engagement with the church community, attraction to the religion and gradual understanding of the teachings of Christianity. The letter states the applicant can practise his religion without fear of retribution, and that his Christian faith will be a liability in Iran.”
ii. At [8], the IAA observed that “[a] statutory declaration and submission given to the delegate on 9 August 2017 following the protection visa interview indicated that the applicant was a Christian and had been baptized but provided no further detail regarding his engagement with Christianity or when the claimed baptism had occurred. It was said at that time that his claim was based on his rejection of Islam in particular, separate from his actual current systematic belief. I find the letter, the information in the submission that he converted after watching the Farsi Mohabat television channel and that he will continue to explore Christianity, to be new information.”
iii. At [9], the IAA observed that “[i]t would appear from the letter that the applicant’s involvement with the church commenced some months prior to the protection visa interview, and his baptism took place less than two weeks following the interview and three days prior to his August 2017 statutory declaration. The applicant specifically stated at that time that he was not making claims in respect of his claimed conversion. He was represented by a migration agent (the same agent who continues to represent him) and was advised by the delegate that if his application was refused he may not have another chance to provide further information in support of his claims. The September 2017 submission states that the applicant did not elaborate on his Christian faith during the interview because he is not one to exaggerate and he considered he had not fled Iran due to his faith and did not wish to focus on this factor. However, I note that that the applicant made other claims to the delegate which arose from activities in Australia rather than the reasons he had fled Iran. Even now, beyond what is said in the letter itself, the applicant has not specified what, if any, harm he fears in Iran on account of his claimed conversion or explained why he now is submitting information of this nature. Beyond the references to his baptism and the preparatory course, the information regarding his involvement with the church contained in the letter is in broad terms and does not provide specific information regarding his current engagement with the church. The email attaching the letter simply states that it must be read in conjunction with previous submissions, evidence and statements, but none of those provided such information.”
Jurisdictional error
iv. The IAA erred at [10] by finding there are exceptional circumstances to consider these new claims and the related new information and documents provided in support of these claims.
10. While I have taken into account that the new information regarding Christianity is potentially corroborative of a claim made before the delegate and that the letter itself letter is recent and post-dates the delegate’s decision, I have also weighed the above matters, including that the applicant appears to have specifically chosen not to provide further detail relating to his claimed conversion to the delegate, has not explained what has changed such that he is now providing it, and has given very little explanation of what he is claiming in relation to his
Ground 3: There was an insufficient logical or evidentiary basis for the IAA to find the applicant was not a “genuine” Christian after finding the applicant was baptised, attended bible classes and church services
3. The decision by the IAA was affected by jurisdictional error as there was an insufficient logical or evidentiary basis for the IAA to find that the applicant was not a “genuine” Christian at [21] under the refugee criterion and at [39] under the complementary criterion, after accepting at [21] that the applicant was “baptised in both the Liberty Baptist Church and Hillsong Church in 2013” and that “he attended church services in these churches.”
Particulars
The protection claims
a) At [16], the IAA accepted the applicant is a male citizen of the Islamic Republic of Iran (Iran). In summary, at [13], the applicant claims of protection in the Commonwealth of Australia (Australia) due to a real risk of harm due to his religious conversion from Shia Islam to Christianity, which is prohibited in Iran and where apostasy carries the death sentence.
13. The applicant’s claims can be summarised as follows:
§ The applicant had rejected Islam while in Iran. He was forced to practice Islamic rituals to avoid persecution.
§ In February 2010 the applicant was arrested on the street by Etelaat along with a number of others. At the time of the arrest he was in possession of an anti-Islamic book given to him by his doctor. He was detained for around 15 days at a place he later learnt was Kahrizak Detention Centre. During that time he was interrogated, beaten, humiliated and raped repeatedly. He was accused of being God’s enemy and the enemy of the government and asked about the book. He was asked to sign a confession to bad mouthing the Supreme Leader, acting against the Islamic regime and disturbing the public with anti-Islamic books. He was asked to admit to membership of the Green Movement and other political and religious groups. He refused to sign the confession and denied knowledge of the protest and other people arrested. The applicant was released after being threatened not to tell anyone about his experience or to go to a doctor or hospital.
