ACN15 v Minister for Immigration

[2017] FCCA 296

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACN15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 296

Catchwords:
MIGRATION – Application for judicial – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth).

Cases cited:

ADK15 v The Minister for Immigration and Border Protection (2015) FCA 1187

Appellant S359 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473

Applicant: ACN15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 425 of 2015

Judgment of: Judge Riethmuller

Hearing date: 31 January 2017

Date of Last Submission: 31 January 2017

Delivered at: Melbourne

Delivered on: 24 February 2017

REPRESENTATION

Counsel for the Applicant: Ms Levine

Solicitors for the Applicant: Victoria Legal Aid

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The name of the Second Respondent be amended to the Administrative Appeals Tribunal.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 425 of 2015

ACN15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter arrived in Australia by boat as an ‘irregular maritime arrival’ on 23 July 2012.  The applicant made his initial protection claims in the course of an entry interview and applied for a protection visa on 21 November 2012.

2. The applicant was interviewed by a delegate for the Minister in August 2013, who refused his application for the grant of a visa on

   
   

   4 September 2013.  The applicant sought review by the Tribunal in September 2013, and following written submissions and a hearing in January 2015, the Tribunal dismissed the applicant’s application and affirmed the delegate’s decision.  The Tribunal’s decision was made on 2 February 2015, following which the applicant sought judicial review in this Court.

3. The applicant made claims before the Tribunal that he would be persecuted due to an imputed political opinion against the Iranian authorities, as a result of his religious beliefs, and as a result of being a member of a particular social group, namely failed asylum seeker returnees from Western countries.

4. Counsel for the Minister fairly summarises the applicant’s claims as follows:

   8.1. [The applicant] is an atheist and faces potential harm from the state and his father (who is a strict Muslim and had threatened to report the applicant to the authorities).  He was unable to keep his job working for a quasi-government entity because he as an atheist and the job required religious observance.  While in that job he had refused to stop political protests in 2009.  He claimed to be especially likely to be targeted for being an atheist because of this previous employment.  The applicant made general claims that he was being followed, but he did not know by whom.

   8.2. The applicant was a failed asylum seeker who was associated with a Western country.  He had previously travelled to Indonesia in an attempt to seek asylum, but had been deported back to Iran.  Later, in July 2011 he attempted to leave Iran again and was stopped at the airport.  He finally left on a fake passport, and he claims that the person who provided him with the passport has now taken legal proceedings against him in the Iranian courts.

5. The Tribunal accepted that the applicant was an Iranian national and worked as a security guard from 2006 to 2010 in a quasi-government organisation, although the Tribunal did not accept that he was actually an employee of the military. It was also accepted that following a trip to Dubai, for which he had not sought his employer’s authorisation before travelling, he was two to three months later asked to resign from his job, which he did so because he did not want to continue working there in any event (see para.16).

6. The applicant also relied upon documents, apparently being a police notice and Court summons from 2013, however the Tribunal rejected the veracity of this evidence (see para.21).

7. The applicant outlined a problematic relationship with his father, however the Tribunal concluded that he was not at risk of serious harm from his father (see paras.22 to 24), noting that he had returned to live with his father after he had earlier been deported from Indonesia, before he again left Iran to come to Australia.

8. Importantly, the Tribunal accepted that the applicant does not practise Islam and considers himself to be an atheist (see para.26).  The Tribunal went on to say:

   26. The applicant has consistently claimed to have been brought up in a Muslim family but to not believe in Islam and describes himself as an atheist.  The applicant states in his written claims that his issues with Islam go back to his childhood when he was sexually assaulted by older men at the mosque and claims that more recently his beliefs have brought him into conflict with his deeply religious father and also caused him problems in his former workplace in Iran.  The Tribunal accepts the applicant’s evidence that he did not practise Islam in Iran and that he considers himself to be of no religion and an atheist.

   27. However the Tribunal does not accept there to be a real chance that the applicant will face serious harm for reasons of his religious beliefs if he returns to Iran, now or in the foreseeable future.  In making this assessment the Tribunal notes DFAT’s advice that atheists in Iran are unlikely to come to the attention of security authorities unless they seek to publicise their views and that it was unaware of any recent charges against individuals for being atheists (Department of Foreign Affairs 2013 DFAT Country Information Report: Iran 29 November at 3.48).  The delegate’s decision refers to earlier DFAT information indicating that millions of Iranians born to Muslim parents do not attend mosque or perform daily prayers, that Iran’s Muslim population has a weekly mosque attendance rate of less than 30% of the population with those figures being even lower in Tehran (Protection Visa Decision Record dated 4 September 2013 at p.11).

