FSQ18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 383
•30 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FSQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 383
File number(s): ADG 443 of 2018 Judgment of: JUDGE LUCEV Date of judgment: 30 April 2024 Catchwords: MIGRATION – Judicial review application – review of decision of Immigration Assessment Authority – single unparticularised ground of review – whether jurisdictional error otherwise - whether material jurisdictional error Legislation: Migration Act 1958 (Cth), ss 5H, 5J, 36, 473DD, 474, 476 Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439; (2020) 94 ALJR 928; (2020) 383 ALR 407
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
DKN20v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248.
Minister for Immigration and Citizenship v SZQHH and Another [2012] FCAFC 45; (2012) 200 FCR 223; (2012) 287 ALR 523; (2012) 125 ALD 481
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590
NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCASL 218
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; (1994) 35 ALD 1; (1994) 124 ALR 265
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 18 Date of last submission/s: 13 February 2024 Date of hearing: 13 February 2024 Place: Perth Applicant: In person (with the assistance of an interpreter) Counsel for the First Respondent: Ms M Pappas Solicitor for the Respondents: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 443 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FSQ18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
30 APRIL 2024
THE COURT ORDERS THAT:
1.The originating application filed 30 October 2018 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
Before the Court is an application for judicial review (“Judicial Review Application”) filed in the Adelaide Registry of the Court (then the Federal Circuit Court) on 30 October 2018. The Judicial Review Application seeks review of a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) made on 11 October 2018. The Authority Decision affirmed an earlier decision of a delegate (“Delegate’s Decision” and “Delegate”) of the first respondent, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), to refuse to grant the applicant, FSQ18, a Safe Haven Enterprise visa (“SHE Visa”).
The Judicial Review Application is brought pursuant to s 476(1) of the Migration Act 1958 (Cth) (“Migration Act”).
The Court Book (“CB”) was marked as Exhibit 1 in the proceedings.
BACKGROUND
The background to the matter prior to the Authority Decision is as follows:
(a)FSQ18 is a male Iranian citizen of Bakhtiari ethnicity: CB 188;
(b)FSQ18 arrived on Christmas Island on 14 July 2013 as an unauthorised maritime arrival: CB 187;
(c)on 14 February 2017 FSQ18 applied for the SHE Visa with the assistance of a migration agent: CB 40;
(d)on 25 January 2018 the Delegate’s Decision was to refuse to grant FSQ18 the SHE Visa: CB 187-211;
(e)on 1 February 2018 the matter was referred to the Authority: CB 216-217;
(f)on 21 February 2018 FSQ18 made a submission to the Authority with the assistance of a migration agent and provided a statutory declaration dated 21 February 2018 signed by FSQ18: CB 239-245; and
(g)on 11 October 2018 the Authority Decision was to affirm the Delegate’s Decision: CB 255-275.
FSQ18’s protection claims were as follows: CB 258 at [11]:
(a)as an Iranian of Bakhtiari ethnicity, he is subject to discrimination in Iran. Bakhtiari are prohibited from speaking their language and practising their culture, are verbally and physically assaulted and humiliated and deprived of equal access to basic services such as education, employment and health care. FSQ18 was physically beaten at work for speaking his language;
(b)he was imputed by the authorities as Zoroastrian after an acquaintance sent him a picture of the prophet Zoraster. He was questioned by the authorities (“Etelaat”) and monitored as a result;
(c)he was born and raised a Shia Muslim but no longer practises in that faith. In Australia, he has converted to Christianity;
(d)he and his wife have separated and their families do not know about it. Separation in Iran is culturally unacceptable and those who separate without the consent of their family face humiliation and often revenge attacks or death from family members; and
(e)he has worked for the Iranian government. The Iranian authorities will believe he has worked as a spy and that he has given government information to a western country.
