GRT18 v Minister for Home Affairs

[2019] FCCA 2719

FEDERAL CIRCUIT COURT OF AUSTRALIA

GRT18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2719

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)

Applicant: GRT18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 1317 of 2018

Judgment of: Judge Vasta

Hearing date: 10 September 2019

Date of Last Submission: 10 September 2019

Delivered at: Brisbane

Delivered on: 10 September 2019

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the First Respondent: Minter Ellison

ORDERS

1. The Applicant’s application for an adjournment of the hearing of the matter be dismissed.

2. The application for review filed on 21 December 2018 be dismissed.

3. The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1317 of 2018

GRT18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

ADJOURNMENT APPLICATION

1. On 21 December 2018 the Applicant, GRT18, filed an originating application seeking this court review a decision of the IAA.  After that date the Minister filed their notice of address and their response. 

2. On 13 February 2019 the matter was first before the Court where Registrar Belcher made directions. The directions that Registrar Belcher made included these:

   2. By 4:00pm on 17 April 2019 the applicant shall file and serve any amended application upon which the applicant intends to rely, giving complete particulars of each ground of review.

   5. By 4:00pm 28 days prior to the hearing the applicant shall file and serve written submissions and a list of authorities in support of the application for review.

3. The application was adjourned to 2 September at 11 am for final hearing. The Applicant did not file any amended application by 17 April 2019.

4. On 24 June 2019, my Chambers notified both parties that the matter had to be adjourned for eight days and that it would be relisted to 10 September 2019 at 11 am. That meant that the 28 days prior to the hearing that the Applicant had to file and serve his written submissions was now Tuesday, 13 August 2019. The Applicant did not file any written submissions.

5. The Applicant has handed to me three pieces of paper.  One is a receipt from Results Migration which talk of their professional charges, in connection with the abovementioned matter, of $1100 and a computer generated BPOINT payment receipt to Results Migration indicating that Results Migration had been paid $1650.  Both receipts are dated 21 December 2018 and it is unclear to me as to whether they are separate or should be seen as two separate payments.  For the benefit of the Applicant I will treat them as two separate payments.

6. I do note that the Applicant’s application and affidavit were filed on 21 December 2018 which seems to me would have accounted for, at the very least, the filing fees for this matter.  It seems to me that these receipts would account for the preparation of the originating application, the preparation of the Applicant’s affidavit which annexed both the delegate’s decision and the IAA decision, and the filing fees, as certainly one has a GST component to it.

7. The Applicant has also given a schedule of fees which talks of professional migration fees, but it has very little else other than to say that, if there is a payment, that payments should be made in the following instalments:  firstly, $2750 to be paid upon the commencement of the matter; and, an amount to be paid at the start of the directions hearing; an amount to be paid at the final court appearance; and, government fees to be paid by client before lodgement.

8. The Applicant says that he believes that because he had paid the total amount of $2750 that, therefore, he had a contract with the firm Results Migration.

9. The notice that was sent by my Chambers to the parties to adjourn the matter to 10 September was sent to both parties.  At 1.20 pm on 19 August, which was some six days after the deadline for the Applicant to put in his written submissions, Mr McLaren, the representative for the Minister, received a phone call from a Nicole Hendrickson who asked about the Applicant’s hearing on the 10th of the 9th, and asking for information on making an adjournment application.  Mr McLaren explained the general process to her.

10. The Applicant, later that same day, sent an email to Mr McLaren that has no content but has this on the subject line:

    Dear, David.  I would like to request an adjournment on my upcoming court appointment on 10 September 2019.  I would like to make the request on grounds of medical reasons as I have been under a lot of stress recently and I do not feel I can cope with…

11. That email was sent at 9.12 pm.  An identical email was sent at 9.24 pm on 19 August.  The Applicant emailed Mr McLaren on Tuesday, 20 August at 5.18 pm saying:

    I would like to request an adjournment on my upcoming court appointment on 10 September 2019, proceeding BRG1317 of 2018.  I would like to make the request on grounds of medical reasons as I have been under a lot of stress recently and I do not feel I can cope with the extra stress of the Court appointment.  What is the maximum timeframe I could ask for the Court appointment to be adjourned until and what is the next step in requesting an adjournment?  Sincerely, the Applicant.