§ Before the election the applicant was taken by the Etelaat to their office and interrogated for two hours about whether he had joined a political group or spoken about what had happened in prison. He was asked about the psychologist that he had been seeing at his father’s instigation.
§ On 24 June 2012 the applicant disclosed his rape experience to his psychologist and told him that he wanted to write about what had happened to him in prison. The following day, the applicant was at a friend’s house when he heard from his father that Etelaat were looking for him. The applicant believes that the psychologist was either working for Etelaat or was forced to tell Etelaat about the applicant’s plans to write a book about the incidents in prison, and that Etelaat wanted to lock up the applicant or kill him because of this.
§ Two weeks after the applicant’s departure his father told him Etelaat had come to the door and threatened the father to tell them the applicant’s whereabouts. His father told them he did not know but as Etelaat never returned the applicant thinks they had found his name on the list of people who departed the country.
§ The applicant has now written parts of the book he had intended to write and is aiming to publish his writings one day.
§ In Australia the applicant is active on Facebook and in the Iranian community and has expressed support for political prisoners. He has become a member of the National Council of Iran which supports the former regime. He has attended protests, including outside the Iranian embassy. Photos of protests may have been shared on social media.
§ He is a Christian and has been baptised.
§ The applicant will lack access to mental health services in Iran and will be at risk if he does access them.
§ The applicant fears he will be seriously harmed or killed by Iranian authorities including Etelaat, because he will be imputed with a political opinion against the government for carrying an anti-Islamic book, because he rejected Islam and would be viewed as an apostate, because he told his psychologist about the rape, because he wanted to write a biography and disclose how the government threatened and treated him, and as a failed asylum seeker in a western country.
The refugee criterion
b) At [33], the IAA observed that the “applicant’s claimed conversion to Christianity was raised for the first time in material provided to the delegate on 9 August 2017. He did not refer to having a belief in Christianity at the protection visa interview which took place around two weeks earlier, despite being asked about his religious beliefs and specifically identifying his rejection of Islam as one of the reasons he feared returning to Iran. I am willing to accept that the applicant has had some involvement with Christianity in Australia and has been baptised.” However, the IAA erred by finding that “I am not satisfied on the evidence that he has a genuine belief in Christianity or a commitment to practising it in Iran.”
The complementary criterion
c) Further, the IAA erred at [64] under the complementary criterion, by finding that “I have found above that although arrested on suspicion of political activity, the applicant was not of any further interest to Iranian authorities after his release from detention in 2010. I have not accepted that he has genuinely converted to Christianity and have found authorities would not have monitored his religious activity in Australia, and that the prospect of him being identified as a person of interest because of the National Council Facebook page remote.”
Ground 4: The IAA misapplied section 5J(3)(i) of the Migration Act 1958 (Cth) by finding the applicant can modify his behaviour so as to avoid a real chance of persecution
4. The IAA misapplied section 5J(3)(i) of the Migration Act 1958 (Cth) at [33], by failing to consider whether the applicant will be forced to modify his (a) religious beliefs as non-practising Muslims; or (b) his political opinion or membership of a social group as females in Iran, so as to avoid persecution. Alternatively, the IAA erred by implication that the applicant can or should modify his (a) religious beliefs as non-practising Muslims, or (b) his political opinion or membership of a social group as a Christian and an apostate in Iran, so as to avoid a real chance of persecution in Iran.
Particulars
a) At [33, the IAA observed that the “applicant’s claimed conversion to Christianity was raised for the first time in material provided to the delegate on 9 August 2017. He did not refer to having a belief in Christianity at the protection visa interview which took place around two weeks earlier, despite being asked about his religious beliefs and specifically identifying his rejection of Islam as one of the reasons he feared returning to Iran. I am willing to accept that the applicant has had some involvement with Christianity in Australia and has been baptised.” However, the IAA erred by finding that “I am not satisfied on the evidence that he has a genuine belief in Christianity or a commitment to practising it in Iran.”
Ground 5: The IAA erred by failing to distinguish the application of section 5J(6) of the Migration Act 1958 (Cth) to refugee criterion from the complementary criterion
5. The decision by the IAA was affected by jurisdictional error as the IAA failed to consider the applicant’s claim that he faces a real risk of significant harm as an apostate under the complementary criterion at [64] of the decision record. The IAA therefore erred by misinterpreting, misunderstanding or misapplying the applicable law by conflating the considerations regarding the applicant’s claims as an apostate under the refugee criterion at [33] of the decision record, with the considerations under the complementary criterion at [39] of the decision record.
