1838172 (Refugee)

Case [2023] AATA 3027

1838172 (Refugee) [2023] AATA 3027 (8 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  

CASE NUMBERS:  1838172 and 2013623

COUNTRY OF REFERENCE:                   Iran

MEMBER:Jane Marquard

DATE:8 June 2023

PLACE OF DECISION:  Sydney

DECISION:For case number 1838172: the Tribunal remits the decision to refuse the applicant a Safe Haven Enterprise visa for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

For case number 2013623: The Tribunal sets aside the decision to refuse the applicant a Safe Haven Enterprise Visa and substitutes it with a decision that the visa application made on 9 April 2020 was not valid.

Statement made on 08 June 2023 at 7:57am.

CATCHWORDS

REFUGEE – Protection Visa – Iran – criminal conviction – political opinion – fear of the Basij militia – religion – conversion to Christianity – tattoos – has genuinely taken an interest in Christianity – returnee asylum seeker status – appearance – mental health issues – generally anti-regime and anti-Islamic views – effective protection measures are not available to the applicant –applicant’s second visa application is invalid – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 91, 499

Migration Regulations 1994, Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63           
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATIONS FOR REVIEW

  1. This decision relates to two separate applications for review.

  2. The first is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 18 July 2017 to refuse to grant the applicant an XE-Safe Haven Enterprise Visa (Subclass 790) under s 65 of the Migration Act 1958 (Cth) (the Act). This is matter number 1838172.

  3. The second is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 April 2020 to refuse to grant the applicant a protection visa under s 65 of the Act. This is matter number 2013623.

  4. The applications have been heard jointly by this Administrative Appeals Tribunal (the Tribunal) with the consent of the applicant as the claims and evidence are the same in each. The background to the applications is explained further later in this decision.

    OVERVIEW OF APPLICANT’S CIRCUMSTANCES

    Personal circumstances

    The applicant is a [age]-year-old man from Ardebil in Iran. His family (parents and [siblings]) live in Iran. The applicant has a [age]-year old son in Australia from a former relationship.  The applicant…

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1838172 (Refugee) [2023] AATA 3027
Case
[2023] AATA 3027
Decision Date

CaseChat Overview and Summary

This matter concerned an applicant seeking a Protection Visa, who had made two previous applications that were refused by the Department of Home Affairs. The applicant arrived in Australia in May 2013 and was initially granted a Temporary Safe Haven visa. His first application for a Safe Haven Enterprise Visa (SHEV) was refused on 18 July 2017, and his second SHEV application was refused on 3 September 2020. The Administrative Appeals Tribunal (AAT) was required to review these decisions.

The primary legal issues before the Tribunal were whether the applicant's second visa application was valid, and if not, what the consequences were for the review of that decision. Additionally, the Tribunal was required to consider the merits of the applicant's first visa application, which had been refused on grounds including the genuineness of his conversion to Christianity and the credibility of his claims of persecution by the Basij militia due to tattoos and alleged Satanism. The Tribunal also had to consider the impact of the applicant's criminal convictions in Australia on his claims.

The Tribunal found that the applicant's second visa application was invalid because it was barred under section 48A of the Migration Act 1958 (Cth), and this bar had not been lifted by any Minister's determination under section 48B. Consequently, the Tribunal had no jurisdiction to consider the merits of the second application and was compelled to set aside the Department's refusal and substitute it with a decision that the application was invalid. Regarding the first application, the Tribunal noted that the Department's delegate had not been satisfied that the applicant had genuinely converted to Christianity or would be perceived as a Christian if returned to Iran, nor that he had a profile with Iranian authorities due to his tattoos or alleged Satanism. The Tribunal also noted that criminal charges and convictions were not considered by the Tribunal for credibility or protection criteria, but rather for background information.

