FEDERAL COURT OF AUSTRALIA

FBA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1447

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    The application be dismissed.

3.    The applicant pay the first respondent's costs of and incidental to the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ANDERSON J:

Introduction and summary

1    The applicant applies to this Court for an extension of time to commence an appeal from a decision of the Federal Circuit Court (Circuit Court). The Circuit Court dismissed the applicant's application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), which had affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the applicant a protection visa.

2    Although the applicant also sought leave to appeal, this was unnecessary because the Circuit Court’s orders were final, not interlocutory. However, the applicant does require an extension of time and, because the proposed grounds of appeal identified in his application to this Court were not raised before the Circuit Court, the applicant otherwise requires leave to advance those grounds in this appeal.

3    For the reasons below, the application for an extension of time to appeal is dismissed. Although the Minister conceded that the applicant had legitimate reasons for his delay in initiating an appeal to this Court, my view is that there is no merit in the grounds of appeal proposed by the applicant.

Background

4    The applicant arrived in Australia as an unauthorised maritime arrival on 21 October 2010. He underwent a Refugee Status Assessment in 2011 followed by an Independent Merits Review (IMR) in 2012.

5    A Stateless Status Assessment (SSA) was completed in 2014. As summarised in the Minister’s written submissions before the Circuit Court, as part of the SSA the Department had contracted the applicant’s employer in Iran who stated that the applicant was an Iranian citizen with Iranian documents. The assessment accordingly concluded that the applicant was a documented Iranian national. It also concluded that certain training certificates submitted the applicant were fraudulent.

6    The applicant applied for a temporary protection visa on 23 December 2016. The applicant’s background and his claims for protection were summarised by the Circuit Court as follows:

The applicant claims to have been born in Iraq but expelled from Iraq with his family in 1980 at 13 years of age, and to have lived illegally in Iran from that time until he came to Australia in October 2010. The applicant said that he is a Faili Kurd and of Shia religion. The applicant provided his Iranian white card, an education document from Iraq, and his father's military service book.

The applicant said that in Iran he had no rights as he is a stateless Iraqi Faili Kurd, resulting in no right to work, education, or healthcare. The applicant also said that he suffered physical assaults by the Basij. The applicant also feared return as a failed asylum seeker.

7    On 3 May 2017, a delegate for the Minister of Immigration and Border Protection refused the visa application, and the applicant subsequently sought a merits review of that decision by the Tribunal.

Tribunal’s decision

8    On 26 October 2017, the Tribunal affirmed the delegate’s decision.

9    The Tribunal found that the applicant did have work rights in Iran. This finding was based on the following:

(a)    the Tribunal considered that the applicant worked for “Tidewater”, an Iranian company owned by the Iranian National Guard;

(b)    the applicant “worked in a port which is located in a sensitive region”, which was relevant because it is unlikely the government would permit someone to work there without vetting them; and

(c)    the applicant’s evidence about his employment lacked credibility because he had given inconsistent accounts over time.

10    The Tribunal also found that the applicant was an Iranian Faili Kurd rather than a stateless Faili Kurd. This finding was based on the following:

(a)    the Tribunal had found that he had work rights and had worked in a secure environment. Country information strongly suggested that this meant that he was an Iranian Faili Kurd;

(b)    the material that the applicant had supplied in support of his claim of statelessness was equivocal; and

(c)    the Tribunal accepted that he had been harassed in the past, but in light of the above was not willing to accept that it was for the reasons he claimed.

11    The Tribunal otherwise found that the applicant:

(a)    did not face a real chance or a real risk of harm through his official engagement with the government;

(b)    did not face a real chance or a real risk of harm on account of being a Faili Kurd;

(c)    would not attract attention from authorities upon his return as a failed asylum seeker;

(d)    departed Iran legally; and

(e)    would not face harm upon return to Iran in the reasonably foreseeable future as a result of a melee with authorities in 1989.

