Plaintiff S135/2020 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] HCATrans 205 (27 November 2020)

Last Updated: 30 November 2020

[2020] HCATrans 205

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S135 of 2020

B e t w e e n -

PLAINTIFF S135/2020

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 27 NOVEMBER 2020, AT 9.32 AM

Copyright in the High Court of Australia
HER HONOUR: On 7 August 2020, the plaintiff filed an application for a constitutional or other writ. For the reasons that I now publish the application is dismissed with costs.

The order of the Court is:

1. Application dismissed with costs.

I publish that order and the reasons. I direct that the reasons be incorporated into the transcript.

On 7 August 2020, the plaintiff filed an application for a constitutional or other writ claiming orders for: (i) a writ of certiorari to quash the decision of a delegate of the defendant, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister”), refusing the plaintiff’s application for a protection visa (“the application”); and (ii) a writ of mandamus to compel the Minister to consider the application according to law. Notably, the application was made in late December 2012 and the delegate’s decision to refuse the application (“the decision”) was made on 24 February 2014.

The decision is a “migration decision” under the Migration Act 1958 (Cth) (“the Act”)^[1]. Section 486A(1) of the Act provides that an application to this Court for a remedy to be granted in the exercise of its original jurisdiction in relation to a migration decision must be made within 35 days of the date of the migration decision. Section 486A(2) provides that the Court may, by order, extend the 35 day period as the Court considers appropriate if an application for such an order has been made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order and the Court is satisfied that it is necessary in those interests so to do.

The application was filed more than six years after the date of the decision. It does not include an application to extend the 35 day period nor does it specify why it is necessary in the interests of the administration of justice to make the order. The plaintiff relies on the contents of his reply, together with the submissions and affidavit evidence filed in support of the application to satisfy the requirements of s 486A(2) of the Act.

In the event that the plaintiff is found to have complied with the requirements of s 486A(2) of the Act, the Minister submits that an extension should not be granted because the plaintiff’s explanation for the delay is not adequate and the grounds in the application do not have sufficient merit to warrant an extension. Accepting that the plaintiff’s reply taken with the submissions and his affidavit is to be understood as an application for an order extending the time in which to bring the proceeding, I have directed that the application for the extension be determined without listing it for hearing^[2]. For the reasons to be given, I am not satisfied that it is necessary in the interests of the administration of justice to make an order extending the time in which to bring the application and it follows that it must be dismissed.

The plaintiff’s explanation for the delay in bringing the proceeding is as follows. The plaintiff engaged a migration agent to act on his behalf in connection with his application for a protection visa. The migration agent failed to inform the plaintiff of the decision. The first knowledge the plaintiff had of the decision was on 8 May 2015 when he was contacted directly by the Minister’s department.

Towards the end of December 2015, the plaintiff applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of the decision. In mid‑February 2016, the plaintiff was notified that the Tribunal had determined that it was without jurisdiction in the matter. In March 2016, the plaintiff met with a solicitor and discussed his options. The solicitor agreed to help the plaintiff to prepare a “High Court appeal”. In the event, no application was made to this Court following this discussion. In January 2017, a request for ministerial intervention was submitted on the plaintiff’s behalf. In April 2017, the plaintiff was advised that his request would not be referred to the Minister. In May 2019, the plaintiff made a further application to the Tribunal. In January 2020, the plaintiff was advised that again the Tribunal had determined that it was without jurisdiction.

The Minister relies on Re Commonwealth; Ex parte Marks for the proposition that a “’case would need to be exceptional’ before the time for commencing proceedings was enlarged by many months”^[3]. The plaintiff does not contend to the contrary. The Minister identifies the principal factors relevant to the exercise of the power to extend time under the Act as: (i) the explanation for the delay; (ii) any prejudice to the administration of justice caused by the delay; and (iii) the prospect of the plaintiff obtaining the relief that is claimed in the event the extension were to be granted. The Minister relies on the first and third factors in opposing the extension sought, he does not submit that any prejudice has been occasioned by the delay. The Minister submits that the explanation for the delay is not adequate; there are unexplained lengthy intervals when no action appears to have been taken. The Minister submits that the fact that the plaintiff applied for ministerial intervention does not serve, without more, as an adequate explanation for not commencing proceedings for judicial review^[4].

The plaintiff does not cavil with the Minister’s statement of the principles and submits that, even in the absence of acceptable explanation, the circumstances make an order extending time necessary in the interests of the administration of justice by reason of the gravity of the consequences of leaving the decision to stand without examination of his claim that it is attended by jurisdictional error.

Where, as here, the decision that is sought to be impugned is the refusal of a protection visa, even inordinate delay may not tell against an order under s 486A(2) in the event that there are good reasons for finding that the decision is vitiated by jurisdictional error. Consideration of factor (iii) requires reference at some length to the plaintiff’s protection claims and the delegate’s reasons for the decision.

The plaintiff is an Iranian national. He left Iran in July 2012 and entered Australia as an “irregular maritime arrival” on 9 August 2012. On the basis of information provided in his initial entry interview prima facie the plaintiff was found to engage Australia’s protection obligations. On 7 November 2012, the then Minister exercised his powers under s 46A(2) of the Act to allow the plaintiff to apply for a protection visa. In late December 2012, the plaintiff lodged a valid application for the same.

The plaintiff expressed the fear that were he to return to Iran he would be persecuted on the ground of an imputed political opinion. His fear stemmed from an incident in 2009 in which he was caught up in an anti‑government demonstration in Vanak Square, Tehran. The plaintiff was not part of the demonstration. He had been walking home from work when the Iranian security forces opened fire on the demonstrators, wounding the plaintiff in the left leg. The plaintiff was taken to a nearby house where his leg was bandaged. He did not seek treatment for the wound at a hospital because he feared that the staff would notify the security forces and that he would be arrested and imprisoned as an anti‑government protestor. He made his way to the train and was collected by his friend who gave him a lift to the plaintiff’s home on a motorcycle. The wound was bleeding and there were bloodstains on his jeans. He received treatment for his wound at home from his cousin who is a doctor.

The day after the incident, the head of the local Basij, Haji Asghar, called at the plaintiff’s house looking for him. The plaintiff described the Basij as a militia that acts as an agent of the Iranian Government. The plaintiff believed that members of the Basij had seen the bloodstains on his jeans and suspected him of having participated in the demonstration. His father told Asghar that the plaintiff was not at home. The plaintiff spent the next month recovering from his wound at his aunts’ house in Karaj. Following his recovery, the plaintiff decided to undertake his compulsory military service as this would take him away from his usual place of residence. He enlisted in the military and served in it for around 15 months.

The plaintiff’s parents moved to another suburb in Tehran to escape harassment from the local Basij, who were still looking for him. Eventually his parents decided to move to Karaj. When he completed his military service, the plaintiff was unable to find work in Karaj and was forced to return to Tehran. He found, and remained in, employment in Tehran for about a year. This was a stressful and frightening time because the plaintiff was in constant fear that the local Basij would find him and hand him over to the police.

About two months before leaving Iran the plaintiff saw a member of the local Basij. The man looked surprised to see him. The plaintiff did not know the man’s name but he recognised him as a member of the local Basij controlled by Asghar. The man started talking on his mobile phone in an agitated way. The plaintiff believed that the mobile phone conversation concerned him and that the man knew that he, the plaintiff, was “wanted”. Immediately after this incident, the plaintiff resigned from his employment, went to Karaj, and made arrangements to leave Iran. He had a passport which he had received shortly after completing his military service. It took about two months for the plaintiff to sell his possessions and raise the money to travel to Australia.

The plaintiff stated that he could not return to Iran because he feared capture by the Basij who would hand him over to the police or other security forces. He feared that he would be accused of being an anti‑government agitator and that the bullet wound on his leg would be taken as proof of his involvement in the 2009 demonstration. He feared that he would be tortured and forced to confess to being an opponent of the Iranian Government and either imprisoned for a long time or that he would be “disappeared”, meaning that he would be killed. The plaintiff explained that the Iranian Government is unwilling to prevent the persecution of individuals by the Basij because the Government uses this group and other agencies to oppress and persecute the citizenry.