The Tribunal set aside the Department's refusal of the second visa application and substituted it with a decision that the second application was invalid. The Tribunal's decision did not make final orders regarding the first application, but rather outlined the findings of the Department's delegate in relation to that application.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Tribunal has not taken these criminal charges or convictions into consideration in respect of the applicant’s credibility as to his claims for protection, or as to whether the applicant meets the refugee or complementary protection criteria. Matters of character are not considered by this Tribunal although character may be an issue for the Department of Home Affairs (Department) to consider. The documents relating to the applicant’ criminal charges and convictions are only relevant to issues such as the applicant’s background and why he has been in prison or detention, and the opportunities he has had for Christian practice during these times. The Tribunal also makes no findings in regard to his claims of being targeted by the police or judiciary given that the Tribunal has no additional evidence about this. The Tribunal does accept that he feels frustrated and hostile towards authorities in Australia.BACKGROUND TO THE DECISIONS BY THE DEPARTMENT TO REFUSE THE FIRST AND SECOND APPLICATIONS The applicant first arrived in Australia on [date] May 2013 by boat from Indonesia without a visa. He arrived at the Territory of Ashmore and Cartier Islands, a remote reef located between Western Australia and Indonesia. He was classified by the Department as an ‘unauthorised maritime arrival’ as defined in s 5AA of the Act, based on arrival method. The applicant was taken into Darwin Immigration Detention Centre on [date] June 2013 where he was interviewed by a Departmental officer. In 2018, in DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Act). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant him a Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal. On 25 July 2013 the applicant was granted a Temporary Safe Haven (Subclass UJ 449-Humanitarian Stay) visa. At the time this was thought to trigger a statutory bar in s 91K of the Act, which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined in 2021 by the full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands. The applicant applied for an XE - Safe Haven Enterprise Visa (Subclass 790) on 9 November 2016. The applicant initially claimed protection based on fear of the Basij militia. He claimed he would be targeted because of his tattoos, allegations of Satanism, and his conversion to Christianity. This application was refused by the Department on 18 July 2017 and is the first application being reviewed by this Tribunal. The applicant was advised of his right to seek review of the decision of the Department dated 18 July 2017 to this Tribunal under Part 7 of the Act. The applicant then applied for review by this Tribunal of the decision dated 18 July 2017 to refuse the XE - Safe Haven Enterprise Visa (Subclass 790).

Evidence

Evidence Before The Court

In the first application, the delegate of the Department, in a decision dated 18 July 2017, did not accept that the applicant had genuinely converted to Christianity, even though he may have attended church occasionally. The delegate also did not accept that he would practise Christianity if he returned to Iran nor that he would be perceived as a Christian. The delegate was not satisfied that the applicant had a profile with the Basij or Iranian authorities due to his tattoos or the evidence of a video about Satanism. EVIDENCE The Tribunal has considered evidence before the Department and Tribunal including the following:· Certified copy of Islamic Republic of Iran national identity card/certificate.· Certified copy of Islamic Republic of Iran military service completion card.· Baptism Certificate dated [date] August 2013 from [Church 1].· Arrival and Induction Interview notes – [file number] (‘Entry Interview’) dated 23 June 2013.· Birth Certificate of applicant’s son dated [date].· Application for Safe Haven Enterprise Visa (SHEV) dated 9 November 2016 (‘2016 SHEV application’).· Medical documents dated 2016/17 relating to the applicant’s partner.