Federal Circuit Court’s decision

12    The applicant applied to the Circuit Court for a judicial review of the Tribunal’s decision. The applicant’s ground of review was as follows:

1.     The decision of the Tribunal:

(a)     is affected by an error of law; and

(b)     denied the applicant procedural fairness.

13    On 31 January 2019, the Circuit Court dismissed the application for judicial review: FBA17 v Minister For Immigration & Anor [2019] FCCA 184 (FCCA Reasons).

14    The Circuit Court dismissed ground 1(a) on the basis that the applicant did not provide any written submissions to the Circuit Court, and did not otherwise identify any error of law at the hearing before that Court: FCCA Reasons at [11]-[12].

15    The applicant did not advance any particular argument in relation to ground 1(b). However, the Circuit Court regardless engaged in consideration as to whether the applicant was adequately put on notice of relevant information for the purposes of s 424AA of the Migration Act 1958 (Cth). The Circuit Court held that the Tribunal’s obligation with respect to procedural fairness on this issue was discharged: FCCA Reasons at [25].

16    In the course of doing so, the Circuit Court considered whether it was legally unreasonable for the Tribunal to have put adverse information to the applicant for comment during the course of the Tribunal hearing for comment, as opposed to permitting the applicant an opportunity to comment at some later time. The Circuit Court considered this issue on the basis that the Full Court of the Federal Court in BMV16 v Minister for Home Affairs [2018] FCAFC 90; 261 FCR 476 had held that it could be (and was in that case) legally unreasonable for the Immigration Assessment Authority to require an immediate response to new information.

17    The Circuit Court held that it was not legally unreasonable for the Tribunal in this case for the Tribunal to put material from his previous SSA and IMR to the applicant for comment at the hearing. In this regard, the Circuit Court noted:

(a)    a transcript or recording of the Tribunal proceeding was not in evidence;

(b)    the applicant “was clearly on notice that the IMR materials were being used”; and

(c)    the SSA was referred to for the purpose of directing the applicant’s attention to certain Facebook material. The applicant was on notice of that material.

Application to this Court

18    The applicant filed an application for extension of time and leave to appeal on 10 July 2019. The lengthy grounds of the application were expressed as follows:

Error findings by Department’s Stateless Status Assessment (SSA)

1.    It's unreasonable to determine the applicant's nationality merely based on oral conversation with Mr Poorzadeh. [CB45 & 56]

2.    Corruption level in Iran is high and this was reported by DFAT [Corruption, 2.14-2.17]. Tidewater is a big and reputed company and will not acknowledge that they hired illegal employees. Most subcontractors will hire illegal employees 'because employers did not wish to hire employees formally and pay required insurances and taxes' [Refworld, Country Guidance Note, Iran July 2011]. Therefore, it's not uncommon for companies especially subcontractors to hire illegal employees to avoid paying insurance and taxes and to bribe authorities to turn a blind eye on illegal employees.

3.    The applicant was hired and paid by Mr. Ashraf Husainni to work at on-site workshop/garage, a subcontractor for Seadolf and Seadolf, a subcontractor for Tidewater. Therefore, it's understandable that all the employees including those hired by subcontractors, are required to wear Tidewater's uniform and carrying an ID.

4.    Also the applicant was not hired by Tidewater to work in the office and the evidence given by Mr. Poorzadeh was not credible [CB45 & 56]. Tidewater, as a big and reputed company and will not hire an unknown individual without any qualification and with unknown backgrounds.

5.    If what Mr. Poorzadeh's claimed is credible, the company Tidewater should be able to present the applicant's profiles or documents including payment receipts which the Department's SSA fail to request as solid evidence, but only 'formed the view’ and not confirmed, that the applicant is an Iranian national that only based on oral correspondence with Mr. Poorzadeh which was unreasonable.

6.    If the documentation is requested, it's foreseeable that Tidewater will claimed that they do not keep the records of ex-employees because, as a matter of facts, these documents doesn't exists in the first place.