12. Mr McLaren replied to the Applicant on 23 August saying:

    Dear, sir.  We refer to your email below.  As we understand it you wish to apply for an adjournment of the hearing before your application which is scheduled on 10 September.  If you wish to apply for an adjournment you will need to make an application to the Court.  It will usually be sufficient to email the judge’s chambers to explain that you are seeking an adjournment and to explain the reasons for seeking an adjournment and the length of the adjournment sought; however, we confirm that based on the information you have provided thus far the Minister would oppose your adjournment request. 

    This is because you have provided no medical or other evidence to suggest there is any inability to attend and participate in your scheduled hearing.  If you do apply to the Court seeking an adjournment please copy us in to such correspondence and indicate the Minister currently opposes the application because you have provided no medical evidence to suggest an adjournment is necessary.

13. The Minister heard nothing more from the Applicant. The Minister’s submissions were due on 27 August, and the Minister complied. In complying with those orders, the Minister sent an email to the Applicant which contained their submissions. To ensure that this occurred the Minister also sent the submissions by post under the hand of a covering letter.

14. On 6 September, which was Friday of last week, the Applicant telephoned Mr McLaren and Mr McLaren was not there.  His executive assistant took the phone call and sent a note to Mr McLaren saying that the Applicant had phoned:

    He says he cannot pay the other half of the money, $2000 or something.  He queried if David McLaren, his lawyer, will be at court on Tuesday.  I explained David is not his lawyer but the lawyer for the Minister for Home Affairs.  I said he needs to obtain his own lawyer when he attends court on Tuesday at 11 am.

15. Another phone call was received by the EA yesterday, Monday, 9 September.  She sent a note to Mr McLaren.  This phone call was from Nicole Hendrickson.  The note says that:

    Nicole Hendrickson said that they have spoken to RAILS and other lawyers to assist with the hearing tomorrow but no one is available.  She said David McLaren advised they can email the judge to adjourn the matter.  I (Ms Jones, the EA) requested to speak with the applicant to gain his consent to speak with her (Ms Hendrickson).

16. Ms Hendrickson requested the judge’s email address and Ms Jones advised her that it was in the email sent on 27 August.  She requested details of the lawyer to help and Ms Jones said that she cannot assist in the matter.  Ms Jones advised that she can try emailing the Associate and to go from there, but Mr McLaren was not in the office that day. 

17. The Applicant then sent an email to my chambers at 2.53pm on 9 September saying:

    Dear, sir/madam.  I am emailing regarding my court appointment tomorrow.  I am requesting to seek an adjournment.  I do not have any legal representation for tomorrow.  Due to language barriers I have not understood the situation or the processes that have been occurring.  I, in fact, thought the lawyers at Minter Ellison would be my legal representation tomorrow; however, I have now realised with the help of my English speaking friend that I will have no legal representation for my appointment tomorrow and have no documents prepared. 

    My friend helped me contact RAILS who have informed me that this situation is out of their capacity to help.  They have given me a list of lawyers in Brisbane and we have contacted all the lawyers on that list; however, due to the extremely short notice no one is able to assist.  The only advice we have been given is to plead for an adjournment.  Due to the language barrier I’ve been unable to understand any emails or correspondence.  I am pleading for an adjournment in order to seek legal representation.

18. Mr McLaren emailed my Chambers to say:

    In reference to the email below, I am instructed that the Minister opposes the request for adjournment made by the applicant.

19. My Associate, who is assisting the Court in Perth, then wrote to the parties saying that:

    We note this matter was listed for hearing by Registrar Belcher on 13 February.  We note you appeared in person on this date with the assistance of a Farsi interpreter.  We advise the Minister objects to your request for an adjournment.  In those circumstances, your request for an adjournment has been refused.  We otherwise confirm the matter is listed for hearing at 11 am tomorrow and in the event you seek to press for an adjournment of the hearing you may do so before his Honour at court tomorrow. 