The delegate referred to country information which described Iran’s already poor human rights record as having further degenerated following the presidential election in June 2009. Hundreds of thousands of citizens were reported to have taken to the streets to protest the re‑election of President Mahmoud Ahmadinejad. The police and the Islamic Revolutionary Guard Corps‑controlled paramilitary Basij had violently suppressed them. Thousands of protesters had been detained, beaten and harassed. Many political activists detained at that time remained in prison at the time of the decision. “Lower profile activists” have been detained and prosecuted for expressing their political beliefs including by participating in political rallies. There are credible reports of abuses in prisons, including torture, in the aftermath of the protests.

The delegate concluded, on the basis of country information, that while in the past the Basij may have operated in a dysfunctional fashion, they have developed effective means of communication and of monitoring persons of interest. The delegate found that had the plaintiff been of “significant interest” to the Basij as claimed, he would have been questioned about his attendance at post‑election demonstrations while he was carrying out his military service. The delegate considered that the plaintiff’s account of his ability to escape detection by the Basij while he was in the military lacked credibility. She considered that were the plaintiff to have been a person of significant interest to the Basij he would have been identified during the enlistment process for military service. Country information in this respect indicated that enlistees are required to provide a range of documentation to the authorities and to complete various enlistment processes before commencing compulsory military service.

The delegate also took account of country information, which indicated that a number of security checks are conducted before it is possible for citizens to depart from Iran. The fact that the plaintiff was able to depart with relative ease was a further indication that he is a person of little or no significant interest to the Iranian authorities.

Next, the delegate referred to country information concerning the attitude of the Iranian authorities to citizens who convert to Christianity. Conversion amounts to a serious offence in Iran. Some Christian converts practise their religion discreetly and avoid being targeted by the authorities. A Western embassy reported that if a person acts in a discreet manner and does not attract the authorities' attention, a convert to Christianity would probably not experience any problems. The Iranian leader of a home church network considered that a person would be able to continue Christian activities if he or she was discreet about it.

The plaintiff did not base his claims to engage Australia’s protection obligations on his religious belief. Nonetheless, the delegate reviewed the plaintiff’s account of his conversion. In an interview on 19 November 2013 the plaintiff said that he converted to Christianity in January of that year. He was asked why he chose to convert and he responded that his Christianity was a “personal matter” unrelated to his claim to remain in Australia and for this reason he did not need to explain it. However, the plaintiff did respond to further questions on the topic. He explained that the Potters House Church had offered free English language classes that he had attended. His association with the Potters House Church had led the plaintiff to accept Christianity. He had been baptised. He declined to provide the Department with his baptismal certificate on the ground that it was a “personal thing” and did not form part of his case. He said that he had not told anyone in his family about his conversion because they are “older and would not understand”. He said that were he to return to Iran, the only difference in his practice of his religion would be that he could not attend church openly. He would have access to books on his religion and to YouTube Christian services. The interviewer asked if the plaintiff would have “any issues returning to Iran due to his new religion” and he responded that provided he did not talk about his religion, there would be no issues.

The delegate concluded:

“After carefully considering the [plaintiff’s] responses at interview which clearly indicate that he considers religion to be a personal matter and the independent country information cited above which clearly indicates that Christianity allows for private worship and those Christian converts in Iran who remain discreet can avoid being targeted by the authorities, I do not consider that the [plaintiff] would suffer harm or mistreatment of sufficient gravity as to amount to persecution for reasons of his conversion to Christianity.” (citations omitted)

The delegate was not satisfied that the plaintiff “has a real chance of being persecuted for a Refugees Convention reason” and it followed that she was not satisfied that the plaintiff’s fear of persecution is well founded. In the result, the plaintiff was found not to meet the criteria for the grant of a protection visa under s 36(2)(a) of the Act and sub‑cl 866.221(2) of Sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

Next, the delegate considered whether the plaintiff met the complementary protection criterion under s 36(2)(aa) of the Act, which requires satisfaction of the existence of substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm. Sub‑section (2A) of s 36 provides:

“A non‑citizen will suffer significant harm if:

(a) the non‑citizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the non‑citizen; or

(c) the non‑citizen will be subject to torture; or

(d) the non‑citizen will be subject to cruel or inhuman treatment or punishment; or

(e) the non‑citizen will be subjected to degrading treatment or punishment."