Findings by the Tribunal in regards to applicant’s nationality that based on his work history was unreasonable and unfounded belief that the applicant will not face harassment as claimed

7.    It's unreasonable for the Tribunal to determine the applicant's nationality that based on his working history on CB326-327, [20]-[27] as the Tribunal unaware on how the corruption works in Iran.

8.    Corruption in Iran play a big role in the country as reported by DFAT and Iran Corruption Report (ICR).

9.    Hiring illegal employees by smaller companies for the purpose to pay lower wages, avoiding paying insurances and taxes and bribery to authorities to turn a blind eye can be considered a common practice in Iran as corruption laws 'are not effectively enforced in practice and impunity is pervasive' (ICR).

10.    Therefore, it's not unreasonable for small companies or subcontractors to hire illegal employees to work in 'sensitive or secure environment'.

11.    The Tribunal may formed a view that the applicant may have work rights but it's unreasonable for the Tribunal to determine that the applicant have work rights or as an Iranian citizen only based on his working histories with certain companies.

12.    The finding by the Tribunal on CB329 [32] 'while I accept that he was harassed, I do not accept that the applicant was harassed for the reason he claimed' was based on its unfounded belief. A report by Refwold stated that,

Human Rights watch reported that in 2003 that the Iranian government's preference for housing new refugees in camps often made Iraqi refugees in cities - both new arrivals and those have lived there for many years – extremely vulnerable to police abuse and discriminatory treatment.

13.    The findings by the Tribunal that the applicant is an Iranian citizen was unreasonable and unfounded as pointed out at [1]-[6]. Therefore, the findings on CB329[34]-[37] was based on these erroneous findings.

14.    The findings by the Tribunal on CB330-331[38]-[43] was based on unfounded belief that the applicant is an Iranian citizen.

15.    The Tribunal also find that only Iranian citizen as a fail asylum seeker will not face persecution when return.

19    Although the applicant sought leave to appeal, leave is not necessary because the Circuit Court’s orders were final, not interlocutory: see, generally, s 24 of the Federal Court of Australia Act 1976 (Cth).

20    In addition, as the proposed grounds of appeal identified in his application to this Court were not raised before the Circuit Court, the applicant requires leave to advance those grounds in this Court.

Submissions

21    The hearing of the application was held on 3 September 2019. The applicant appeared in person with the aid of an interpreter. The Minster was represented by Mr Tran of counsel.

22    I asked the applicant various questions at the hearing about what he said was wrong with the decision of the Tribunal, and his reasons for his delay in appealing to this Court. In response, the applicant predominately referred back to the first ground specified in his application for extension of time—that the Tribunal had erred in relying on an oral conversation to determine his nationality. The applicant reiterated he was Iraqi, not Iranian. The applicant otherwise referred to the difficulty he faced in having to prepare his application without legal assistance.

23    Mr Tran conceded at the hearing that the applicant had an adequate explanation for his delay in filing an appeal in this Court. In short, the applicant experienced difficulty submitting his application by fax and lacked an understanding of what was required for acceptance of his application.

24    Mr Tran nonetheless submitted that the applicant’s application should be dismissed on the basis that the proposed grounds of appeal lacked sufficient merit. In this regard, Mr Tran made the following brief oral submissions:

(1)    it is not the function of this Court to determine whether or not the applicant was stateless, or whether the applicant was Iraqi or Iranian. That was a matter for the Tribunal. The applicant’s is required to established in this Court requisite error in the decision of the Tribunal;

(2)    it is not factually correct that the Tribunal only relied on an oral conversation to determine the applicant’s nationality. The Tribunal also relied upon, amongst other things, a photo from the applicant’s Facebook page to support the inference that the applicant was Iranian; and

(3)    even if the Tribunal has only relied on an oral conversation, there is no suggestion that the Tribunal committed a jurisdictional error in doing so. There is nothing to suggest the Tribunal was unaware of the circumstances in which the oral conversation occurred.