    We advise a Farsi interpreter has been arranged to assist you on this date as per your request.  If you fail to appear at court the Court will consider making orders on a final basis in your absence.

20. The Applicant did come to this Court and he asked for an adjournment.  He said that from day one, because he paid his lawyer, he thought that he would have a lawyer.  He said that he contacted that lawyer who said that they would send someone else.  Then he said, again, that he thought that Ms Alicia Jones and Mr McLaren were his lawyers, and then he was told by his other lawyers, it would seem, at Results Migration that the fee that he had paid was just to file the application.  He says that these papers show that he had a contract with Results Migration. 

21. Unfortunately, it does not show that he had a contract with Results Migration. When one goes through this history it does not show that the Applicant could have realistically thought that Mr McLaren was his lawyer.  If the person, Nicole Hendrickson, who phoned Mr McLaren on 19 August 2019, did speak English and Mr McLaren did explain the process for making an application for adjournment, it would seem strange how the Applicant could have thought that he was contacting his own lawyer to do that without there being anything from the Results Migration people.  There is nothing on the record that shows that Results Migration were actually ever the lawyers on the record. 

22. As has been noted, this matter has been set down since 13 February. The Applicant has done absolutely nothing to progress this matter. I do not accept that he could ever have thought that Mr McLaren or Ms Jones were, in fact, his lawyers and that this is really an attempt to somehow – to use the words of former High Court Judge, Ian Callinan QC in his report on the AAT – an attempt to “game the system” so as to extend this matter.

23. When I have a look at the actual originating application which has just the one ground of application it does not seem to me that this application at all has been brought with any real conviction that the IAA has actually made a jurisdictional error. 

24. There has been no explanation as to why the Applicant did not comply with the order to file any amended application by 17 April.  If the excuse is that he did not wish to change the application, that has not been a submission made, but it may be one explanation that is open.  There is still no explanation as to why the Applicant did not file written submissions by 13 August.

25. If it is the fact that the 10 September date was looming that caused him to do anything, one wonders why he did not do anything before the date of 13 August had reared its head either. 

26. The matter has been in this Court since December 2018.  The Applicant has known exactly what he needs to do since February 2019.  I do not accept his reason for wanting an adjournment.

27. The Minister wishes to proceed with the matter.  It is obvious that – and I say this is as an aside because it is not a reason to deny the adjournment – the Minister will have been put to a deal of expense by coming here and, quite frankly, it is obvious that the Applicant cannot afford to pay the Minister’s costs of an adjournment, but that is not determinative of anything.  It is simply an aside that I have noted that, but it is not a reason to deny the adjournment.

28. Given the chronology of this matter, given the application that is before the Court, and given the correspondence that I have seen, I am not convinced that it is in the interests of justice to grant the adjournment.  The Court’s processes must be dealt with in an efficient and timely way, and I refuse the adjournment.

SUBSTANTIVE APPLICATION

1. On 23 November 2018 the IAA affirmed a decision of the delegate not to grant the applicant, GRT18, a Protection visa.  On 21 December 2018 the Applicant filed an application in this Court asking this Court to review that decision.

2. The background to this is that the Applicant is a citizen of Iran.  He said that his family are Kurdish.  He said that he faced harassment and discrimination in Iran because of his ethnicity.  He said that this included limited employment opportunities.  He said that he was born a Shia Muslim and that his parents are strict practicing Muslims. 

3. He said that when he was a child his older brother was executed for being against the Iranian authorities.  He said that during the Iran-Iraq War he was suspected of being aligned to the Mojahedin-e Khalq.  That is the MEK for short. 

4. He said that whilst on leave during his military service he was caught eating in public during Ramadan.  He was subjected to 10 lashes as punishment.  He said after he was lashed he became disillusioned with Islam and stopped practicing.  He said he was about 19 years old at the time.  Since he has come to Australia, he began attending church with some of his friends.  He said that he has now converted to Christianity and was baptised in April 2016. 

5. He says that if he were to return to Iran, he fears that he will be harmed because of his conversion to Christianity, because he requested asylum in Australia, because he is Kurdish, and because he has been perceived as being opposed to the Iranian Government. The IAA went through these claims.