AUTHORITY DECISION
In the Authority Decision the Authority:
(a)took into account FSQ18’s:
(i)written submissions to the extent they took issue with the findings in the Delegate’s Decision and the evidence on which the decision was based as well as the legal arguments about the case law; and
(ii)statutory declaration to the extent that it reiterated information that was before the Delegate: CB 256 at [3] and [7].;
(b)to the extent FSQ18’s written submission and statutory declaration included information about Pentecostalism and the influence this approach to Christianity had on FSQ18’s behaviour and approach to Christianity, considered this to be new information: CB 256 at [5]. The Authority found that:
(i)none of the information in the submission contains what may be regarded as personal information: Migration Act, s 473DD(b)(ii): CB 256 at [6];
(ii)it had been open to FSQ18’s representative to place before the Delegate the information now provided to the Authority: Migration Act, s 473DD(b)(i): CB 256 at [6]; and
(iii)it was not satisfied that there were exceptional circumstances to justify its consideration of new information about Pentecostalism: Migration Act, s 473DD(a): CB 257 at [6];
(c)found that the statutory declaration contained new information as FSQ18 had not previously claimed that while he was in Iran he had been asking questions about Christianity: CB 257 at [7]. The Authority found that:
(i)the information in the statutory declaration is personal to the applicant, but no further evidence was provided which would assist in establishing whether the information was credible: Migration Act, s 473DD(b)(ii): CB 257 at [8];
(ii)if FSQ18 had been asking questions about his Christianity while he was still living in Iran, he would have mentioned it before, either in his written statement, his SHEV interview or to his representative to be provided in the submission to the Delegate: Migration Act, s 473DD(b)(i): CB 257 at [8]; and
(iii)it was not satisfied that there were exceptional circumstances to justify its consideration of new information: Migration Act, s 473DD(a): CB 257 at [9];
(d)took into consideration a new Department of Foreign Affairs and Trade report on Iran, published on 7 June 2018 (“DFAT Report”), on the basis that there were exceptional circumstances to justify doing so: CB 257 at [10];
(e)accepted FSQ18’s claimed identity and that Iran was the receiving country: CB 258 at [13];
(f)did not accept that FSQ18 was targeted (questioned and monitored) by Etelaat because a picture of the prophet Zoroaster was sent to him, and found that FSQ18 fabricated this claim as a basis to claim protection: CB 259 at [20];
(g)accepted FSQ18 was baptised in Australia on 24 September 2017: CB 260 at [22]. It was not, however, satisfied FSQ18 genuinely converted to Christianity due to a real commitment and belief in Christianity, that he ever had a genuine interest in Christianity, or that he was baptised other than for the purpose of his SHE Visa application, and was not satisfied FSQ18 would continue to practise Christianity and attend church or identify as a Christian if he were to return to Iran: CB 262 at [34]. Pursuant to s 5J(6) of the Migration Act the Authority disregarded this conduct in determining whether FSQ18 had a well-founded fear of persecution: CB 267-268 at [57];
(h)was not satisfied FSQ18 faced a real chance of harm in Iran from the Iranian authorities or any other group or person because of his past or any possible future failure to actively involve himself in religious observance or activities while living in Iran: CB 268 at [59];
(i)did not accept that FSQ18 experienced any discrimination including in relation to employment, language, or access to services or university education because of his Bakhtiari ethnicity: CB 266 at [50], and was therefore satisfied that FSQ18 did not face a real chance of serious harm because of his Bakhtiari ethnicity: CB 268 at [60];
(j)was willing to accept that if FSQ18 returns to Iran and decides to live on his own, he may suffer some social stigma as a result of being divorced: CB 267 at [53], but found that any such social stigma would not rise to the level of serious harm and it was satisfied that FSQ18 was not at risk of serious harm because of the breakdown of his marriage: CB 268 at [61];
(k)did not accept FSQ18 would be perceived as a spy or a person who had access to, and might have passed on, sensitive government information: CB 263 at [38]. Further, it was not satisfied there was a real chance that FSQ18 would be subject to questioning by the Iranian authorities for any reason. It was not satisfied FSQ18 faced a real chance of harm from the Iranian authorities or any other group or person due to being a failed asylum seeker from a western country: CB 269 at [68];
(l)found that FSQ18 did not meet the requirements of the definition of refugee in s 5H(1) of the Migration Act, and did not therefore not meet the requirements of s 36(2)(a) of the Migration Act: CB 270 at [70]; and
(m)for the same reasons as set out above, found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of FSQ18’s removal to Iran, FSQ18 will face a real risk of significant harm, and therefore FSQ18 did not meet the requirements of s 36(2)(aa) of the Migration Act: CB 271 at [78].
JUDICIAL REVIEW APPLICATION
Sole ground
The Judicial Review Application contains a sole ground as follows:
The Immigration Assessment Authority made a jurisdictional error in the determination of my case.
Litigation history
Given that more than five and a half years have elapsed since FSQ18 filed the Judicial Review Application it is appropriate to briefly set out and explain the litigation history of the matter in this Court following its filing in the Adelaide Registry on 30 October 2018, and which is as follows:
(a)on 20 December 2018 a Registrar of the Court made orders in Chambers by consent (“December 2018 Registrar’s Orders”), including orders that:
2.The Applicant has leave to file and serve any amended application by 28 February 2019.
3.The Applicant has leave to file and serve such further material, including the transcript of the proceeding before the Second Respondent that he may rely upon at hearing by 28 February 2019.