Relevant legal principles

25    The principles to be applied in considering whether to grant an extension of time and whether to grant leave to raise new arguments on appeal are well settled.

26    As to extensions of time, relevant factors include “the length of the delay, the applicant’s explanation for the delay, any prejudice to the respondent, and the substantive merits of the proposed appeal”: DEC16 v Minister for Immigration and Border Protection [2019] FCA 1285 (DEC16) at [15] per Perry J; see also SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [15]-[19] per Murphy J). In assessing the substantive merits of the proposed appeal, “the draft grounds of judicial review should be considered on their face and examined at a “reasonably impressionistic level”; the Court should not descend into a fuller consideration of the arguments for and against each ground”: DEC16 at [16]; see also MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62]-[63] per Mortimer J, affirmed in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; 152 ALD 478 per Tracey, Perry and Charlesworth JJ.

27    As to raising new arguments on appeal, leave should only be granted “if it is expedient in the interests of justice to do so”: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 (VUAX) at [46] per Kiefel, Weinberg and Stone JJ. As explained by the Full Court in VUAX at [48]:

The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

Consideration

28    The applicant’s proposed grounds of appeal are taken to be the fifteen grounds set out in his application for an extension of time, as extracted above at [18].

29    The first six grounds challenge the finding of the Department’s SSA that the applicant was Iranian. The focus of the applicant’s challenge is that the Department should not have placed weight on what they were told by Mr Poorzadeh, the Administration Manager of Tidewater.

30    These six grounds do not reveal any credible claim of jurisdictional error by the Tribunal. Ultimately, the applicant’s challenge to the SSA raises issues of fact finding and impugn the merits of whether the applicant is in fact stateless or Iranian. These are not matters for this Court to consider upon judicial review.

31    Furthermore, the SSA was put to the applicant for comment by the Tribunal and he had the opportunity to address it. There is no reason to doubt that the applicant had full opportunity to address the subject, and that the Tribunal took into account what the applicant said.

32    The applicant moreover contends in his written submissions filed on 29 August 2019 that the SSA is “incomplete”. There is no evidentiary basis for that contention.

33    Proposed grounds of appeal 7 to 11 challenge the Tribunal’s reliance upon the applicant’s work history to reject his claim of statelessness, and in particular challenge the Tribunal’s factual assessment that the Iranian government is unlikely to have permitted a stateless Faili Kurd to work at a sensitive port area. However, again, these grounds do not reveal any jurisdictional error by the Tribunal. They go no higher than a merits review, in that they merely contest and disagree with the conclusions reached by the Tribunal.

34    Because there is no jurisdictional error in the finding that the applicant was Iranian and not stateless, proposed grounds of appeal 13 to 15 do not arise. In any event, they do not disclose any jurisdictional error.

35    The remaining ground specified in the application for extension of time is proposed ground of appeal 12. This challenges the Tribunal’s conclusion that it did not accept that the applicant had been harassed at checkpoints on the basis that he was stateless. This claim should be rejected for the following reasons:

(a)    first, a Tribunal can reject a claim without positive rebutting evidence: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J; and

(b)    second, the Tribunal did not accept his claim after weighing it with, and in the light of, all the other material before the Tribunal. That kind of assessment is precisely what is required of the Tribunal, and no jurisdictional error is shown.

36    The applicant’s written submissions (at [16]-[20] and [23]) raised some additional grounds for challenging the Tribunal’s decision. Each of those additional matters involves challenging the Tribunal’s assessment as to whether the applicant is in fact stateless or Iranian. These additional matters do not disclose any jurisdictional error on the part of the Tribunal.

37    To conclude, the reasons of the Tribunal do not disclose any jurisdictional error on its part. Neither do the reasons of the Circuit Court otherwise disclose any appealable error.

Conclusion and orders

38    For the reasons given above, there is insufficient merit to the proposed grounds of appeal articulated in the applicant’s application for extension of time. For this reason, the application for an extension of time should be refused with costs.

39    I also order that the name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

Associate:

Dated:        6 September 2019