6. The IAA was willing to accept that the brother was executed during the Iran-Iraq War as claimed for being a suspected MEK member.  The country information was that the MEK was a group committed to the overthrow of the Islamic Republic.  The information is that, in 1988, Ayatollah Khomeini issued a fatwa that mentioned apostasy as a legitimate reason to execute MEK members, leading to about 3000 MEK prisoners being executed.  In that context it was plausible that the brother may have been one of those persons.  The IAA said:

   It is plausible that both his brother’s profile and the Kurdish ethnicity may have impacted on the applicant’s ability to obtain some employment.

7. But the evidence was that the Applicant was able to attend school, to perform military service, and to obtain various jobs while he resided in Iran.  It was not apparent that either the Applicant or his family were ever denied access to basic services, or denied the capacity to subsist, or that any of his relatives who remain in Iran were facing such problems.

8. The IAA was willing to accept that the Applicant was not devout in his religious practice.  The IAA was also willing to accept the Applicant was caught eating during Ramadan and was given 10 lashes.  The Applicant, though, was permitted to complete the military service that he was on leave from, and that he was able to continue residing in Iran without further incident.  The IAA said that this indicated that he was not of ongoing interest because of this particular event.

9. The statement for the visa application does not suggest that there was any particular event that motivated the Applicant leaving Iran in 2013.  The delegate directly questioned the Applicant about why he left Iran when he did and the Applicant said that it was many things, including discrimination, ethics, lack of faith and pressure.  The vague response caused the IAA to doubt the extent to which a fear of serious harm caused the Applicant to depart Iran when he did.

10. The Applicant departed Iran lawfully through the major international airport using an Iranian passport in his name.  There is no indication that he took any measures to avoid coming to the attention of authorities and this suggests that he did not consider himself to be of adverse interest to Iranian authorities when he went through the airport.

11. There is no suggestion that since his departure from Iran that any of his family members have received any adverse attention from the authorities. 

12. The IAA then went through the Applicant’s claim to have converted to Christianity.  There were three letters of support:  one from 20 November 2016; one from 18 March 2018; and, a third letter dated 27 March 2018.  The IAA had some concerns about these letters. 

13. With regard to the first letter, a lot of it did not have information about the Applicant but simply general information that the author provided as information or instruction to various Iranians interested in Christianity. That reverend author noted that, in October 2014, the group became so large that it outgrew his house and so he decided to begin a church for them.

14. He said that the Applicant began attending a year previously to the letter, which would seem to be November 2015.  He said that the Applicant has been a regular attendee of the church and he completed a six weeks’ course on Christian beliefs and has been baptised.  He said that the Applicant has spoken of the changes Jesus is making in his life. But that there is no other detail about the Applicant’s connection to the church.

15. The first and second letters from the same reverend refer to the Applicant completing a six week course, but they make no reference to the Applicant attending Bible study. The Applicant’s evidence, when he was interviewed, was that he had attended Bible studies for seven to eight months before informing the reverend that he would like to be baptised. This seems to have occurred in either April or September 2016, but the concern was that if the Applicant was attending Bible studies at the reverend’s house that this was not mentioned in either of the first two letters.

16. The Applicant also indicated, at his interview, that he was attending Sunday services at church and Bible studies of a Friday at the reverend’s house.  The attendance was affirmed by the third letter, but it is notable that despite those letters there is no comment on the Applicant’s religious development during that period in the opinion of the reverend.

1. In the third letter, the reverend indicated that he encouraged the Applicant and other Iranians to come to church to study the Bible with another leader in the church who was proficient in the Persian language.  In the previous letter, the reverend asked an Iranian friend to help translate the Bible study sessions and he did not suggest the Applicant was studying with another leader.

2. The reverend indicated that after some time, the Applicant approached him about pursuing baptism and that it was his friend, who appears to be the Iranian church leader, who had already expressed the view that the Applicant was a sincere believer of the Christian faith, and that he then satisfied himself the Applicant was a sincere believer through a personal interview.