4. The application be listed for hearing on a date to be advised.
5. The application be listed for directions on 12 June 2020 at 9.30 am.
(b)FSQ18 did not file any amended application or further material as permitted by the December 2018 Registrar’s Orders;
(c)on 31 December 2019 the parties were advised, under the letterhead of the “Federal Court of Australia South Australia Registry” that the “hearing” (actually the directions hearing) on 12 June 2020 had been vacated and adjourned to a date to be fixed. No reason was given for the adjournment (which was pre-COVID), and none is discernible from the electronic court file;
(d)nothing further occurred in relation to the matter until early May 2023 when the matter was docketed to the presently presiding Judge before whom a directions hearing was held on 23 May 2023, and at which FSQ18 was self-represented (with the assistance of a Farsi interpreter);
(e)at the 23 May 2023 directions hearing orders were made (“May 2023 Court Orders”), which included the following:
2.Orders 2-7 and 9 of Registrar Parkyn’s orders of 20 December 2018 be set aside, and in lieu thereof order that:
a)the applicant file and serve any amended originating application, further affidavits, and an outline of submissions by 13 December 2023;
b)the first respondent file and serve any amended response, affidavits in reply, and an outline of submissions by 10 January 2024; and
c)the matter be listed for final hearing by video link on 13 February 2024 at 10.00am AWST/12.30pm ACDT before Judge Lucev.
(f)the Court also added a note to the May 2023 Court Orders, as follows:
B.Having regard to the recent Federal Court judgment in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384, the Court has explained to the applicant:
a)the need to establish material jurisdictional error in the Immigration Assessment Authority decision;
b) the nature of jurisdictional error;
c)the necessity to provide grounds, properly particularised, alleging what the jurisdictional error or errors committed by the Immigration Assessment Authority were;
d)that a failure to specify and particularise jurisdictional error in the grounds may result in the dismissal of the originating application or any amended originating application; and
e)that if the originating application or any amended originating application is dismissed at hearing the applicant may have to pay the Minister’s costs.
(g)FSQ18 did not file any amended originating application, further affidavits or an outline of submissions by 13 December 2023 as permitted by the May 2023 Court Orders, or at all;
(h)the Minister filed an outline of submissions on 10 January 2024;
(i)the final hearing took place on 13 February 2024, with FSQ18 self-represented (with the assistance of a Farsi interpreter), with the Court once again explaining to FSQ18 the necessity to establish jurisdictional error in the Authority Decision, and the nature of jurisdictional error; and
(j)notwithstanding that FSQ18 did not file any amended originating application, further affidavits or an outline of submissions or further material by 13 December 2023 as permitted by the May 2023 Court Orders, FSQ18 was permitted to make oral submissions (consistent with authority to the effect that even where there are un-particularised grounds of review it is necessary for self-represented applicants to be afforded an opportunity by the Court to explain orally the matters that are said to give rise to a ground of review: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 (“DQQ17”) at [9] per Colvin J, and then to have regard to any oral submissions so made: DKN20v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158 (“DKN20”) at [60] per Perry J).
Submissions
FSQ18’s oral submissions
FSQ18’s oral submissions were as follows:
(a)in 2017, when there was an interview (the Court notes that the interview with the Delegate was on 3 October 2017: CB 135 and 140-141) he had a lot of stress and did not think he answered the questions properly;
(b)he came to Australia with three children and it was very difficult to get here;
(c)there have been a lot of family stressors since he arrived in Australia, and he had separated from his wife;
(d)his daughter is sick, and she is going through a lot of stress; and
(e)he had changed his religion and participated in political activities and demonstrations in Australia, and will therefore be in danger if he returns to Iran; and
(f)he thought that there had been a shortcoming in this matter and that the Authority Decision was not just, and that the Authority should have focused on the matter much more than they did.
Minister’s submissions
The Minister’s written and oral submissions were that the Judicial Review Application should be dismissed because:
(a)the single ground of review was an unparticularised assertion of jurisdictional error;
(b)the Authority dealt with the new information put forward by FSQ18 in accordance with the requirements of the Migration Act as explained in the High Court judgment in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196 (“AUS17”);
(c)the Authority did not make any adverse credibility findings different to those of the Delegate, and there was therefore no unreasonable failure to consider inviting FSQ18 for a further interview;
(d)the factual findings made by the Authority were open to be made; and
(e)the Authority understood and correctly applied the relevant law.
Material jurisdictional error required
For present purposes it suffices to observe that this Court may set aside the Tribunal Decision upon judicial review if it is affected by material jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
No jurisdictional error alleged or particularised
FSQ18 was given opportunities to file material setting out, or to orally explain, an alleged jurisdictional error in the Authority Decision, as follows:
(a)the first opportunity was a consequence of the December 2018 Registrar’s Orders, which were made by consent, which permitted FSQ18 to file an amended Judicial Review Application and further material by February 2019. FSQ18 did not do so;
(b)the second opportunity was a consequence of the directions hearing on 23 May 2023 at which FSQ18 had the assistance of an interpreter, and at which the May 2023 Court Orders were made allowing FSQ18 to file an amended Judicial Review Application, any further affidavits and an outline of submissions. At the 21 November 2022 directions hearing the nature of, and requirement to establish, material jurisdictional error affecting the Authority Decision, was explained to FSQ18, and FSQ18 was told that the Court did not engage in merits review of the Authority Decision. FSQ18 did not file any further documents as a result of the May 2023 Court Orders; and
(c)the third opportunity was at the final hearing on 13 February 2024 where the nature of jurisdictional error, and the requirement to establish material jurisdictional error in the Authority Decision, and that the Court did not engage in merits review of the Authority Decision, were all again explained to FSQ18, but FSQ18’s oral submissions did not assert any alleged jurisdictional error.
In the circumstances, the Court is satisfied that FSQ18 had adequate opportunity to allege and particularise any alleged jurisdictional error in the Authority Decision: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [31]-[35] per Feutrill J; DQQ17 at [8]-[9] per Colvin J; DKN20 at [60] per Perry J.
Having given both explanation to FSQ18 as to the nature of jurisdictional error, and the opportunity to FSQ18 to explain what jurisdictional error he alleged affected the Authority Decision, FSQ18’s failure to go beyond the bare assertion of jurisdictional error in the sole ground of the Judicial Review Application, and the failure to particularise the sole ground of review, is sufficient reason to warrant this Court dismissing the Judicial Review Application: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] per Perram, Derrington and Stewart JJ (from which the High Court refused an application for special leave to appeal: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCASL 218); WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (“WZAVW”) at [35] per Gilmour J (and cases there cited); DKN20 at [60] per Perry J, citing WZAVW. It follows that an order dismissing the Judicial Review Application can be made on this basis alone.
Jurisdictional error otherwise
The Court is cognisant that FSQ18 was a self-represented applicant who required an interpreter, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error having been made by the Authority: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 (“Ludgero”) at [26] per Judge Lucev.
While FSQ18 evidently does not agree with the Authority Decision, that is not indicative of jurisdictional error. The Authority was not obliged to accept FSQ18’s claims uncritically: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; (1994) 35 ALD 1; (1994) 124 ALR 265 at 278 per Beaumont J, and the weight to be afforded to the material before the Authority was a matter for the Authority, and the Court cannot engage in a general review of the merits of the Authority Decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. It is evident from a review of the Authority Decision that the Authority:
(a)engaged with the claims made by FSQ18: CB 258-271 at [11]-[78], and considered country information, as it was required to do, in relation to those claims: see, for example, CB 263 at [37] (employment in Iran), CB 264 at [42] and 265-266 at [48]-[49] (Bakthiaris – discrimination and divorce), CB 266-267 at [51]-[53] (separation from wife), CB 268 at [59] (religion/loss of faith), CB 268-269 at [63] and [65]-[66] (returning to Iran); as to engagement with claims, see, for example Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [24]-[25] per Gummow and Callinan JJ and Ludgero at [47]-[50] per Judge Lucev, and as to consideration of country information, see NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11]-[13] per Gray, Tamberlin and Lander JJ and Minister for Immigration and Citizenship v SZQHH and Another [2012] FCAFC 45; (2012) 200 FCR 223; (2012) 287 ALR 523; (2012) 125 ALD 481 at [27] per Rares and Jagot JJ;
(b)dealt with the new information in accordance with the requirements in AUS17;
(c)did not make any adverse credibility findings different to the Delegate based on demeanour, and there was therefore no unreasonable failure to consider inviting FSQ18 to a further interview: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439; (2020) 94 ALJR 928; (2020) 383 ALR 407 at [29]-[31] per Kiefel CJ, Bell, Gageler and Keane JJ; and
(d)correctly understood and applied the relevant legislative principles applicable to the SHE Visa application, and its conclusions in respect of s 36(2)(a) and (aa) of the Migration Act were justified given its factual findings,
and the Authority Decision was therefore one that was open to it on the law and the evidence before it, for the reasons that it gave, and it cannot be said that no other rational or logical decision-maker could not have drawn the same conclusions: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248.
CONCLUSION AND ORDERS
The Court has concluded that FSQ18 has failed to establish material jurisdictional error in the Authority Decision. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 30 April 2024
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