· Support letter from partner undated. · Submissions to the Department dated 7 June 2017.· Information provided by representative dated 10 July 2017 in relation to the applicant’s church.· Notes of an interview with the pastor of [Church 2], on 11 July 2017. · Decision of Department dated 18 July 2017 (‘2017 Department decision’).· Statutory Declarations of the applicant dated 8 and 14 August 2017 (2017 Statutory Declarations).· Statutory Declaration of the applicant’s partner dated 8 August 2017.· Report dated 9 September 2017 by [Mr A], psychotherapist and registered psychologist ([Mr A] Psychology Report 2017).· Christmas family photograph of the applicant’s family in Australia.· 32 pages of screenshots of the applicant’s [social media] posts and 22 videos of [social media] posts.· Media reports provided by the applicant. · IAA decision dated 14 March 2018.· Detention Client Interview, [29] October 2019.· Letter from [a named person] at [a] Hospital dated 9 December 2019 stating that the applicant had suffered trauma in his right [eye].· Notification of incorrect answers, Form 1023, Department of Home Affairs, stating that the applicant was convicted of an offence in Australia and is unable to remember the details.· Psychological assessment by [Ms B], clinical psychologist [Organisation 1] dated 18 December 2019 ([Ms B] Psychological Report 2019).· Letter from [Mr C], co-ordinator of Villawood Pastoral Care Group dated 25 March 2020.· Letter from [Mr D], organiser of bible study classes at Villawood, undated.· Report by [Ms E], social worker [Organisation 1] dated 29 March 2020 ([Ms E] Social Work Report March 2020).· Two photographic images of the applicant’s side profile showing tattoos from shoulder to forearm.· Application for Safe Haven Enterprise Visa dated 9 April 2020 (SHEV application 2020).· Statements from applicant’s de facto partner dated 21 April 2020 (Partner Statement April 2020). · Supplementary statement dated 28 April 2020 (April 2020 Statement).· Copy of a form completed by the applicant on 1 May 2020 requesting from VIDC that bible study classes be reinstated.· Emergency Department referral [dated] 25 May 2020 referring to applicant having pain in eye and left ear.· NSW Police Force, District Court Report, dated [May] 2020 outlining applicant’s criminal record.· Statement from applicant’s former partner dated 1 June 2020.· Notes of interview with a delegate of the Department dated 2 June 2020.· Email from former partner dated 2 June 2020 to [a school] accepting offer of enrolment.· Emergency Department discharge referral dated 15 June 2020 by [a named person], indicating that applicant attended [a] Hospital to request eye surgery.· Letter by [a named doctor], [a hospital] dated 15 June 2020 stating that the applicant had suffered an eye injury and referring him to neurology or eye clinic.· Letter from [Pastor A] of [a church] dated 19 June 2020. · Email from [Mr F], [Church 3].· Three photographic images of the applicant showing tattoos on his arms.· A collection of materials used for bible study.· Summary of treatment reports of [Ms E] of [Organisation 1] dated 29 March 2020 to 29 June 2020. The reports indicate that the applicant had reported symptoms of post-traumatic stress disorder (PTSD) and treatment included focusing on stress reduction, management of thinking and addressing symptoms.· Letter of support from Pastor [B] from [Church 3] dated 4 July 2020, stating that the applicant was an active and consistent member and had regularly attended [a] compound for Sunday Services and Thursday bible study and invites other detainees to attend.· Letter from the Department to the applicant dated 10 June 2020.· Supplementary statement of the applicant 3 July 2020 (Supplementary statement July 2020).· Photographic images of the applicant and others at bible study.· Decision of the Department dated 3 September 2020 in relation to matter 2013623 (Department decision September 2020). The delegate did not accept various claims, including that incidents took place at [Venue 1]. The delegate accepted that the applicant was a non-practising Muslim, but due to inconsistent and vague evidence did not accept that he had practised Christianity in Iran or that he was a genuine convert in Australia.