3. But the Applicant has provided little detail, according to the IAA, about what initially spurred his interest in Christianity.  In the application, he says that he first went to church with some friends because they were all new arrivals and the church supported asylum seekers, but at the interview with the delegate, he said that before 2016 he went to church with some friends who were already attending. 

4. The IAA noted that the Applicant was requested by the delegate on various occasions to provide examples of Biblical verses or parables that resonated with him.  While he was able to recite some Biblical teachings he has struggled to explain why they were significant to him or the messages that he took away from them.  He offered some comparisons between Christianity and Islam, but they were brief and lacking in detail. 

5. As an example, the IAA noted that the Applicant said that Christianity has no force or bloodshed, unlike Islam, and that Christianity is a religion of love and kindness. 

6. The IAA concluded that the Applicant’s responses did not evidence a personal connection with the theology of the faith he claims to have been interested in for about three years.  The IAA said that, having regard to the concerns that have been identified with the letters from the reverend, and weighing up the Applicant’s own evidence on his religious beliefs cumulatively, the IAA was not satisfied of the sincerity of the Applicant’s beliefs.  The IAA did not accept the Applicant is a genuine follower of Christianity, nor are they satisfied that he would seek to practice the Christian faith in Iran should he return there.

7. The Applicant indicated that while in Iran his parents were devout in their practice of Islam, but he and his siblings were not. He said that he did not pray regularly and his parents never forced him to do so, though he has a belief in God. In the reverend’s letter of 27 March 2018, it was asserted that the Applicant had ceased believing in Islam long before leaving Iran; however, when the Applicant arrived in Australia a number of years after he was lashed, the Applicant, when asked what his religion was, gave it as Shia.

8. The IAA said that they accepted that the Applicant was not devout in his practice of the Islamic faith and that he became disillusioned after being lashed; however, given their doubts in relation to other claims concerning the religious beliefs, the IAA was not satisfied the Applicant has, in fact, renounced Islam as claimed.

9. The IAA said that there was evidence that the Applicant has been involved in some Christian activities and, at the interview with the delegate, he discussed the aspects of Islam that he did not like.  The IAA said that whilst they did not accept that the Applicant has abandoned Islam, they were satisfied that he is not strictly adherent to that faith and that he was not devout in his practice whilst in Iran.

10. In paragraph 27 the IAA said this:

    27. I accept that were the applicant to return to Iran he would do so after having requested asylum in Australia. Country information indicates that Iranian overseas missions will not issue travel documents to Iranian nationals whom a foreign government wishes to return involuntarily to Iran.  The Australian Government has reached an agreement with the Iranian authorities to facilitate the return of Iranians who arrived in Australia after 19 March 2018.  As the applicant arrived in Australia in 2013 those arrangements do not apply to him…

11. The IAA said that they were not satisfied the Applicant will be involuntarily returned to Iran from Australia and any return to that country would be on a voluntary basis. 

12. The IAA went through the Applicant’s claims regarding his Kurdish ethnicity and his previous adverse attention and concluded that they were not satisfied that were the Applicant to return to Iran he faces a real chance of treatment amounting to serious harm for reasons of his ethnicity and this is even so when taking into account the profile of his family due to his brother’s execution and that the Applicant was previously lashed for non-compliance with religious laws.

13. The IAA looked at the fact that the Applicant had been attending church and had been baptised and noted that the Applicant had previously successfully secured employment whilst in Iran and there was no indication that any of his relatives had faced any difficulty in this regard on religious grounds. The IAA said that there was no indication that the Applicant experienced any harm for failure to observe the Muslim faith whilst in Iran.

14. The IAA was not satisfied there was a real chance he would experience any harm for this reason in the foreseeable future were he to return to that country. This was predicated upon the IAA’s non-satisfaction that the Applicant was either now a follower of Christianity or had renounced Islam.

15. The IAA then went through the country information as to what happens to returning asylum seekers.  Notwithstanding the Kurdish ethnicity, the church activities in Australia and the previous historical occasions when he and the brother attracted adverse interest from the Iranian authorities, the IAA came to the conclusion that the Applicant would not face any serious harm because of his being a returning asylum seeker.  Therefore, he did not meet the requirements of the definition of “refugee”.