Particulars
The refugee criterion
a) At [33], the IAA observed that the “applicant’s claimed conversion to Christianity was raised for the first time in material provided to the delegate on 9 August 2017. He did not refer to having a belief in Christianity at the protection visa interview which took place around two weeks earlier, despite being asked about his religious beliefs and specifically identifying his rejection of Islam as one of the reasons he feared returning to Iran. I am willing to accept that the applicant has had some involvement with Christianity in Australia and has been baptised.” However, the IAA erred by finding that “I am not satisfied on the evidence that he has a genuine belief in Christianity or a commitment to practising it in Iran.”
The complementary criterion
b) Further, the IAA erred at [64] under the complementary criterion, by finding that “I have found above that although arrested on suspicion of political activity, the applicant was not of any further interest to Iranian authorities after his release from detention in 2010. I have not accepted that he has genuinely converted to Christianity and have found authorities would not have monitored his religious activity in Australia, and that the prospect of him being identified as a person of interest because of the National Council Facebook page remote.”
In addition to the book of relevant documents filed on 5 November 2018, I have before me as evidence the applicant’s affidavit filed with his original show cause application and the affidavit of Kay Lynn Ng made on 3 July 2019. Ms Ng deposes as to the applicant’s status on arrival at Christmas Island.
At the trial of this matter on 6 November 2019, the applicant sought an adjournment. He noted that his former solicitors had withdrawn on 19 September 2019 and that his former counsel (Mr Jay Williams) was unavailable due to his personal circumstances. He was in no position to deal himself with the technical legal issues arising in the case. Noting that the applicant had approximately two months before the trial to obtain alternative legal representation, I declined the request for an adjournment, but provided the applicant with an extended opportunity following the hearing to seek alternative legal assistance and to file written submissions responsive to those of the Minister by 20 December 2019. Nothing else was filed. I agree with and accept the Minister’s submissions.
Consideration
Ground 1
Ground 1 claims that the Authority’s decision was vitiated by jurisdictional error because the applicant was allegedly not an “unauthorised maritime arrival”, on the basis that the appointment of a port as a proclaimed port at Christmas Island is allegedly invalid.
This ground fails for several reasons.
First, the issue is irrelevant given that the applicant disembarked onto land on Christmas Island on 17 September 2012.[11] The Territory of Christmas Island was at that date an “excised offshore place” within s.5AA(1)(a)(i) of the Migration Act.[12] The applicant thereby met the definition of “unauthorised maritime arrival” in s.5AA(1)(a) and (2)(a) of the Act.[13] He was thus a “fast track applicant” within the definition in s.5(1) of the Migration Act, and the delegate’s decision was thus a “fast track decision” within s.5(1) and thus a “fast track reviewable decision” within s.473BB, which the Authority had jurisdiction to review under s.473CC(1).
[11] see the affidavit of Ms Ng
[12] see the definitions of “excised offshore place” and “excision time” in s.5(1)
[13] Sadiqi v Commonwealth (No.2) (2009) 181 FCR 1 at [168] per McKerracher J
Secondly, the port was in any case validly appointed. The only argument for invalidity relied upon by the applicant is that the appointment of a port at Christmas Island on 22 January 1981 was made the day before the commencement of the empowering provision in s.3 of the Migration Amendment Act (No 2) 1980 (Cth) (the 1980 Amendment Act).[14] However this does not mean that the appointment was invalid, as the then s.4 of the Acts Interpretation Act 1901 (Cth) has the effect that the appointment was permitted and came into effect on the same day as the empowering provision ie 23 January 1981.[15]
[14] see DBB16 v Minister for Immigration [2018] FCAFC 178 at [78]
[15] eg Aban v MILGEA (1991) 31 FCR 93 at 97 per Morling, Jenkinson and Heerey JJ
At the time of publication of the appointment of a port at Christmas Island in the Commonwealth Gazette No S9 on 22 January 1981 (the Appointment), s.4 of the Acts Interpretation Act, which had then been inserted by s.3(1) of the Acts Interpretation Amendment Act 1976, relevantly provided as follows:
(1) Where an Act (in this section referred to as the Act concerned), being -
(a) an Act enacted on or after the date of commencement of this section that is not to come into operation immediately upon its enactment; or
(b) an Act enacted before the date of commencement of this section that did not come into operation on or before that date, is expressed to confer power, or to amend another Act in such a manner that the other Act, as amended, will confer power, to make an appointment or to make an instrument of a legislative or administrative character (including rules, regulations or by-laws), then, unless the contrary intention appears, the power may be exercised, and anything may be done for the purpose of enabling the exercise of the power or of bringing the appointment or instrument into effect, before the Act concerned comes into operation as if it had come into operation.