Decision

Reasons for decision

This second application was refused by the Department on 3 September 2020. This is the decision the subject of the second application for review. FINDINGS IN RELATION TO THE DECISION OF THE DEPARTMENT TO REFUSE THE SECOND APPLICATION The second visa application is, and always was, barred under s 48A, for the reasons set out above. The s 48A bar had not been lifted because the applicant was not in the scope of the Minister’s s48B determination. Accordingly, the second visa application is invalid. The Tribunal has no option other than to set aside the delegate’s refusal of the second visa application and substitute it with a decision that the second visa application is invalid.CONSIDERATION OF THE DECISION OF THE DEPARTMENT TO REFUSE THE FIRST APPLICATION In the first application, the delegate of the Department, in a decision dated 18 July 2017, did not accept that the applicant had genuinely converted to Christianity, even though he may have attended church occasionally. The delegate also did not accept that he would practise Christianity if he returned to Iran nor that he would be perceived as a Christian. The delegate was not satisfied that the applicant had a profile with the Basij or Iranian authorities due to his tattoos or the evidence of a video about Satanism. EVIDENCE The Tribunal has considered evidence before the Department and Tribunal including the following:· Certified copy of Islamic Republic of Iran national identity card/certificate.· Certified copy of Islamic Republic of Iran military service completion card.· Baptism Certificate dated [date] August 2013 from [Church 1].· Arrival and Induction Interview notes – [file number] (‘Entry Interview’) dated 23 June 2013.· Birth Certificate of applicant’s son dated [date].· Application for Safe Haven Enterprise Visa (SHEV) dated 9 November 2016 (‘2016 SHEV application’).· Medical documents dated 2016/17 relating to the applicant’s partner.· Support letter from partner undated. · Submissions to the Department dated 7 June 2017.· Information provided by representative dated 10 July 2017 in relation to the applicant’s church.· Notes of an interview with the pastor of [Church 2], on 11 July 2017. · Decision of Department dated 18 July 2017 (‘2017 Department decision’).· Statutory Declarations of the applicant dated 8 and 14 August 2017 (2017 Statutory Declarations).· Statutory Declaration of the applicant’s partner dated 8 August 2017.· Report dated 9 September 2017 by [Mr A], psychotherapist and registered psychologist ([Mr A] Psychology Report 2017).· Christmas family photograph of the applicant’s family in Australia.· 32 pages of screenshots of the applicant’s [social media] posts and 22 videos of [social media] posts.· Media reports provided by the applicant. · IAA decision dated 14 March 2018.· Detention Client Interview, [29] October 2019.· Letter from [a named person] at [a] Hospital dated 9 December 2019 stating that the applicant had suffered trauma in his right [eye].· Notification of incorrect answers, Form 1023, Department of Home Affairs, stating that the applicant was convicted of an offence in Australia and is unable to remember the details.· Psychological assessment by [Ms B], clinical psychologist [Organisation 1] dated 18 December 2019 ([Ms B] Psychological Report 2019).· Letter from [Mr C], co-ordinator of Villawood Pastoral Care Group dated 25 March 2020.· Letter from [Mr D], organiser of bible study classes at Villawood, undated.· Report by [Ms E], social worker [Organisation 1] dated 29 March 2020 ([Ms E] Social Work Report March 2020).· Two photographic images of the applicant’s side profile showing tattoos from shoulder to forearm.· Application for Safe Haven Enterprise Visa dated 9 April 2020 (SHEV application 2020).· Statements from applicant’s de facto partner dated 21 April 2020 (Partner Statement April 2020). · Supplementary statement dated 28 April 2020 (April 2020 Statement).· Copy of a form completed by the applicant on 1 May 2020 requesting from VIDC that bible study classes be reinstated.· Emergency Department referral [dated] 25 May 2020 referring to applicant having pain in eye and left ear.· NSW Police Force, District Court Report, dated [May] 2020 outlining applicant’s criminal record.· Statement from applicant’s former partner dated 1 June 2020.· Notes of interview with a delegate of the Department dated 2 June 2020.· Email from former partner dated 2 June 2020 to [a school] accepting offer of enrolment.· Emergency Department discharge referral dated 15 June 2020 by [a named person], indicating that applicant attended [a] Hospital to request eye surgery.· Letter by [a named doctor], [a hospital] dated 15 June 2020 stating that the applicant had suffered an eye injury and referring him to neurology or eye clinic.· Letter from [Pastor A] of [a church] dated 19 June 2020. · Email from [Mr F], [Church 3].· Three photographic images of the applicant showing tattoos on his arms.· A collection of materials used for bible study.· Summary of treatment reports of [Ms E] of [Organisation 1] dated 29 March 2020 to 29 June 2020. The reports indicate that the applicant had reported symptoms of post-traumatic stress disorder (PTSD) and treatment included focusing on stress reduction, management of thinking and addressing symptoms.· Letter of support from Pastor [B] from [Church 3] dated 4 July 2020, stating that the applicant was an active and consistent member and had regularly attended [a] compound for Sunday Services and Thursday bible study and invites other detainees to attend.· Letter from the Department to the applicant dated 10 June 2020.· Supplementary statement of the applicant 3 July 2020 (Supplementary statement July 2020).· Photographic images of the applicant and others at bible study.· Decision of the Department dated 3 September 2020 in relation to matter 2013623 (Department decision September 2020). The delegate did not accept various claims, including that incidents took place at [Venue 1]. The delegate accepted that the applicant was a non-practising Muslim, but due to inconsistent and vague evidence did not accept that he had practised Christianity in Iran or that he was a genuine convert in Australia.

