GLQ18 v Minister for Immigration and Multicultural Affairs

1. The application for an extension of time is dismissed.
2. The name of the first respondent is changed to Minister for Immigration and Multicultural Affairs.
3. The applicant is to pay the first respondent's costs of the application as taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NICHOLAS J: 1 Before the Court is an application for an extension of time to file a notice of appeal. The application for an extension of time was filed by the applicant 42 days after the time he was entitled to appeal the decision of the Federal Circuit Court of Australia (as it was then known) given on 17 March 2020. By that decision, the primary judge dismissed the applicant's application for review of a decision of the second respondent ("IAA") affirming a decision of a delegate of the first respondent ("the Minister") finding that the applicant did not satisfy either the refugee protection or complimentary protection criteria under s 36 of the Migration Act 1958 (Cth) ("the Act"). 2 The application for an extension of time is brought under r 36.05 of the Federal Court Rules 2011 (Cth). As Robertson, Steward and Thawley JJ said in BUD17 v Minister for Home Affairs (2018) 264 FCR 134 at [82]: In considering whether to exercise the discretion to extend time under r 36.05 of the Federal Court Rules 2011 (Cth), and recognising that the Court's discretion is unconfined and that each case turns on its own facts, relevant considerations generally include: the length of the delay; the applicant's explanation for the delay; whether the application for review would have any prospects of success if an extension of time were granted; and the prejudice, if any, which the respondent might suffer if an extension were granted… 3 The Minister accepts that he would suffer no prejudice if an extension of time were granted. The Minister also accepts that the applicant's delay of just over a month is insubstantial. Although the Minister raises some issues concerning the sufficiency of the applicant's explanation for that delay, the Minister's opposition to the application for an extension of time is primarily based on the merits of the applicant's proposed appeal. The Minister submitted that the appeal lacks legal merit and the application for an extension of time should be refused on that basis. 4 The sole ground of appeal relied upon by the applicant is ground 1 in the proposed amended notice of appeal accepted for filing on 6 February 2023, reproduced below: GROUND ONE The Learned Primary Judge erred in not finding that the IAA erred in concluding that the Appellant would return to Iran voluntarily in circumstances where (i) it was by not apparent from the Appellant's claim that he would voluntarily return to Iran under any circumstance and allow [sic] (ii) the country information clearly indicated that failed asylum seekers would only be returned if they volunteered. The premise underlying the IAA's reasoning in Paragraph 33 of the IAA decision is the Appellant's voluntary return, such that the IAA erroneously (i) assessed a claim that the Appellant had not made; and (ii) made a conclusion not supported by evidence Furthermore, and/or in the alternative, the IAA consequently failed to consider and assess whether the Appellant (i) could be forcibly removed to Iran; and (ii) would face serious and/or significant harm if he was forced to return to Iran as an Involuntary returnee given the substance of his protection claims and the fact that he would be returning to Iran as a failed asylum seeker. 5 It is accepted by the applicant that the point raised by ground 1 was not raised by him before the primary judge and that, accordingly, leave to rely on that ground is required if the applicant is to be permitted to rely on it in his proposed appeal. The fact that the proposed ground of appeal raises an issue not argued before the primary judge is a matter that is also relevant to the question whether an extension of time should be granted. 6 The applicant arrived in Australia on 13 June 2013. He applied for a Safe Haven Enterprise visa. He claimed that he was a stateless Faili Kurd from Iran. The applicant also claimed to have been involved in pro-Kurdish activities in Iran. On 21 September 2018, a delegate of the Minister refused to grant the applicant that visa. The delegate accepted that the applicant was of Kurdish ethnicity but was not satisfied that he had engaged in pro-Kurdish activities or that he would do so on return to Iran. 7 The applicant's case was referred to the IAA. The IAA affirmed the delegate's decision not to grant the applicant a protection visa. 8 The applicant's claims were summarised by the applicant's then solicitor and registered migration agent in a letter to the Department of Immigration and Border Protection dated 27 July 2018. Relevant to the proposed ground of appeal is a claim made in that letter concerning the risk of harm to a person returning to Iran as a failed asylum seeker. The letter states at para 4.7: An additional factor is [the applicant's] extended period abroad in a Western country, and the fact that he would be returning to Iran as a failed asylum seeker. We submit that this element of his profile is likely to elevate his risk, as it would result in increased suspicion as to what he was doing abroad, leading to an imputed political opinion of being in opposition