(2) An appointment or instrument made by virtue of sub-section (1) or, in the case of such an instrument containing a number of provisions, each of those provisions, takes effect-
(a) on the day on which the Act concerned comes into operation; or
(b) on the day on which the appointment, instrument or provision, as the case may be, would have taken effect if the Act concerned had been in operation when the appointment or instrument was made, whichever is the later.
It was necessary for the Appointment to be in place at least when s.13 of the 1980 Amendment Act commenced operation (i.e. 23 January 1981). That was because s.4 of the 1980 Amendment Act extended the operation of the Act to the Territory of Christmas Island, and s.13 contemplated the possibility of an overseas vessel (within the meaning of s.12) being in port in the Territory of Christmas Island immediately before the commencement of that provision.[16]
[16] in which case the Migration Act applied in relation to the vessel and members of its crew as if it had arrived at a port in Australia immediately after the commencement of the section
In the present case, the relevant empowering provision, in 1981 being s.5(1A)(a) of the Migration Act (as inserted by s.3(2) of the 1980 Amendment Act) did not come into operation immediately upon its enactment, and was expressed to confer power to appoint a port in the Territory of Christmas Island, and, thus, was an enactment of the type contemplated by the then s.4(1)(a) of the Acts Interpretation Act.
By reason of s.4(2) of the Acts Interpretation Act, the Appointment took effect on the day on which s.3(2) of the 1980 Amendment Act came into operation. That is to say, the Appointment took effect on and from 23 January 1981, not 22 January 1981.
It is apparent that the Full Federal Court in DBB16 had not been referred to s.4 of the Acts Interpretation Act or Aban, and in any event their Honours do not state that the appointment of a port at Christmas Island was invalid. For the reasons already given, the Appointment was not invalid, as held in GGD18 v Minister for Home Affairs 7 Anor (No 3).[17] GGD18 is not clearly wrong and so should be followed as a matter of comity. An appeal from GGD18 was dismissed,[18] but the appellant abandoned the arguments put below.[19]
[17] [2019] FCCA 444 (Judge Street)
[18] GGD18 v Minister for Immigration [2019] FCA 1463 at [77] (Thawley J)
[19] [24]
In a post hearing submission filed by leave, the Minister also points out that the instrument that presently operates to appoint a proclaimed port at Christmas Island under the Migration Act is the notice dated 22 August 1994, as published in the Commonwealth Gazette, No 34 on 31 August 1994. The Full Federal Court in DBB16 referred to the proclamation of a port at Christmas Island in 1981. The Full Federal Court did not refer to, or deal with, the subsequent 1994 appointment. Nor does the amended application. As such, even if the applicant’s argument concerning the 1981 appointment were correct (although it is not for the reasons already given), that could not provide a basis for granting relief in this case.
For all of the above reasons, the first ground fails.
Ground 2
Ground 2 claims that the Authority erred at [7]-[10] in finding that that there were not exceptional circumstances within s.473DD(a) of the Migration Act to justify it considering new information concerning the applicant’s engagement with Christianity.
Insofar as submissions contained argument in response to the delegate’s decision, it was considered to be not new information, and so was taken into account.[20] In relation to a report of a psychologist dated 18 September 2017, the Authority accepted at [6] that it could not have been provided to the delegate, was credible personal information and that there were exceptional circumstances to justify considering it.
