FKH18 v Minister for Home Affairs

[2020] FCCA 2149

FEDERAL CIRCUIT COURT OF AUSTRALIA

FKH18 v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 2149

Catchwords:
MIGRATION – Application for judicial review – Immigration Assessment Authority – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth).

Applicant: FKH18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: LNG 79 of 2018

Judgment of: Judge Riethmuller

Hearing date: 6 May 2020

Date of Last Submission: 6 May 2020

Delivered at: Melbourne

Delivered on: 4 August 2020

REPRESENTATION

Counsel for the Applicant: Mr Barns

Solicitors for the Applicant: Refugee Legal Service Tas Inc

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

LNG 79 of 2018

FKH18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. The applicant is a national of Iran who arrived in Australia as an unauthorised maritime arrival in July 2013. He applied for a Class XE (Subclass 790) Safe Haven Enterprise Visa in July 2017. The applicant was assisted by a migration agent in making his visa application. A delegate for the Minister refused to grant the visa to the applicant on 8 January 2018, following which, the matter was referred to the Immigration Assessment Authority (the ‘IAA’) for review. On 14 September 2018 the IAA affirmed the decision of the delegate not to grant the applicant a protection visa.

2. At his entry interview, the applicant said the main reason he left Iran was due to the lack of economic opportunity. The applicant also said that he left because of the political and social situation, poverty and unemployment. The applicant said that he had become unemployed after his work-life had been made difficult because he would not become a member of the Basij. The applicant said that he came to Australia to find a job and be comfortable and live a better life. 

3. In his written statements, the applicant explained that he had worked at an atomic energy organisation in Iran and left on the advice of a colleague after having been searched by security guards who found a USB device on him which contained classified information about current projects. The applicant’s colleague said that the USB device would be reviewed by the authorities and that if they found any current project documentation on the USB device, that the applicant would be persecuted. His colleague, the applicant said, suggested that he should go into hiding and leave Iran as soon as possible.

4. The applicant said he contacted a smuggler the next day, called in sick to work and booked a return flight to Indonesia. At the airport the applicant said he was going on holiday and he was permitted to board the plane, where he flew to Dubai and then took a connecting flight to Indonesia. From Indonesia, the applicant made two attempts to reach Australia by boat, both of which were unsuccessful, because the boats had to turn back.  On the third occasion, he was on a boat that was taking water after nine days at sea and was rescued by the Australian Navy and taken to Darwin in July 2013.

5. The substance of the applicant’s claim relates to concerns of persecution because of what occurred in his workplace. The IAA notes (at paragraph [9] of the decision), that the applicant had a friend in Iran email him copies of examples of the information that were said to be on the USB stick, which he apparently had on a hard drive and that he had left with his brother. The IAA noted that the delegate thought that the documents provided “seemed fairly basic”, and the applicant said that he had only limited access to information and that he would pick from this information material that would assist him in his university projects, which did not need to be sophisticated. The applicant said he had also asked his friend to choose the more basic files to send by email as a matter of caution.

6. Other difficulties confronted the applicant in the hearing process with respect to his version of events, as are accounted for by the IAA: see paragraphs [11] and [12] of the decision. The IAA accepted that the applicant had been affected by depression which would impact upon his capacity to remember things clearly, but was not persuaded that the applicant’s depression had caused him memory problems:  see paragraph [13] of the decision. 

7. The IAA considered the reasons the applicant gave for inconsistencies between his initial interview and written statement: see paragraph [14] and following, in the decision. At paragraph [18] the IAA noted the doubts that arose as a result of him not mentioning fearing harm as a result of having the energy company files on a USB stick when he was interviewed initially. 

8. Ultimately, the IAA did not accept that the applicant was employed by the energy company or one of its subsidiaries at the time of his departure, nor that he would need permission from the energy organisation to depart Iran, leading to a finding that he departed Iran legally: see paragraph [18] of the decision. The IAA then considered the data disclosure that occurred at the Department in 2014 and accepted that the applicant was named in the data that was inadvertently disclosed: see paragraph [19] of the decision.

9. The IAA dealt with the applicant’s claims to have converted to Christianity in some length and ultimately found that it was not satisfied that he had made a genuine conversion to Christianity or abandoned his belief in Shia Islam: see paragraph [26] of the decision.