   28. At hearing the applicant responded to this information by stating that this might be the case for ordinary people but that as a military staff member he would be treated differently.  For the reasons set out below, the Tribunal does not accept that the applicant is a military officer or that his former employer Bonyad Taavon Naja is a military organisation.  For the reasons set out in detail in the following paragraphs, the Tribunal does not accept that the applicant has at any time been of adverse interest to the Iranian authorities even though his evidence is that they have been aware of his lack of religious beliefs since he left that part of his employment form asking about his religion blank when he commenced his employment at Naja in 2006, six years prior to his latest departure from Iran.  The Tribunal does not accept that the applicant’s religious views will come to the adverse attention of the Iranian authorities in the future, nor cause him to be viewed as an apostate and harmed on that basis.  It follows that the Tribunal does not accept that the applicant has a well-founded fear of persecution for reasons of his religious beliefs if he returns to Iran, now or in the foreseeable future.

9. The ground for judicial review in this case is drawn as follows:

   The Tribunal failed to consider whether the Applicant will not publicise his anti-religious views in Iran because of a fear of persecution by the Iranian authorities, and thereby constructively failed to exercise its jurisdiction and/or failed to discharge its statutory task with respect to the criterion for protection in s.36(2)(a) of the Act.

   Particulars

   (a) The Applicant claimed to fear harm in Iran by reason of being an atheist with anti-religious views.

   (b) The Tribunal accepted that the Applicant did not practise Islam and was an atheist.

   (c) The Tribunal concluded that atheists in Iran are unlikely to come to the attention of the security authorities unless they seek to publicise their views.

   (d) The Tribunal concluded that the Applicant’s lack of religious beliefs will not come to the attention of the Iranian authorities and that the Applicant will not be targeted for serious harm for the separate or combined reasons of his religion or political opinion.

   (e) Inherent in the Tribunal’s conclusions was a finding that the Applicant will not seek to publicise his anti-religious views.

   (f) However, the Tribunal failed to consider whether the Applicant’s decision not to publicise or overtly demonstrate his views on religion would be motived by a fear of harm from the Iranian authorities.

10. The case, as developed by counsel for the applicant was run as one analogous to that which was decided by Bennett J in ADK15 v The Minister for Immigration and Border Protection (2015) FCA 1187. In that decision, Bennett J highlighted that:

    73. However, the Tribunal was then faced with the claim arising during the hearing: that irrespective of his claimed past and future political and associated religious activities, the appellant, as an agnostic, would wish to make his religious views public and that he could not do so in Iran for fear of the consequences.  That claim did not depend on the politically associated religious claims.  The Tribunal was obliged to consider whether the appellant would refrain from such asserted desired behaviour for fear of persecution in Iran.  It did not do so and did not consider this aspect of the appellant’s claims.  That failure constituted jurisdictional error.  The Federal Circuit Court Judge was therefore in error in dismissing the application for review of the Tribunal’s decision on the basis of absence of jurisdictional error.

11. Counsel identified that the evidentiary basis of this finding by Bennett J is that set out in para. 37 of her Honour’s decision, where her Honour recounts:

    37. The appellant points to the following aspects of his claims:

    ·He asserted in his written submissions that he is required to hide his religious identity.

    ·When asked whether he was motivated ‘to go out in the street and declare that you’re not Muslim’, he replied ‘I didn’t dare to do such a thing, because if you do that of course you will sign your death penalty actually’.

    ·The appellant submitted a statement that if he can keep his views ‘in-inside [himself] of course nothing would happen to[him] but if [he is] involved in any conversation and then talk[s] about [his] ideas then [he] would be in trouble’. This statement, the appellant says, amounted to a claim that his behaviour was modified by a fear of persecution.

    ·The written submission to the Tribunal, that it must consider what would happen to the appellant if he were to return to Iran as a politically active and vocal agnostic eager to influence the views of other Iranians about Islam.

