FSP18 v Minister for Immigration - [2020] FCCA 939

FEDERAL CIRCUIT COURT OF AUSTRALIA

FSP18 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 939

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise Visa – whether the Authority misapplied and conflated the considerations under refugee criterion – whether the Authority misinterpreted, misunderstood or misapplied the applicable law regarding the applicant’s claims – whether the Authority was affected by jurisdictional error – no jurisdictional error made out – application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J

Cases cited:

DVG16 v Minister for Immigration and Anor [2018] FCCA 1461

SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013]

FCA 774

Applicant:

FSP18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 3050 of 2018

Judgment of:

Judge Humphreys

Hearing date:

03 April 2020

Date of Last Submission:

03 April 2020

Delivered at:

Parramatta

Delivered on:

1 May 2020

REPRESENTATION

Solicitors for the Applicant:

Mr Ehsani, Barriston Lawyers

Counsel for the Respondents:

Mr Johnson

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The Court notes that the Further Amended Application filed with the Court on 24 March 2020, which contained three additional final orders, is withdrawn and the matter will now proceed only in relation to what is ground one of the original application.
Leave to rely upon the Further Amended Application filed 24 March 2020 is refused.
The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application is dismissed.
The Applicant to pay the First Respondent’s costs fixed in the amount of $20,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 3050 of 2018

FSP18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of Iran. The applicant first arrived in Australia on 17 April 2013 as an unauthorised maritime arrival. On 21 September 2016, the applicant applied for a Safe Haven Enterprise Visa. On 13 December 2017, a delegate of the Minister for Immigration and Border Protection (“the delegate”) refused to grant the visa.
The applicant sought merits review at the Immigration Assessment Authority (“the Authority”). In a decision dated 24 September 2018, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.
The applicant now seeks judicial review in this Court, of the Authority’s decision.

History before the Court

This matter has had a somewhat troubled history before the Court, which is appropriate to recite. The original application for review was lodged with the Court on 29 October 2018. The matter was fixed for Hearing on 18 December 2019. On 18 December, on the application of the applicant, the matter was adjourned for Hearing to 13 February 2020.
Orders were made on 13 February 2020 for the filing and serving of submissions. These Orders were not complied with by the applicant’s legal representatives. The solicitor for the applicant, in an affidavit dated 13 February 2020, indicated that his father had passed away a few days earlier. Counsel for the applicant, was apparently called away for an urgent matter in Canberra the previous week, from 2 February 2020 until 8 February 2020 and had been in Court every day until 13 February 2020.
Submissions from Counsel for the applicant, which ran to some 35 pages, were provided to the first respondent’s Counsel in Court, at the commencement of the Hearing. The Court notes here that there is a usual 10 page restriction on the size of written submissions to be filed to the Court. This requirement was not complied with.
It was apparent from the submissions that were filed on behalf of the applicant, of the potential for constitutional issues to arise in the matter. Accordingly, the matter was adjourned until 3 April 2020 for Hearing. Directions were made on 13 February 2020 that the applicant was to file and serve section 78B notices within 14 days. The applicant was also to file and serve any amended written submissions by 27 February 2020.
At the request of the first respondent, the matter was relisted for a Directions Hearing on 10 March 2020. Counsel for the applicant did not appear however, his instructing solicitor did appear. At that Hearing, it was noted that written submissions have not been filed by on behalf of the applicant and the section 78B notices had not issued. The solicitor for the applicant withdrew the second ground of appeal contained in an amended application that had been filed in Court on 2 April 2019 and on that basis, there was no further requirement for section 78B notices to be issued.
The solicitor of applicant confirmed that the matter would only proceed in relation to a single claim that the Authority misapplied or conflated the considerations under the refugee criterion, regarding the applicant’s claim to apostasy in his relationship with a Chinese Buddhist woman. The Hearing date of 3 April 2020 was confirmed.