The delegate was satisfied that the plaintiff fears significant harm in Iran. She was not satisfied that there is a real chance of the plaintiff being subject to significant harm should he be returned to Iran. It followed that she was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the plaintiff being removed from Australia to Iran, there is a real risk that he will be subject to significant harm.

The plaintiff seeks to challenge the decision on three grounds. The first two grounds depend upon demonstration that the decision is legally unreasonable. The third ground contends that the delegate misconstrued s 36(2)(aa). The first ground is formulated in these terms:

“The Delegate at page 10, paragraph 2 of her decision was legally unreasonable by requiring the Plaintiff to conform to arbitrary standards in order for his account to be believed, or otherwise being legally unreasonable, in concluding that the Plaintiff would have been questioned in relation to post‑election demonstrations whilst carrying out military service and would have been identified as being of significant interest to the Basij during the enlistment process for military service.”

The contention that the delegate required the plaintiff to conform to arbitrary standards in order that his account be believed is, in truth, a challenge to the finding that plaintiff’s account of his ability to escape detection by the Basij while carrying out his compulsory military service lacks credibility. It may be accepted that the finding was critical to the delegate’s conclusion that the plaintiff’s fear of persecution is not well‑founded. The asserted unreasonableness in making the finding is said to arise because:

“There was no evidence that the Iranian Armed Forces were identical to the Basij, described by the Delegate as paramilitary, or the Revolutionary Guard, also referred to by the Delegate. Communication within the Basij or between the Basij and the Revolutionary Guard did not ground a conclusion that there would have been comprehensive and inevitably exercised lines of communication within the Iranian Armed Forces. The Delegate proceeded on this basis without justification or imposed the arbitrary standard that there would have been such communication with the result that the plaintiff was to be disbelieved.”

To succeed on his first ground the plaintiff would need to establish that the finding is irrational or unsupported by logical grounds such that no rational or logical decision‑maker could have arrived at it on the same material^[5]. As earlier noted, it would seem the delegate took into account a number of matters in drawing the inference that the plaintiff would not have escaped detection during his enlistment and service with the Iranian military had he been a person of interest to the Basij. These included the plaintiff”s account that the Basij is “a militia who [sic] acts as agents of the Iranian government” and that the government “uses the Basij and other security agencies to oppress and persecute people in Iran”; country information which pointed to the Basij as operating under the central control of the Islamic Revolutionary Guard Corps and as being an organised militia with the capacity to monitor persons of interest; and country information concerning the documentation required to be produced by military service enlistees and the checks carried out on them. It is not to the point to observe that another decision‑maker might not have drawn the same inference. It is a large proposition to hold that it was not open to the delegate to find on the material before her that the plaintiff was not a person of interest to the Iranian authorities.

The plaintiff’s second ground is formulated in these terms:

“The Delegate at page 13 paragraph 3 of her decision was legally unreasonable, in the context of considering whether the Plaintiff could modify his behaviour in order to avoid harm, by concluding that the Plaintiff would remain discreet in [practising] Christianity and not attend church for reasons other than the fear of harm.”

