Moghilan v Commonwealth of Australia (Department of Home Affairs)

[2020] FCCA 3008

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOGHILAN v COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF HOME AFFAIRS) [2020] FCCA 3008

Catchwords:
HUMAN RIGHTS – Discrimination – allegation of unlawful racial discrimination in refusal of a tourist visa – applicant does not seek a review of decision – application has no reasonable prospect of success of a court finding that the respondent unlawfully discriminated – application dismissed pursuant to rule 13.10 of the Federal Circuit Court Rules 2001 – applicant did not appear at directions hearing – application dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001.

Legislation:

Australian Human Rights Commission Act 1986 (Cth), ss. 46PH(1B), 46PO.

Federal Circuit Court Rules 2001 (Cth), rr. 13.10, 13.03C(1)(c).

Migration Regulations 1958 (Cth), cl. 600.211.

Racial Discrimination Act 1975 (Cth), ss. 9, 13, 18A, 18C.

Applicant: HOOMAN MOGHILAN

Respondent: COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF HOME AFFAIRS)

File Number: MLG 2818 of 2020

Judgment of: Judge McNab

Hearing date: 12 October 2020

Date of Last Submission: 29 July 2020

Delivered at: Melbourne

Delivered on: 12 October 2020

REPRESENTATION

There being no appearance by the parties

ORDERS

1. The application filed on 29 July 2020 be dismissed pursuant to Rule 13.10 of the Federal Circuit Court Rules 2001 (Cth) or alternatively Rule 13.03(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2818 of 2020

HOOMAN MOGHILAN

Applicant

And

COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF HOME AFFAIRS)

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 29 July 2020 the Applicant filed an application alleging “unlawful discrimination under section 46PO of the Australian Human Rights Commission Act 1986” (“the AHRC Act”).

2. The Applicant names the Commonwealth of Australia (Department of Home Affairs) as the Respondent.

Background

1. The Applicant filed an application for a Visitor (Tourist) (subclass 600) visa with the Australian Department of Home Affairs (“the ADHA” or “the Department”) on 10 February 2020.

2. The visa application was denied on 20 February 2020. The decision of the Delegate of the ADHA (“the Delegate”), states that:

   “[o]n the basis of all the information available to me, including the documents and information the application provided, I find that the criteria for the grant of a Visitor (Tourist) visa in the Tourist stream are not satisfied”.

3. The Delegate states in their decision that they are of the view that clause 600.211 in Schedule 2 of the Migration Regulations 1958 (Cth) (“the Migration Regulations 1958”) is not satisfied. Clause 600.211 of the Migration Regulations 1958 provide as follows:

   “The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

   (a) whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and

   (b) whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and

   (c) any other relevant matter.”

4. The Delegate’s decision then states the visa application was refused for the following reasons:

   “I have assed your current personal and economic circumstances, including:

   family composition

   funds and assets

   employment

   prior international travel

   I note the following:

   You have demonstrated family remaining in Iran, specifically your spouse and child. I accept that these family members may constitute an incentive for you to return home after a visit to Australia. However, I have concerns that the current political, security and economic conditions in your home country may act as a disincentive for you to return. I am not satisfied that the family links you have declared constitute a strong enough incentive for you to return;

   You have demonstrated funds and assets ties in Iran. It is well documented that Iran is experiencing an economic crisis, which is expected to deteriorate. I am not satisfied that your economic ties constitute a strong enough incentive for you to return to Iran;

   You have indicated employment as General Manager for Niroo Pak Gas Aria since 01/03/2018. You have provided an employment reference letter to support this claim. Given the current economic conditions in your home country relative to Australia, I don’t consider your current employment a significant factor that would act as an incentive for you to return to your home country;

   I note that you have overseas travel outside your home country. Based on your overall circumstances as outlined in this decision and the current situation in Iran, given the changes inside Iran since you last travelled outside your home country, I give this previous travel limited weight as evidence that you intend a genuine temporary stay.

   After examining your current personal and personal economic circumstances I am not satisfied that you have demonstrated that you have sufficient personal and economic incentives to return to your home country.”

5. The Applicant then emailed a complaint to the Australian Human Rights Commission (“the AHRC”) on 21 February 2020, on the basis of, amongst other things, racial discrimination: see Attachment B of the AHRC’s Notice of Termination dated 27 July 2020. In that email, the Applicant states, on what is page 1, the following “prejudicial grounds” as the basis for his complaint:

   “The decision justification clearly questions my emotional bonds to my loving family only based on my nationality and ongoing situation in my country, suggesting that I may leave my family behind for "political, security and economic conditions" in my country. – I found this the most disturbing part. It prejudges my character and dignity as well as my love and commitment to my family.

   It also questions my professional commitment to the company I have been leading to thrive in the past two years through the difficult times; citing the superiority of Australia economy which I found in contradiction with the spirit of Article 4 of the International Convention on the Eliminate of All Forms of Racial Discrimination which condemn all propaganda which are based on ideas or theories of superiority of one race or group of persons.

   The officer suggests that the "economic crisis" in my country is "expected to deteriorate", a worrying prediction about the future of my country I shall not expect to hear from a visa officer.

   The whole rejection justifications – however unintentionally and in line with his/her duty to serve and protect their country, serves as a means to make me feel bad about my nationality and insecure about the country I live in as well as the future of my country and my family, discriminated and sort of humiliated.”