Further Amended Application

On 24 March 2020, a further amended application was filed with the Court. Contained within that application, were new final orders sought by the applicant. They are as follows:
1.   Relief in the form of a Declaration, that the applicant was not a “UMA” as defined in section 5AA the Migration Act 1958 (Cth).
2.   Relief in the form of a Declaration that 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. The applicant was not a “fast track” applicant as defined in section 5 of the Migration Act 1958 (Cth) and that the decision by the delegate to the Minister made on 13 December 2017 pursuant to section 66 of the Migration Act 1958 (Cth) was beyond power.
3.   Relief in the nature of Damages for false imprisonment and for placing restrictions on the liberty of the applicant by restraining his rights, freedoms and entitlements, which are not ordinarily imposed on members of the public.
Counsel for the First Respondent noted that these documents were not served on the Minister and were instead discovered by the First Respondent’s solicitor, while accessing the Commonwealth Courts portal website for this matter. No adequate explanation has been given as to why the further amended application was not served on the first respondent’s solicitors.
Counsel for the First Respondent submits the following, in relation to the further amended application, verbatim:
a)Ground 2 has been removed. That is appropriate, given the withdrawal of that ground at the directions hearing held on 10 March 2020.
b)The Applicant appears to seek two new declarations, being those contained in Orders 1 and 2 under the heading “Final orders sought by the Applicant” and drafted with underlining (page 2). These declarations concern whether the Applicant is an unauthorised maritime arrival and whether a port at Christmas Island was properly appointed as a port. The declarations are only relevant to ground two. In circumstances where that ground has been withdrawn, there is no basis upon which the Applicant could possibly be entitled to the relief sought in Orders 1 and 2. Accordingly, this amendment should not be permitted.
c)The Applicant also appears to seek “damages”, said to be for “false imprisonment and for placing restrictions on the liberty of the applicant by restraining his rights, freedoms and entitlements, which are not ordinarily imposed on members of the public”. There is no ground of review, or other pleading, in the Amended Application that alleges false imprisonment, or otherwise sets out the factual basis on which this claim for damages is made. Accordingly, there is no basis on which such relief could possibly be granted to the applicant. The amendment should also not be permitted.
Given the history of the matter, the inclusion of these new declarations and the order for relief in the nature of damages is somewhat surprising. Grounded two in the original application argued that the Authority’s decision was vitiated by jurisdictional error, as the applicant was not an “authorised maritime arrival” as the port on Christmas Island was not a properly proclaimed port under the Migration Amendment Act (No 2) 1980 (Cth). This is the ground that was expressly abandoned at the Directions Hearing held on 10 March 2020. The two new declarations being sought, appear to expressly seek to reopen the arguments put forward in the ground which was abandoned.
In the circumstances of this case, given its history and the various failures by both Counsel for the applicant and his instructing solicitor to comply with Court orders, regarding the filing and serving of relevant documents, the Court has determined that leave should not be granted to rely upon of the two new declarations.
In relation to the new ground of relief sought, being for damages, no relevant material, pleading or otherwise, has been filed to support the relief sought. To seek to raise such a matter at this very late stage, where it has never been previously raised, is very difficult to understand. Given that there was no supporting material in relation to such a matter, the Court has determined that leave to rely on the amended application in this regard, also be refused.
Counsel for the applicant did not appear at the hearing on 3 April 2020. The applicant’s instructing solicitor advised the Court that, as he understood the situation, Counsel was in the Northern Territory. Counsel for the applicant was not answering emails or taking telephone calls. The hearing was conducted by telephone due to the restrictions in force with the current COVID-19 virus. The Court does not consider the reason for Counsel’s non- attendance as satisfactory. It is discourteous to the Court at the very least.
Considerable additional time and consideration has been necessary by both the first respondent and the Court to consider and deal with the various amended applications, which have then been abandoned at the last minute. This additional time has been wasted. Orders made by the Court for the filing of documents or the taking of certain actions, such as the issue of section 78B notices, have not been complied with. Due to the raising of possible constitutional issues, it has been necessary for the first respondent to change solicitors to the Australian Government Solicitors. All of this additional work has been for nothing.

The Immigration Assessment Authority’s Decision

At paragraph 8 of its decision, the Authority sets out the applicant’s claims. It can be summarised as follows:
·   The applicant is an Iranian citizen. The applicant’s family are secular nominal Shia Muslims but he has no faith in Islam and does not follow any religion.
·   In Iran, the applicant suffered numerous episodes of physical assault at the hands of the Iranian security authorities, participated in three street protests in relation to an election and was arrested on one occasion when he was with his former girlfriend.
·   Since the applicant’s arrival in Australia, he joined the Iranian National Council and participated in protests in front of the Iranian Embassy in Canberra.
·   In approximately mid-2017, a customer of the applicant’s hairdressing salon in Canberra, told him that the Iranian Embassy knew he has participated in protests and his details have been given to Iran’s Intelligence Ministry.
·   The applicant has a Buddhist de facto partner of Chinese origin in Australia. If the applicant is forced to return to Iran, his Buddhist partner will not be able to travel safely to Iran and live with him. Being in a de facto relationship in Iran carries severe punishment.
·   The applicant also fears harm on return to Iran for his illegal entry in Australia and applying for protection.
At paragraph 10 of its decision, the Authority accepts as plausible, that the applicant’s family members are secular nominal Shia Muslims and that he does not believe in or follow any religion.
At paragraph 12 of its decision, the Authority rejects the applicant’s claim that he was required to serve additional time in the military due to religious non-observance. At paragraph 13 of its decision, the Authority rejects the applicant’s claims that he was always in trouble during Ramadan and Muharram with the authorities for not fasting.
At paragraph 14 of its decision, the Authority accepts that the applicant may have voted for an anti-regime candidate in the 2009 presidential elections and holds a political opinion against the Iranian regime. The Authority does not accept that the applicant participated in demonstrations in 2009.
Paragraphs 15 to 17 of the Authority’s decision deal with the applicant’s political activities in Australia. The Authority accepts that the applicant has attended some meetings of the Iranian National Council and attended two protests organised by this group, in front of the Iranian Embassy in Canberra. The Authority noted that the timing of these activities and was not satisfied that the applicant had engaged in the above activities in Australia, other than for the purpose of strengthening his claims to be a refugee.
At paragraph 18 of the Authority’s decision deals with the applicant’s Facebook posts in August 2017. The Authority again, finds that the applicant had not satisfied it that he posted this material, other than for the purposes of strengthening his claims to be a refugee.
Paragraphs 19 to 20 of the Authority’s decision deal with the alleged warning by an Iranian Embassy staff member. The Authority noted that after receiving this warning, the applicant claimed that the person who warned him is still his customer at his hair salon, as is the Iranian Ambassador. The Authority did not accept that the applicant was approached by a staff member and given the alleged warning. The Authority did not accept that the applicant would continue to provide barber services to the Embassy staff member or the Iranian Ambassador, following the receipt of the warning.
Paragraphs 22 to 26 of the Authority’s decision deals with minor offences and other claims relating to the applicant’s time in Iran, prior to coming to Australia. The Authority accepts that the applicant may have been held for a few hours following an occasion where he was detained with his former girlfriend. The Authority accepts the applicant’s claim that his car was searched and he was questioned about his dress, hair style and choice of music by Iranian authorities. The Authority accepts that the applicant may have drunk alcohol in Iran. The Authority was not satisfied that the applicant was physically assaulted by Iranian authorities on numerous occasions for reasons unknown to him.
At paragraph 34 and 35 of its decision, the Authority reviewed country information provided by Department of Foreign Affairs and Trade (“DFAT”) in 2018. The Authority notes that country information indicates that many Iranians do not attend mosque regularly and there are very few reports of Iranians being arrested for eating in public during Ramadan. The Authority was not satisfied that the applicant will promote his religious views in public in Iran and his lack of belief in Islam will not cause him to come to adverse attention of the authorities, because he will not engage in public manifestations of his Shia faith.
At paragraph 37 of its decision, the Authority deals with the issue of the applicant’s Chinese Buddhist partner. The applicant claimed that if forced to return to Iran, his Chinese Buddhist partner would not be able travel safely to Iran and live with him. The applicant claimed that being in a de facto relationship carries severe punishment under Iranian law. The applicant stated he cannot force his partner to convert to Islam and marry him under Islamic laws, as neither believe in Islam. The Authority noted there was no evidence before it to indicate in what manner the applicant’s partner would be able travel to Iran, to live with the applicant. The Authority finds that the possibility raised by the applicant to be too speculative. More importantly, if the applicant were to be separated from his partner as a result of his return to Iran, the Authority was not satisfied that this amounts to persecution for one of the five reason stated in s 5J(1) of the MigrationAct 1958 (Cth) (“the Act”).
In its conclusion, the Authority found that the applicant does not meet the requirements for refugee protection under s 5H(1) of the Act nor does he meet the complimentary protection requirements. The Authority accordingly affirmed the delegate’s decision.

Grounds of Appeal

The applicant’s remaining single ground of appeal is as follows:
The IAA misapplied and conflated the considerations under the refugee criterion regarding the applicant’s claims to apostasy and his relationship with a Chinese Buddhist woman with the considerations under the complimentary criterion.
The decision of the IAA was affected by jurisdictional error as the IAA misinterpreted, misunderstood or misapplied the applicable law regarding the applicant’s claims as an apostate and his relationship with the Chinese Buddhist woman under the refugee criterion at [37] of the decision record, with the considerations under complimentary criterion at [40] of the decision record.

Consideration

The applicant submits that the Authority misapplied and conflated the considerations under the refugee criterion regarding the applicant’s claims to apostasy and his relationship with a Chinese Buddhist woman, with the considerations under the complimentary criterion. It was submitted that the applicant made a claim of apostasy either in his own right or as part of his relationship with the Chinese Buddhist woman. The Authority identified the apostasy claim. That claim needed to be considered. In asserting that the applicant was squarely invoking Australia’s protection obligations, he was entitled to expect the Authority would squarely address the claim. It was not enough for the Authority to address the matter under the refugee criteria and then to simply apply it’s finding to the complimentary protection requirement. In making the apostasy claim, the applicant was asserting that he feared execution. The Authority failed to do so (consider this claim).
The First Respondent, in their written submissions, noted that this ground alleges the Authority either misinterpreted, misunderstood or misapplied the applicable law in relation to these claims. However, the particular way in which the Authority is alleged to have erred in the treatment of these claims, is not clearly explained. The Authority noted that the applicant was raised in a “secular nominal Shia Muslim family but does not believe in Islam or any other religion”.
The First Respondent notes that the Authority did consider these matters at paragraph 34 and 35 of its decision and stated specifically at paragraph 34:
I am not satisfied the applicant’s lack of belief in Islam will come to the adverse attention of the community or Iranian authorities in Iran because he will not engage in public manifestations of the Shia faith. I am not satisfied the applicant faces a real chance of harm in Iran from the Iranian authorities or community because of his religious views.
The Authority then went on to consider the impact of the applicant being forced to return to Iran with or without his partner. The Authority found if the applicant were to be separated from his partner, as a result of his return to Iran, it was not satisfied that this amounted to persecution for one of the five reasons set out in s 5J(1) of the Act. The Authority also noted that there was no evidence before it to indicate in what manner his partner would be able to travel to Iran to live with him. On the evidence before it, the Authority found this possibility to be too speculative.

At paragraph 50 of its decision, when dealing with the complimentary protection considerations, the Authority found that the applicant may be separated from his partner in Australia after he returns to Iran, but did not find that this amounted to significant harm.
The First Respondent asserts that the Authority was entitled to rely upon earlier findings in respect of the refugee criterion, in support of its findings relating to the complimentary protection criterion (see SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56] and [57] per Robertson J).
The Court is satisfied that the Authority did properly address the apostasy claim. At paragraph 35 of its decision, the Authority quoted country information which indicated that many Iranians do not attend mosque regularly and do not perform the daily prayers and, for this reason, not attending mosque would not necessarily arouse any suspicion. There are very few reports of Iranians being arrested for eating in public during Ramadan. The Authority concluded that it was not satisfied that the applicant faced a real chance of harm in Iran from Iranian authorities or community because of his religious views. The Authority further addressed the apostasy claim at paragraph 48 of its decision, when dealing with complimentary protection issues. This argument fails at a factual level.
The Court is satisfied that the Authority did not deal with the ‘apostasy’ claim obliquely. The error identified by Wilson J in DVG16 v Minister for Immigration and Anor [2018] FCCA 1461, does not apply in the circumstances of this case. The claim was dealt with clearly.
In relation to the applicant’s current de facto partner, the Authority found on the evidence before it, the possibility of his de facto returning to live with the applicant in Iran was “too speculative”. The Court is satisfied that, when read in context, this amounted to a non-acceptance by the Authority that the de facto would in fact return to Iran with the applicant. It was for this reason that the Authority went on to consider whether or not a separation from his de facto would amount to a matter requiring protection under the refugee criterion. The Authority found it did not.
While the separation of the applicant from his de facto may be seen as harsh if he is returned to Iran, that itself is not a ground constituting jurisdictional error. Accordingly, the Court is not satisfied that there is any conflation between the two aspects of the apostasy claim and the ground of appeal fails.

Conclusion

Accordingly, the application is dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:

Date: 1 May 2020