The delegate’s analysis did not proceed upon the assumption that the plaintiff should modify his behaviour in Iran in order to avoid a risk of harm. The delegate made a factual finding that the plaintiff would practise his religion discreetly in Iran^[6]. The contention that the finding is irrational or unsupported by logical grounds is difficult to maintain in the face of the plaintiff’s repeated assertions that religion is a “personal” matter and the inferences that might reasonably be drawn from the fact that he has chosen not to tell his family of his conversion because they are “older and would not understand”. The delegate’s findings are based on the plaintiff’s evidence of his disposition and not upon the conduct of an hypothesised convert to Christianity in Iran^[7]. Pointedly the plaintiff did not claim to fear harm on the ground of his religion. Indeed, the plaintiff disavowed that his religion formed part of his claim to engage Australia’s protection obligations. In these circumstances there are formidable obstacles in the way of success on the plaintiff’s second ground.

The plaintiff’s third ground is formulated as follows:

“'The delegate ... misconstrued s 36(2)(aa) of the Migration Act 1958 (Cth) by not considering whether the Plaintiff’s harm was a necessary and foreseeable consequence on the ground that, while the harm could be avoided, doing so would entail a violation of the Plaintiff’s freedom of religion under Article 18 of the International Covenant of Civil and Political Rights 1966."

The plaintiff contends that the delegate wrongly reasoned that, as she had already rejected his claim to protection as a refugee, his claim to protection under s 36(2)(aa) must also fail. He submits that the delegate failed to appreciate that s 36(2)(aa) imposes a materially different test to the test of whether a person is a refugee under s 36(2)(a). The essence of the s 36(2)(aa) test is suggested to have required the delegate to ask whether the Plaintiff’s avoidance of harm would entail a violation of his right to freedom of religion under article 18 of the International Covenant on Civil and Political Rights 1966 (“the ICCPR”)^[8]. The plaintiff submits that it “borders on self‑evident” that, as he would be required to practise Christianity discreetly and without attending church in Iran, his rights under article 18 of the ICCPR are impaired.

It is accepted that the complementary protection criterion in s 36(2)(aa) serves to engage Australia's non‑refoulement obligations under international instruments other than the Refugees Convention^[9] including the ICCPR^[10]. This does not require the delegate to have determined whether the plaintiff met the s 36(2)(aa) criterion for the grant of a protection visa by asking whether his right to freedom of religion under article 18 of the ICCPR would be infringed were he to be returned to Iran. The question was whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Iran, there exists a real risk that the plaintiff will suffer “significant harm” for the purposes of s 36(2)(aa) of the Act. The delegate addressed the complementary protection criterion by reference to the language of the provision.

I accept the Minister’s submission that none of the plaintiff’s grounds have sufficient merit to warrant the exceptional course of extending time by some six years to enable the plaintiff to challenge the delegate's decision. I am not satisfied that it is necessary in the interests of the administration of justice to do so and it follows that the application must be dismissed.

Order

For these reasons there will be the following order:

The application is dismissed with costs.

AT 9.32 AM THE MATTER WAS CONCLUDED

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^[1] Migration Act 1958 (Cth), ss 5 and 474(2).

^[2] High Court Rules 2004 (Cth), r 13.03.1.

^[3] Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470 at 473-474 [13] per McHugh J; [2000] HCA 67; 177 ALR 491 at 495, citing Gallo v Dawson (1990) 64 ALJR 458 at 459 per McHugh J; 93 ALR 479 at 481.

^[4] Re Minister for Immigration and Multicultural Affairs; Ex parte Sithamparapillai [2004] HCA Trans 364 per Hayne J; Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCA Trans 279 per Crennan J; Plaintiff M196 of 2015 v Minister for Immigration and Border Protection [2015] HCA Trans 240 per Gordon J.

^[5] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 647‑648 [130]‑[131] per Crennan and Bell JJ.

^[6] Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 at 481 [10] per Gleeson CJ, 487 [34] and 490 [43] per McHugh and Kirby JJ, 500‑502 [80]‑[83] per Gummow and Hayne JJ.

^[7] Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 at 499‑500 [76]‑[77], 500‑501 [80]‑[81] per Gummow and Hayne JJ; Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 at 325 [17]‑[18] per French CJ, Hayne, Kiefel and Keane JJ.

^[8] International Covenant on Civil and Political Rights (1966).

^[9] Convention Relating to the Status of Refugees (1951).

^[10] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at 385‑386 [73] per Edelman J.