Ratio Decidendi

Legal Principle Established

The second visa application is, and always was, barred under s 48A, for the reasons set out above. The s 48A bar had not been lifted because the applicant was not in the scope of the Minister’s s48B determination. Accordingly, the second visa application is invalid. The Tribunal has no option other than to set aside the delegate’s refusal of the second visa application and substitute it with a decision that the second visa application is invalid.CONSIDERATION OF THE DECISION OF THE DEPARTMENT TO REFUSE THE FIRST APPLICATION In the first application, the delegate of the Department, in a decision dated 18 July 2017, did not accept that the applicant had genuinely converted to Christianity, even though he may have attended church occasionally. The delegate also did not accept that he would practise Christianity if he returned to Iran nor that he would be perceived as a Christian. The delegate was not satisfied that the applicant had a profile with the Basij or Iranian authorities due to his tattoos or the evidence of a video about Satanism. EVIDENCE The Tribunal has considered evidence before the Department and Tribunal including the following:· Certified copy of Islamic Republic of Iran national identity card/certificate.· Certified copy of Islamic Republic of Iran military service completion card.· Baptism Certificate dated [date] August 2013 from [Church 1].· Arrival and Induction Interview notes – [file number] (‘Entry Interview’) dated 23 June 2013.· Birth Certificate of applicant’s son dated [date].· Application for Safe Haven Enterprise Visa (SHEV) dated 9 November 2016 (‘2016 SHEV application’).· Medical documents dated 2016/17 relating to the applicant’s partner.· Support letter from partner undated. · Submissions to the Department dated 7 June 2017.· Information provided by representative dated 10 July 2017 in relation to the applicant’s church.· Notes of an interview with the pastor of [Church 2], on 11 July 2017. · Decision of Department dated 18 July 2017 (‘2017 Department decision’).· Statutory Declarations of the applicant dated 8 and 14 August 2017 (2017 Statutory Declarations).· Statutory Declaration of the applicant’s partner dated 8 August 2017.· Report dated 9 September 2017 by [Mr A], psychotherapist and registered psychologist ([Mr A] Psychology Report 2017).· Christmas family photograph of the applicant’s family in Australia.· 32 pages of screenshots of the applicant’s [social media] posts and 22 videos of [social media] posts.· Media reports provided by the applicant. · IAA decision dated 14 March 2018.· Detention Client Interview, [29] October 2019.· Letter from [a named person] at [a] Hospital dated 9 December 2019 stating that the applicant had suffered trauma in his right [eye].· Notification of incorrect answers, Form 1023, Department of Home Affairs, stating that the applicant was convicted of an offence in Australia and is unable to remember the details.· Psychological assessment by [Ms B], clinical psychologist [Organisation 1] dated 18 December 2019 ([Ms B] Psychological Report 2019).· Letter from [Mr C], co-ordinator of Villawood Pastoral Care Group dated 25 March 2020.· Letter from [Mr D], organiser of bible study classes at Villawood, undated.· Report by [Ms E], social worker [Organisation 1] dated 29 March 2020 ([Ms E] Social Work Report March 2020).· Two photographic images of the applicant’s side profile showing tattoos from shoulder to forearm.· Application for Safe Haven Enterprise Visa dated 9 April 2020 (SHEV application 2020).· Statements from applicant’s de facto partner dated 21 April 2020 (Partner Statement April 2020). · Supplementary statement dated 28 April 2020 (April 2020 Statement).· Copy of a form completed by the applicant on 1 May 2020 requesting from VIDC that bible study classes be reinstated.· Emergency Department referral [dated] 25 May 2020 referring to applicant having pain in eye and left ear.· NSW Police Force, District Court Report, dated [May] 2020 outlining applicant’s criminal record.· Statement from applicant’s former partner dated 1 June 2020.· Notes of interview with a delegate of the Department dated 2 June 2020.· Email from former partner dated 2 June 2020 to [a school] accepting offer of enrolment.· Emergency Department discharge referral dated 15 June 2020 by [a named person], indicating that applicant attended [a] Hospital to request eye surgery.· Letter by [a named doctor], [a hospital] dated 15 June 2020 stating that the applicant had suffered an eye injury and referring him to neurology or eye clinic.· Letter from [Pastor A] of [a church] dated 19 June 2020. · Email from [Mr F], [Church 3].· Three photographic images of the applicant showing tattoos on his arms.· A collection of materials used for bible study.· Summary of treatment reports of [Ms E] of [Organisation 1] dated 29 March 2020 to 29 June 2020. The reports indicate that the applicant had reported symptoms of post-traumatic stress disorder (PTSD) and treatment included focusing on stress reduction, management of thinking and addressing symptoms.· Letter of support from Pastor [B] from [Church 3] dated 4 July 2020, stating that the applicant was an active and consistent member and had regularly attended [a] compound for Sunday Services and Thursday bible study and invites other detainees to attend.· Letter from the Department to the applicant dated 10 June 2020.· Supplementary statement of the applicant 3 July 2020 (Supplementary statement July 2020).· Photographic images of the applicant and others at bible study.· Decision of the Department dated 3 September 2020 in relation to matter 2013623 (Department decision September 2020). The delegate did not accept various claims, including that incidents took place at [Venue 1]. The delegate accepted that the applicant was a non-practising Muslim, but due to inconsistent and vague evidence did not accept that he had practised Christianity in Iran or that he was a genuine convert in Australia.