to the Iranian regime. There is a considerable risk that Iranian authorities at the airport will be aware of [the applicant's] status as a failed returned asylum seeker. If he is questioned about this, he should not be expected to lie. The records of his immigration history in Australia, which he should not be expected to destroy, may come to the attention of the authorities. (Footnote omitted) 9 This claim was dealt with by IAA in two paragraphs of its reasons both of which are numbered [33] which I will identify as 33A and 33B. The IAA stated: 33A. It is claimed that because of the applicant's extended period abroad in a western country and the fact that he would be returning to Iran as a failed asylum seeker, he would be imputed with anti-government political opinion and will be harmed. I accept that the applicant will be returning to Iran without his passport and that by manner of his return, the authorities may be aware of the applicant's stay in Australia and that he sought asylum. The country information before me indicates that for the applicant to return to Iran, he is required to possess travel documents issued by Iranian diplomatic representatives. Historically, Iran does not issue travel documents to involuntary returnees who arrived in Australia when the applicant did. Therefore, I find that if the applicant were to return to Iran, it would be on voluntary basis. 33B. The country information considered by the delegate and cited in the decision does indicate that there are cases where failed asylum seekers have been arrested on return to Iran. However, the information refers to cases involving individuals with pre-existing profiles in Iran or individuals engaged in activities abroad that are considered against the Iranian regime. I do not consider the applicant to have such a profile. DFAT advises that voluntary returnees do not attract much interest amongst the large regular international movements of Iranians and that they will generally move quickly through airports. Where temporary travel documents are issued by Iranian diplomatic representatives' overseas, authorities at the airport will be forewarned about the person's return, but they will only be questioned if they had done something to attract the specific attention of the authorities. Further, according to international observers, Iranian authorities pay little attention to failed asylum seekers on their return to Iran and have little interest in prosecuting for activities conducted outside of Iran, including in relation to protection claims. This includes posting on social media, and unless the person has an existing profile with the authorities, the risk profile for the individuals will be the same as for any other person in Iran within that category. In light of the information before me and given my earlier findings about the applicant's lack of profile I do not accept that the applicant will be imputed with adverse political views or otherwise be considered of interest because he has claimed asylum in Australia, or that he would be accused of [being] a spy or a terrorist as claimed. I find the chances of the applicant being identified as a person of interest or having an adverse profile, or if questioned, such questioning entailing any harm, to be remote. (Footnotes omitted) 10 Counsel for the applicant submitted that the IAA misunderstood the applicant's claim in that it wrongly assumed that if the applicant were to return to Iran, he would do so voluntarily. It was submitted that the applicant was clear that he was unwilling to return to Iran voluntarily and that there was therefore no occasion for the IAA to consider what harm may be suffered by the applicant if he were to return to Iran voluntarily. Counsel for the applicant submitted that the IAA failed to properly consider a claim based on the harm the applicant may suffer if he were returned to Iran involuntarily, that the IAA's reasons are "silent on the fate of involuntary returnees", and that the IAA's consideration of his claims was incorrectly "premised on the applicant returning to Iran as a voluntary returnee". In essence, the submission was that the IAA did not consider the possibility that the applicant might be returned to Iran involuntarily and that it instead focused on the possibility that the applicant might return to Iran voluntarily, a possibility which it was said the applicant never raised. 11 The first observation I would make in relation to the applicant's submission is that it suggests that the applicant's claim was solely based on the possible consequences of an involuntary return. I do not accept that the applicant drew any clear distinction between involuntary return and voluntary return in his migration agent's submissions. Nor do I accept that the applicant's claim was implicitly confined to a claim based on an involuntary return. If the applicant did not satisfy the refugee protection or complimentary protection criteria based on his Kurdish ethnicity or his involvement in pro-Kurdish activities, then it would be necessary for the IAA to consider whether the applicant was at risk if returned to Iran whether voluntarily (due to his inability to obtain a visa permitting him to remain in Australia) or involuntarily (if he was forced to return). On that basis, there is nothing unusual or unexpected in the IAA considering in para 33B the possible consequences of a voluntary return. 