6. The Applicant then further states on page 1 – 2 that:

   “Consequently, acknowledging the fact that I am not an Australian citizen, I would like to report a case of Racial and National Origin Discrimination and seek redress based on the rights recognized and protected by:

   - Universal Deceleration of Human Rights: Articles 1, 2 and 8

   - International Convention on the Elimination of All Forms of Racial Discrimination:

   Articles 2 and 4

   - Section 18C of the Racial Discrimination Act 1975

   Eventually, while I acknowledge the right of countries to reject visa requests on whatever reason they deem justified to avoid unauthorized/uncontrolled migration, admitting that if the officer had simply stated that the submitted documents were insufficient and failed to convince him/her about my travel intentions, I would have totally respected the decision; the comments did hurt my feelings, questioned my loyalty and commitment to whatever I care most about in my life including my family, my career and my country.”

7. The complaint was provided to the Respondent on 12 May 2020. The AHRC received a response from the Respondent on 10 July 2020, which was provided to the Applicant on 14 July 2020. The AHRC issued a Notice of Termination on 27 July 2020, pursuant to s46PH(1B)(b) of the AHRC Act, on the basis that there was no reasonable prospects of the matter being settled by conciliation because the parties could not agree on how to resolve the complaint.

8. The application to this Court was then made on 29 July 2020.

Grounds of Application

1. The grounds of the application to this Court are as follows:

   “1 – On the grounds stated in the attached documents, the Applicant on behalf of his own claims that the Department of Home Affairs has caused great injury to feeling by stating racial discriminatory comments in the tourist visa refusal notification (attached to this application) based on prejudicial conclusions and based on the nationality of the applicant.

   2 – The Respondent during conciliation efforts by the Commission claimed that the action in question has been allowed by law and hence is totally justified; the Applicant however would like to inquire whether the law really permits the Department to treat visa applicants in such discriminatory manner.”

2. On that basis the Applicant claims he was discriminated against pursuant to s9, s13, s18A and s18C of the Racial Discrimination Act 1975 (Cth) (“the Racial Discrimination Act 1975”).

3. The Applicant seeks relief as follows:

   “The Applicant asks the Court for an apology from the Respondent as well as compensation for the injured feelings. This compensation doesn't need to be monetary but something to relieve the injured feelings of the Applicant e.g. processing the visa request one more time and this time in a fair and unbiased manner.”

4. The Court notes that in the Applicant’s complaint to the AHRC he states on page 2:

   “P.S.: Please note that this is by no means a request for decision review as I have already changed the plan for my vacation to travel to another tourism destination.”

Consideration

1. As is apparent from the foregoing, the Applicant is a resident of Iran and not an Australian citizen. He does not seek a review of the decision of the ADHA and in effect seeks a declaration that the Department has acted contrary to the stated provisions of the Racial Discrimination Act 1975 in refusing his application for a tourist visa.

2. The Court has the power to summarily dismiss a claim under r13.10 of the Federal Circuit Court Rules 2001 (Cth) (“the Federal Circuit Court Rules 2001”), where the Court is satisfied that:

   a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or

   b)the proceeding or claim for relief is frivolous or vexatious; or

   c)the proceeding or claim for relief is an abuse of the process of the Court.

3. The Court is satisfied that the proceeding has no reasonable prospect of succeeding or alternatively is an abuse of the process of the Court.

4. The claim of racial discrimination has no reasonable prospect of success as, in making findings and making a decision in relation to the application for a tourist visa, the Delegate was simply applying the relevant regulations.

5. The Applicant is effectively seeking an advisory opinion from the Court as to whether taking into account the economic conditions in an Applicant’s for a tourist visa’s home country is contrary to the provisions of the Racial Discrimination Act 1975. It seems that, on its face, the decision of the Delegate was made because of the Delegate’s view of the economic conditions in Iran and not simply because the Applicant is Iranian. Taking the economic conditions of an Applicant’s home country into account for the purposes of determining whether an applicant intends to comply with visa conditions is not an irrelevant consideration. The Delegate was authorised to make the decision based on the information before him or her. If the Applicant is unhappy with the Delegate’s decision, he may make a further application for a tourist visa or alternatively pursue whatever ground of review he wishes to pursue. For these reasons the Court is of the view that the claim ought to be dismissed pursuant to r13.10 of the Federal Circuit Court Rules 2001. 

6. Further, the Court has the power to dismiss an application if the Applicant making a claim is absent from a hearing. Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 provides as follows:

   (1) If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do 1 or more of the following:

   …

   (c) if the absent party is an applicant – dismiss the application;

   …

7. By way of orders made at a directions hearing on 7 September 2020, at which the Applicant appeared, this matter was listed for a further directions hearing on 12 October 2020 at 10.30am. The Court received correspondence from the Applicant on 7 October 2020 as follows:

   “Thank you for the notification but I am afraid I am not going to be able to appear as the time zone difference between Teheran and Melbourne is now 7.30 hours, however, as I have already submitted my inputs as a note and also supporting documents, I don't think it will affect the hearing much if I am not present.”

8. The Applicant, as well as the Respondent, did not appear at the directions hearing that was held on 12 October 2020. On that basis the Court is satisfied that the claim should also be dismissed pursuant to r13.03C(1)(c) of the Federal Circuit Court Rules 2001.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate: 

Date: 6 November 2020