Grounds for Judicial Review

1. The applicant did not press ground 1 in his original application and the Amended Application filed on 16 October 2019 only contained ground 2. 

2. Ground 2 is set out in the following terms:

   2. The second respondent asked itself the wrong question about harm if the applicant returned to Iran and therefore fell into jurisdictional error.

   Particulars

   The Second Respondent relied on the Applicant's claim that he did not feel his safety had been put at risk by publicly disclosing on Facebook that he is in Australia, when the Second Respondent should have focussed on the impact of Iranian authorities knowing that the Applicant was not in Iran and was residing in Australia; the impact of Facebook posts written by the Applicant on the Applicant’s claim.

   FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 310 ALR 1: asking the wrong question or taking into account matters which are irrelevant are errors that requires the impugned decision to be set aside. See also Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30).

3. The applicant argued that, the IAA, when considering whether or not the applicant felt his safety had been put in risk (by him disclosing on Facebook that he was in Australia), the IAA diverted from the task of considering whether or not, if he were to return to Iran, the applicant would be at risk as a result of Iranian authorities becoming aware that he was residing in Australia. At paragraph [17] of the applicant’s Outline filed on 16 October 2019, his case is put on the basis that the IAA:

   …only asked how the Facebook page acted to discredit the Applicant’s claim.  It asked itself the wrong question about any assessment of harm and so fell into jurisdictional error.

4. The argument is further developed (at paragraph [18] of the decision) that under the complementary protection provisions, the IAA only considered the applicant’s claims with respect to lack of religion and imputed political opinion as a failed asylum seeker; that it did not consider the impact of the applicant’s Facebook page.

5. The relevant passages of the IAA decision require careful consideration.  The IAA considered the impact of being returned to Iran as a failed asylum seeker (at paragraph [31] of the decision), saying:

   31. Amnesty International has reported that failed asylum seekers risk arrest if returned to Iran, particularly if forcibly returned, where their asylum application is known to the authorities; noting that in 2011 an Iranian judge was reported to have said that asylum seekers are interrogated on return, whether or not they have been political activists. However, from broader reporting it is not evident that seeking asylum, or specifically seeking asylum in a western country, or this in combination with being forcibly returned, will result in a person being of adverse interest to the Iranian authorities. DFAT has advised that strong anecdotal evidence suggests that officials do not attempt to prosecute a voluntary returnee because most failed asylum seekers leave Iran legally. From observation at airports a voluntary returnee (complete with IOM bags) does not attract much interest from the Iranian authorities amongst the large regular international movements of Iranians. Credible sources have told DFAT that returnees will generally move quickly through airports without official interest, and questioning will usually only occur where the returnee has done something specific to attract the specific attention of authorities, irrespective of whether a returnee is travelling on a temporary travel document or their ordinary passport. Iran says it does not accept involuntary returnees. However, in practice, border authorities regularly accept Iranians with valid Iranian travel documents returned involuntarily or even those without documentation if persuaded they are lranian. [FN: DFAT, “DFAT Country Information Report: Iran”, 21 April 2016, CIS38A8012677.] DFAT's reporting gives no indication that such involuntary returnees are treated any differently. I note, moreover, that from reported instances of returnees experiencing adverse attention from the Iranian authorities upon return (beyond those wanted for non-political criminal offences) it is plain what has been determinative of adverse treatment has not been the fact that the person was a failed asylum seeker, or a returnee from the west, or that he or she had been forcibly returned, but rather that these person had actively sought to challenge the Iranian regime in some way (the case of Rahim Rostami being illustrative in this regard, as are those of Kurdish activists). [FN omitted]

6. Following this, the IAA turned to consider the particular claims in this case (at paragraphs [32] to [33] of the decision), saying:

   33. I consider that the applicant was speaking honestly at his induction interview when he was critical of the Iranian authorities. Upon return to Iran he may express such views in day-today personal conversations. This, however, would not amount to the kind of act which can result a person's being seen as challenging the Iranian regime; and DFAT has observed that the Iranian government may be criticised robustly in such day-to-day personal conversations without raising a risk of adverse attention. [FN: 7 DFAT, “DFAT Country Information Report: Iran”, 21 April 2016, CIS38A8012677.] I accept that the applicant does not wish to join the Basij and would not do so upon return to Iran, and that he believes he lost his job at [the energy company] in 2012 because he would not join the Basij, and that he believes the reason he thereafter struggled to find permanent employment was because he was not a member of the Basij and had no such connections. Nevertheless, the evidence before me does not indicate that persons without such · connections, and/or who are critical of the Iranian government in day-to-day conversation, are perceived as being opponents of the regime, or that on this basis the applicant would face a real chance of suffering discrimination or harm of any other kind in the workplace or in any other circumstance in the future.

7. This led to the conclusion (at paragraph [34] of the decision) that the IAA was not satisfied that the applicant:

   [If]…returned to Iran (whether voluntarily or involuntarily), faced a real chance of harm of any kind from any actor for reason of his having lived and sought asylum, in Australia, a western country and/or for reason of his having worked for [the energy company] over 2007 to 2012.

8. The IAA relied upon its reasons with respect to the refugee claim when considering the complementary protection assessment: see paragraph [38] of the decision.

9. The IAA concluded that the applicant would not face a real chance of any harm of any kind if he were returned to Iran. The IAA then went on to consider, in some detail, the question of religion, which is not an issue on this judicial review proceedings.

10. The course of reasoning of the IAA (at paragraph [32] of the decision) is that:

    a)merely being a failed asylum seeker in the west does not give rise to a real chance of suffering harm of any kind on return to Iran;

    b)whilst it was accepted that the applicant worked for the energy organisation, it was not accepted that he was a scientist or senior figure or that there had been any action taken against others as a result of seeking asylum in a western country; and

    c)the applicant had publicly disclosed his presence in Australia on a Facebook page, indicating that he was not fearful of the consequences of the Iranian authorities discovering that he was in Australia if he were forced to return.

11. These findings must be taken in the context of the IAAs earlier findings (at paragraph [30] of the decision), rejecting the applicant’s claims that he had removed documents on a USB device from his employer. At paragraph [30] of the decision, the IAA had said:

    30. The applicant claims to fear that because the Iranian authorities believe that he has attempted to exit an AEOI facility with a USB device containing files for several current AEOI projects, and because he was an employee of an AEOI subsidiary and required the permission of the AEOI to depart Iran but departed without obtaining this permission, and because in such circumstances he has now sought asylum in Australia, he will be considered to have acted against the national security. of Iran, and if he returns to Iran the Iranian authorities will, for this reason, persecute him and charge him with spying for the governments of other countries such as Israel and the United States, and that he will on this basis be investigated, interrogated, tortured, imprisoned, and executed. l do not accept that the applicant ever removed AEOI files on a USB device in an unauthorised manner, or that Iranian officials have been making enquiries about the applicant's whereabouts or making threats against him in this regard, and so I am not satisfied he would face a real chance of harm on this basis. I do not accept the applicant was employed by an AEOI subsidiary at the time he departed Iran, and I am not persuaded that a former low level … employee would have been required to obtain the permission of the AEOI to travel abroad, and so I am not satisfied he would face a real chance of harm if he returned to Iran on this basis either.

12. Thus, at the point in the reasons where the IAA was considering the applicant’s return to Iran, it was in the context of an applicant who, on the findings:

    a)had not taken documents on a USB stick from the energy organisation,

    b)had not been a high-level employee or a scientist, and

    c)had not been working for the organisation at the time that he left Iraq. 

    A fair reading of paragraph [32] of the decision indicates that the IAA considered the overall risk of harm to the applicant returning to Iran, in the context of his particular circumstances and in light of the findings at paragraph [30] of the decision. 

13. In substance, the IAA had concluded that there was generally no real risk to asylum seekers returning to Iran and that the matters that the applicant had raised were peculiar to his circumstances and did not give rise to a finding that he would be at risk if he were to return to Iran. A similar process of reasoning occurs (at paragraph [33] of the decision) where the IAA also considers this question in the context of the applicant having some criticisms of the Iranian government and not wishing to join Basij: see the quotation of paragraph [33] set out above).

Conclusion

1. In the circumstances, I am not persuaded that the applicant has established a ground for judicial review in the context of this case and I must, therefore, refuse the application. 

Costs

1. It was agreed between the parties at the hearing that costs should follow the event of the scale fee of $7,467. I therefore order the applicant to pay the first respondent’s costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate:

Date: 5 August 2020