16. The IAA then went and assessed the complementary protection assessment criteria. In going through many of these same issues again, the IAA then concluded that they did not accept that there was a real risk of significant harm to the applicant for any reason were he to be removed to Iran.

17. As I said before in giving reasons for refusing an adjournment, the grounds of this application are one and one only.  It is that:

    1. The IAA reached an erroneous conclusion in regard to whether the applicant would voluntarily return to his home country, which led the IAA to commit jurisdictional error.

18. The particulars were that:

    The IAA has reached the conclusion without basis that the applicant would voluntarily be returned to his home country.  This conclusion was not reached on the evidence before the IAA and, as a result, the IAA failed to take into account relevant considerations associated with the applicant being involuntarily returned to his home country.

19. I have already read paragraph 27 into the record. The IAA accepted that were the Applicant to return to Iran he would only do so as a voluntary returnee. The IAA noted that if he were an involuntary returnee to Iran, Iran would not issue travel documents to him. The IAA was not satisfied that, having considered the evidence before it, including relevant country information, the Applicant would be involuntarily returned to Iran from Australia so that, therefore, any return to Iran would be on a voluntary basis.

20. The IAA’s conclusion, as one can see by reading paragraph 27, was reached on the evidence before it, including the country information that indicated that Iran does not accept involuntary returnees.  It, therefore, cannot be said that the IAA failed to take into account any relevant considerations associated with the Applicant being involuntarily returned to the home country. But as the Minister noted, the Applicant did not ever claim to fear harm in Iran as a result of being involuntarily returned to Iran.  The IAA has made a factual finding that the Applicant would return voluntarily and that factual finding is open on the evidence. 

21. I cannot see that there has been a jurisdictional error illustrated by the ground of the application. 

22. When the Applicant appeared before me today, aided by the interpreter, I asked him if he had anything more to say with relation to that ground.  He said to me that what is written in the application is all he had to say about that particular ground. 

23. I asked him if he had anything further that he wished to bring to the Court’s attention to illustrate that the IAA may have been in error. 

24. He said that, according to his lawyer, the IAA have found that he converted to Christianity, but there is no risk if he returned to Iran. He asked “how do they know?”. Whilst it is obvious that the IAA may have said that he converted to Christianity, the IAA was not satisfied that he was a true convert and that he would follow Christianity if he went back to Iran.

25. The question asked as to “how do they know?” is really a matter where one has to look at the IAA making an assessment as to whether there is a risk of serious harm.  The IAA makes that assessment after looking at all the evidence that the Applicant has given plus the country information. 

26. On all of that evidence the IAA came to the conclusion that they were not satisfied that there was a risk of serious harm.  That is, semantically, a different proposition.  It is not that the IAA is saying that they know that the Applicant will not be harmed; they are saying that the Applicant has not proven to them that he would be harmed.

27. Again, that was part of what the Applicant said.  He said that no one could give him a guarantee that he was not at risk.  Again, it is not for the IAA or the department to give a guarantee that someone is not at risk.  It is for the Applicant to show that he actually is at risk. 

28. The Applicant said that he has much information about himself on Facebook and social media.  I take it from that, that his submission is that this sort of information could be accessible by the authorities in Iran and so, therefore, he may not be safe because the authorities would see that he had undergone Christian initiation rites. 

29. That claim was not a claim that was before the delegate or the IAA.  It is a new claim and it is one that cannot be the subject of review.

30. Because this aspect was the subject of a submission by the Minister, I asked the Applicant if he had anything to add in reply.  He said that no one had ever asked him about Facebook and no one had ever asked him about social media and that is why he had never mentioned this before.  It is trite to say it is not for the delegate or for the IAA to suggest matters to the Applicant.  It is for the Applicant to raise matters with the delegate in making his application for protection.

31. It does not seem to me that this could in any way illustrate a jurisdictional error.  In all other respects, everything else that the Applicant had said was an invitation to an impermissible merits review. 

32. Having gone through the decision, I cannot find any jurisdictional error.  I dismiss the application with costs in the sum of $7000.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  27 September 2019