12 That brings me to the applicant's principal point, namely, that the IAA did not consider the possibility that the applicant might be returned to Iran on an involuntary basis. In my opinion, this possibility was directly addressed by the IAA in para 33A of its reasons. On a fair reading of para 33A, the IAA has concluded that the applicant could not be returned to Iran except on a voluntary basis. 13 Counsel for the applicant relied heavily on the decision of Charlesworth J in CLS15 v Federal Circuit Court of Australia [2017] FCA 577 ("CLS15") which was said to support the applicant's analysis of the IAA's reasons in this case. Her Honour said at [60]: If the premise underlying the Tribunal's reasoning in paragraph 32 is that of a voluntary return, then it has erroneously assessed a claim the appellant had not in fact made. If the premise underlying its reasoning is that of an involuntary return, then that premise is not only inconsistent with the inference the Minister seeks to have drawn from paragraph 31, but gives rise to an alternative error: the Tribunal has not dealt with the claim that the appellant would necessarily come to the attention of the authorities, not merely after his forcible return but because of the forcible return. In my opinion, neither assumed premise can be safely attributed to the Tribunal. The proper inference is that the Tribunal has engaged in confused thinking resulting in a failure to make factual findings concerning the appellant's particular circumstances and a failure to apply the statutory criteria to the facts as found, particularly the criterion in s 36(2)(aa). 14 I do not accept that the IAA's reasons in this case are confused or deficient in any relevant respect. The suggestion that the IAA has considered a claim not made based on a possible voluntary return wrongly assumes that the claim made was by its terms limited to a possible involuntary return. Even if the claim as articulated by the applicant had been so limited, I am not persuaded that it would constitute a jurisdictional error for the IAA to consider that claim against the possibility that the applicant might return to Iran voluntarily provided the IAA also considered the possibility that he might be returned to Iran involuntarily. 15 The present case is similar to that considered by Banks-Smith J in DUP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1063. Having referred to the finding by the IAA that the appellant in that case would not be returned to Iran forcibly because Iran will not issue travel documents to facilitate involuntary returns, her Honour said at [71]-[74]: [71] Therefore, any further pursuit by the Authority of the potential consequences for the appellant in Iran because of any forcible removal and absent any travel documents was hypothetical. It is unclear what evidence the Authority could properly have considered about the consequences of the appellant's involuntary return, when the country information disclosed that no such returnees were being accepted by Iran at the time. Consideration of the purported consequences would likely have been speculative. [72] It is not the case that the Authority did not consider the question of forcible or involuntary return. It did so. It concluded that it did not accept that there is a real chance the appellant would be forcibly removed to Iran in the reasonably foreseeable future, thus undermining the fundamental premise upon which the claim was founded. Failure to embark upon a further process of speculation about the effects of hypothetical circumstances that the identified country information revealed would not arise, did not constitute jurisdictional error. From the reference to 'real chance'…it is apparent that the Authority had regard to the definition of 'well-founded fear of persecution' in s 5J(1) and found that the criteria were not met. [73] Therefore the only reason the appellant's claims of the consequences for her upon a return to Iran remained relevant was in the context of a voluntary return. That was the only way she might return to Iran. [74] The consequence of a voluntary return, a matter that by ground 1 of the amended notice of appeal the appellant contended needed to be addressed, was in fact addressed by the Authority. Indeed, it can be assumed that in the face of that ground of appeal, the appellant might have contended that the Authority would have erred if it had failed to continue to consider the claims in the context of a voluntary return. 16 Justice Banks-Smith distinguished CLS15 on the basis that it involved a claim by the appellant which the IAA did not consider. Her Honour found at [83] that the IAA had considered the appellant's claim and dealt with it unambiguously: see also DBO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1218 at [133]-[139] per Anderson J. I respectfully agree with Banks-Smith J's analysis which is directly applicable here. 17 The claim made by the applicant that he may suffer harm if he was to return to Iran as a failed asylum seeker (either as a voluntary or an involuntary returnee) was considered and rejected by the IAA. I do not think the applicant's proposed ground of appeal has sufficient merit to justify the extension of time sought. In the result, the application for an extension of time will be dismissed with costs. 18 Orders accordingly. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas.