FOO17 v Minister for Immigration

[2018] FCCA 1806

FEDERAL CIRCUIT COURT OF AUSTRALIA

FOO17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1806

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment Authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment Authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth):s.5J(3)

First Applicant: FOO17

Second Applicant: FOS17

Third Applicant: FOT17

Fourth Applicant: FOU17

First Respondent:  MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:   IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 1253 of 2017

Judgment of: Judge Vasta

Hearing date: 29 June 2018

Date of Last Submission: 29 June 2018

Delivered at: Brisbane

Delivered on: 29 June 2018

REPRESENTATION

Counsel for the Applicants: Mr S.D. McCarthy

Solicitors for the Applicants: Holding Redlich

Counsel for the First Respondent: Ms S. Forder

Solicitors for the Second Respondent: Clayton Utz

ORDERS

1. That the Applications filed 18 December 2017 and 18 April 2018 be dismissed.

2. That the Applicants pay costs to the First Respondent fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1253 of 2017

FOO17

First Applicant

FOS17

Second Applicant

FOT17

Third Applicant

FOU17

Fourth Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY 

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 30 October 2017, the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant FOO17 and the other Applicants protection visas.  FOO17, his wife and two children had come to this country by boat after leaving Iran legally.  They arrived in the country in 2012 and have since made applications for Safe Haven Enterprise Visas.

2. The Applicants made the initial application, were invited to an interview with the delegate, made further statements before the interview, were interviewed and then made post-interview statements as well as submissions to the delegate.  The delegate, having made a decision that was a fast track decision, decided not to grant to the protection visas.  The matter was automatically then referred to the IAA which, as I have said, has affirmed the delegate’s decision.

3. The facts in short compass are that the Applicants are Ahwazi Arabs from Kurdistan in Iran.  The First Applicant claims that they have been discriminated against by the Iranian government because of their ethnicity.  The Applicant wife had talked about not being able to continue her education because the Iranian government did not provide their area with sufficient schools.

4. The central claim, that the Applicants make, revolves around a decision by the Iranian National Oil Company to, in effect, come onto their farming land and use it to drill for oil.  The Applicants have claimed that this was an illegal attempt to confiscate the land.

5. From October 2009 until around June 2012, there had been, in effect, an ongoing struggle between the Applicant and the authorities.  What was claimed by the Applicants is that there was no real intention by the oil company to drill on the land, that it was just an excuse perpetrated by government to take the land and depopulate the area of Arabs.  There was resistance by the Applicant to this.

6. About 13 months later in November 2010, he claimed that armed men from the Iranian secret services entered the house at midnight and started beating the husband and took him away for about a month where he was interrogated and tortured.

7. In about March 2012, the government authorities returned to the land and started to build a wall that would pass right through the house.  The husband and the husband’s brothers fought with these persons, but subsequently claim that they went into hiding and did not return home.  And because the situation was not getting any better, the family decided to leave Iran in June 2012. 

8. Having legally left the country, they found their way to a people smuggler who put them on a boat which was intercepted and taken to Christmas Island.

9. The claim by the Applicant is they will be harmed by the Iranian authorities if they return to the area that the authorities wanted them to depopulate.  And there was also a claim that they did not want their sons to complete military service, and that they fear being arrested and interrogated for leaving Iran and seeking asylum in Australia, and they would be targeted when they return on suspicion they may be spies or working for foreign governments.

10. The IAA went through the claims.  In effect, the IAA accepted, because of the consistency of the claims by the Applicant, the wife and the country information, that the oil company in effect did try to and successfully did confiscate the land from them.

11. The IAA found that they were not given adequate compensation, in fact they were not given compensation at all, and this is backed up by quite a bit of country information.  There was an acceptance of the group of armed men coming to the house in November 2010, and that the husband was taken away, and that he had to sign a statement before he was released, which could have been up to a month later.

12. However, the IAA did not accept that after this, in March 2012, that the husband was deliberately going into hiding after altercations with the government authorities about the building of the wall, and so on.

13. The IAA did speak quite a bit about the inconsistency of the evidence from both the husband and the wife about these claims after the initial, as it were, skirmish, and these are articulated in paragraphs 19 and 20 of the reasons.

14. The IAA did not accept that there was in effect ongoing conflict, that the other members of the family had actually left, but they were still living in the greater area, but not on the land which had now been confiscated.  The IAA was not satisfied that the confiscation related solely to some form of government edict, that the minority ethnicity of Ahwazi Arabs needed to be depopulated from that area.

15. In effect, the IAA came to a finding that having left the area, there would now be no ongoing reason for the Applicants to have any fear of the government, and that there was no real chance of persecution, nor of serious harm upon return. 

16. The IAA looked at what would happen to the Applicants upon return, notwithstanding that they were failed asylum seekers, and found that there was no real chance of serious harm, and also made a similar finding with regard to the children’s military service.

17. The ground of review that is pressed here is a fairly concise one.  It revolves around what the IAA has said in paragraphs 26 and 28 of their reasons.  Paragraph 26 reads this:

    26. When the delegate asked the husband applicant why the government would want anything to do with him if they now have his land, he responded that they took the land and he has nothing left there.  In his supplementary statement, he claimed that he has a deep bond to his land, it is central to his identity as an Ahwazi Arab, he grew up on the land and feels deeply connected to it.  It is deeply angering to him that the land has now been confiscated from them without compensation.  A post-interview written submission claimed that the husband applicant's land was owned by his grandfather, and accordingly in the Arab cultural system, the land loss was of ancestral and cultural significance.  It is not merely a loss of asset, but a personal sense of loss and disconnect with their indigenous heritage. I am willing to accept that the applicant was deeply angered by the land confiscation and the fact they received no compensation and it was of ancestral significance.  I note the Applicant did leave the land when his extended family chose to stay, and I am not satisfied that he left at the time that he did out of fear from the oil company or the Iranian authorities. His family now have also left the land and I am not satisfied on the evidence his family has continued to try to re-acquire the land, and have not accepted that they are living in hiding due to a continued fear of the sect working on their land or the Iranian government.  I am not satisfied the husband applicant is of any further ongoing adverse interest to the Iranian authorities, or the oil company since he left the country and they have confiscated the land, or that he will seek to re-engage with the authorities about repossessing the land not out of fear of persecution, but rather due to their acceptance of what has occurred

    …

    28. I accept that the applicant husband felt deeply aggrieved as a result of the confiscation of his family's land.  I accept that it was not merely a loss of an asset but that he felt deeply connected to the land, and that in the Arab cultural system, it was of ancestral and cultural significance.  However the applicant has provided no further evidence about this and on the evidence before me I am not satisfied that this amounts to serious harm in this case, nor that this past cultural loss gives rise to a real chance of serious harm.

18. The grounds of this application were these, even though there was two grounds, it really was rolled up as one. 

    1. The Immigration Assessment Authority (IAA) committed a jurisdictional error in assessing under s 5J of the Migration Act 1958 (Cth) (Act) whether the Applicants have a well-founded fear of persecution because it failed to take into account relevant considerations.

    Particulars

    (a) The IAA found the Applicants would not seek to re-engage with authorities in relation to the confiscation of their land, and were of no ongoing interest to the relevant authorities (reasons[26];[29] in circumstances where, contrary to s 5J(3)(a) of the Act, the IAA failed to consider the following relevant considerations:

    (i) that the Applicant’s had a deep ancestral bond or connection to the land;

    (ii) that the land was central to the Applicants’ cultural identity as Ahwazi Arabs.

    2. The IAA committed a jurisdictional error in assessing under s 5J of the Act whether the Applicants have a well-founded fear of persecution because it took into account an irrelevant consideration.

19. As was conceded by Ms McCarthy, who eloquently put the argument to the Court, this really is one particular ground.  It really boils down to this; that, whilst the IAA has accepted that the loss of the land was not merely the loss of an asset, but there was a deep connection to the land, and in the Arab cultural system it was of an ancestral and cultural significance, the state of “non-satisfaction” by the IAA that the Applicant would not seek to re-engage with the authorities about repossessing the land, not out of fear of persecution, but rather due to their acceptance of what has occurred, really means that the Applicants have modified their behaviour in regard to a fundamental characteristic.

20. If one looks at the legislation, s.5J(3) reads:

    (3) A person does not have a well‑founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)conflict with a characteristic that is fundamental to the person’s identity or conscience; …

21. It is submitted that this deep attachment to the land is actually a characteristic that is fundamental to the person's identity or conscience.  It is submitted that the acceptance of the government confiscation is a modification of behaviour, as that term would be understood in s.5J(3)(a).  It is submitted, then, that the jurisdictional error was a failure by the IAA to consider whether that modification conflicts with the finding that the IAA has made in paragraph 28.

22. One has to look, then, at the history of this claim.  The Applicants made their initial applications upon coming to Australia and being intercepted and taken to Christmas Island.  At that time, there was no claim as to a desire to re-engage with the government to repossess the land, or to re-engage with the authorities to get the land back.

23. There was never a claim then made at any of the subsequent stages of the application that the Applicants wanted to re-engage, or would be seeking to re-engage, or were needing to re-engage, because of the significance of their connection to the land that they would have no other option but to go there and to re-engage to try and get that land back.  That was never a claim that was made by the Applicants, and it was certainly nothing that the IAA had to look at.  Therefore the IAA was never looking at whether such an innate aspect of their character would have to be modified if the Applicants were to be relocated to Iran.

24. The Applicants did not actually even voice this aspect of the claim until the post-interview submission.  As was pointed out to the Court, in that post-interview submission at Court book 293, at paragraph 4 the Applicant said:

    4. My grandfather held a large block of around 40 hectares.  There was a large portion of this block that was destroyed by dumping chemicals and could not be worked.  He distributed the land to each member of our family but I understand he still held the paperwork (which is understand is termed the title deed) to the land and it was still in his name.  My brothers and paternal uncle all worked the land surrounding my land. 

    5. My grandfather was the first of our family to hold the land.  Previously it was held by an Arab family during the time of the Shah.  After the coup the family left and my grandfather who was working on the land as a hired hand was given the land. 

    6. I say that I have a deep bond to the land, it is central to my identity as an Ahvazi Arab.  I grew up on the land and I feel deeply connected to it.  It is deeply angering to me that the land has now been confiscated from us without compensation. 

    7. All of the relatives that were working our grandfather’s land have all escaped.  They are now all afraid to go near the land.

25. That was the evidence of the Applicant post-interview with the delegate that lead to the statements that the IAA made at paragraphs 26 and 28 of the reasons.

26. It seems, then, when one looks at the matter, that whilst the Applicant was very much angered, before the Applicant left Iran, he had accepted the confiscation, albeit with quite some anger and with quite some bitterness, but had not sought to re-engage the authorities.

27. It seems to me, then, that this aspect that the Applicants would seek to re-engage or try to re-engage was not a claim that was actually before the IAA for them to look at.  But the IAA had actually made the finding, which I will repeat, that they were not satisfied that the Applicant husband was of any further ongoing adverse interest to the Iranian authorities or the oil company since he left the country and the land had been confiscated.

28. The IAA was not satisfied that the Applicant husband would seek to re-engage with the authorities about repossessing the land, not out of fear of persecution, but rather due to the acceptance of what has occurred.

29. Therefore, it is not a matter of having to modify behaviour.  It is not a case of there needing to be some change to the way that the Applicant would act if he were taken back to Iran.  For those reasons, I am not satisfied that there has been a jurisdictional error in this matter.

30. This, then, leads to the next aspect that I must look at, and that is that the decision by the IAA was made on 30 October 2017.  The application for review had to be made by 4 December 2017.  It was filed two weeks later.  There has been an explanation by the Applicant as to why it had taken so long, but that explanation is not particularly compelling.

31. The Court must decide whether or not it will allow the application to extend the time in which to file the matter by 14 days.  There are three aspects to this that I look at, number one what is the reason for the delay, number two what prejudice is there to the Respondent, and number three is there an arguable case that should be considered by the Court? 

32. I have really already dealt with the third aspect of that matter in finding as I have that there has been no jurisdictional error.  I have looked at the explanation proffered as to the reason for the delay, and whilst it may be possible to feel some sympathy that the Applicant, as it were, did not know what it was that he should do, it is quite plain on what it is that he has said in the affidavit that his migration agent had said that he cannot help anymore.

33. I also note that this aspect of the current grounds of the application are grounds from an amended originating application which was filed on 18 April 2018.  The original grounds were that the IAA and delegate for the Minister of Immigration and Border Protection erred in law in making his decision.  That being the initial ground of application, it is really quite bewildering why it would take two weeks longer than what would or should have been the case to file an application that was as bland and gave no particulars or details such as the one that was originally filed.

34. In all of the circumstances, I am not satisfied that I should exercise the discretion to allow for the extension of time. 

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 23 October 2018