[20] RD 392 at [5]
In relation to those aspects of the September 2017 submission and a letter from a pastor dated 23 August 2018 that provided information regarding the applicant’s engagement with the Christian faith, the Authority found that this was new information. However, after consideration of all of the circumstances of the provision of the information, it was not satisfied that there were exceptional circumstances warranting its consideration. At [9]-[10], the Authority had regard to the applicant’s claimed conversion to Christianity to the extent that it was raised before the delegate.
The Authority found at [11] that pictures, screenshots and information relating to political activities in February 2018 could not have been provided to the delegate and that there were exceptional circumstances to justify consideration of it.The Authority was satisfied at [12] that exceptional circumstances existed such that it would take into consideration a DFAT report dated June 2018.
Following Plaintiff M174/2016 v Minister for Immigration[21] at [30], “exceptional circumstances” cannot be ones that are regularly, or routinely or normally encountered, but need not be unique or unprecedented or very rare. The applicant bears the onus of showing that the Authority misconstrued or misapplied s.473DD(a).
[21] (2018) 353 ALR 600
The ground claims that the Authority took too narrow a view of “exceptional circumstances”, but does not explain why. In the absence of the applicant identifying some matter materially bearing on the Authority’s assessment of whether s.473DD(a) was satisfied, and that should have been, but was not, taken into account by the Authority, this ground must fail.[22] The ground also suggests that the Authority should have considered s.473DD(b)(ii), but there was no requirement for it to explicitly also consider s.473DD(b) having found that s.473DD(a) was not satisfied. As stated in Plaintiff M174 at [31], the requirements of s.473DD(a) and (b) are cumulative. Accordingly having found that s.473DD(a) was not satisfied, the Authority was not obliged to also go on to explicitly consider the matters in s.473DD(b).[23] This ground fails.
[22] eg AQU17 v Minister for Immigration [2018] FCAFC 111 at [15]-[17]
[23] AQU17 at [13]-[14]; DLB17 v Minister for Home Affairs [2018] FCAFC 230 at [22]
Ground 3
Ground 3 claims that there was an “insufficient logical or evidentiary basis” for the Authority’s conclusions that the applicant was not a genuine Christian. In light of the ground it is appropriate to note certain well known principles.
First, the Court cannot review the merits of the Authority’s decision.[24]
[24] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272
Secondly, there is as a general principle no error of law if the Authority makes a wrong finding of fact.[25]
[25] Waterford v Commonwealth (1987) 163 CLR 54 at 77; Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303
Thirdly, to demonstrate relevant legal illogical or irrationality in the Authority’s findings or conclusion, “extreme” illogicality must be shown.[26] “Emphatic disagreement” with the Tribunal’s reasoning is not sufficient to make out illogicality.[27] If reasonable minds could differ about the assessment of evidence, that assessment cannot be said to be illogical or irrational.[28]
[26] CQG15 v Minister for Immigration (2016) 253 FCR 496 at [59]-[61]; DAO16 v Minister for Immigration (2018) 258 FCR 175 at [30]
[27] Minister for Immigration v SZMDS (2010) 240 CLR 611 at [124]
[28] SZMDS at [131]
The ground simply repeats the Authority’s findings at [33] without identifying or explaining what “extreme” illogicality in the Authority’s reasons is alleged. The ground does not rise above a bare assertion of illogicality and so fails.
Ground 4
Ground 4 claims the Authority misapplied s.5J(3)(i)[29] at [33] by failing to ask whether the applicant would be forced to modify his religious beliefs or political opinions, or implicitly finding that he could or should. As the Authority did not find that the applicant could avoid harm by altering his religious beliefs, then s.5J(3) has no application. On the Authority’s findings the applicant was not a genuine Christian convert as he claimed and had no commitment to practising Christianity in Iran. This ground fails.
[29] presumably s.5J(3)(c)(i) is intended
Ground 5
Ground 5 claims that the Authority failed to distinguish the application of s.5J(6) to the applicant’s complementary protection claims. The ground is predicated on an assumption that the Authority disregarded the applicant’s claimed Christian practice in Australia pursuant to s.5J(6) at [33]. However the Authority makes no such finding (unlike at [43] concerning the applicant’s Facebook posts and joining the National Council of Iran in Australia), so this ground also fails.
Conclusion
The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 4 February 2020
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