12. In short, in the case determined by Bennett J there was an express statement that the applicant could “keep his views ‘inside’”, but that ADK15 would “be in trouble” if he was involved in any conversation about his ideas.  Her Honour accepted that this was an express claim that his behaviour was modified by a fear of persecution.  ADK15 had also said that he would not dare go out on the street and declare that he was not a Muslim because of fear of harm.

13. Counsel for the applicant was asked to identify the statements in the material that gave rise to a claim of this type in this case.  Counsel referred to nine passages, and it is appropriate that I set them out.

    a)In his initial statement at Court Book p.66, the applicant said in a statutory declaration:

    Leadership of the Country is a dictatorship, and we have to follow their orders.  We don’t have the right to say anything against the regime or leadership because we will be harmed.  During the month of Muharram the people hit themselves as a symbol of the anniversary of Imam Hussain.  I did not agree with this way of following the Islam religion.

    b)At p.67 of the Court Book, the applicant continued in the statutory declaration:

    The people in my previous village I lived in was aware of my anti-religion views and informed my employer the same.  They have been told by the community that I was spreading other religious views other than Islam.  In the Qur’an it states that the punishment for changing your religion will – you will be subjected to death.

    c)At p.68 of the Court Book, he stated that the reason he believes he will be harmed or mistreated if he returns is that:

    I believe that I will be tortured or killed because I do not follow the Muslim religion.

    d)At p.171 of the Court Book, the applicant in his migration agent’s submission says:

    The Applicant advises that he is fearful of returning to Iran due to his religious opinions as an atheist, which also results in him being imputed with anti-Government political opinions.

    The submission goes on to state:

    The applicant instructs that his opposition to Islam began in his childhood.  He instructs that he lived in a street that was within close proximity to a Mosque.  The Basij headquarters were located within the mosque.  …

    At the bottom of the page, the submission says:

    The Applicant instructs that he is now fearful of returning to Iran.  He advises that he will be tortured and killed because he does not follow the Islamic faith and has declared himself to be an atheist.  Further to this, he believes that he will also be seen as anti-regime for this reason as the Iranian law is based on Sharia.  The applicant’s act of denouncing Islam is against Sharia and therefore the Iranian government.

    e)At Court Book p.179, the submission states:

    Furthermore, the Applicant is a very opinionated person.  He will no doubt be conversing with people on a regular basis and there is no doubt that in the Islamic State of Iran religious talks would be a common discussion.  There is a real risk that the Applicant could be identified as a non-Muslim during such discussions and this may create serious problems for him.

    However we note that the authorities are likely to already possibly know of the Applicant’s political opinions after his employers had gained suspicions regarding same.

    f)At Court Book p.200, the submission states:

    The Applicant has provided evidence above that he no longer considers himself a Muslim but rather an atheist.  We submit that this is regarded as a crime in Islam and comes with severe punishment which is corroborated by country information contained within this submission.  Whilst the vast amount of country information is related to individuals who have converted to others faiths, the reason for their being targeted by the authorities is due to their lack of beliefs and criticism of Islam.

    Renouncing the Islamic faith and the act of proselytising is considered to be an apostasy in Iran and according to Sharia law is punishable by death or lifetime imprisonment, as reported in the RRT country information below.

    g)In the transcript of the Tribunal hearing at p.11, the applicant said:

    INTERPRETER: … I am an atheist, I don’t have any religious beliefs.  I have political opinions about my surroundings in my work area and the conversations that I have.  I think they (indistinct) for me because they used to always (indistinct).  They used to call me, ask my why you did that, why did you go, why did you come?  They were keeping an eye on me.  I was under their control, under their surveillance and I wasn’t – I didn’t have the freedom the other people did.

    h)In the transcript of the Tribunal hearing at p.18, the applicant said:

    INTERPRETER: As a military staff I had all these things, handcuffs, tearing gas, bottom, which is sort of stick, big stick.  I just didn’t have a weapon and I could cooperate with these people in arresting – I could cooperate with military service in arresting people.  I had the order, I have the order of authorisation for carrying all these items and arresting people.  Because I knew that there were people who were right and I was – I agreed with the people so I didn’t cooperate with the military and I didn’t do in arresting people.

    i)In the transcript of the Tribunal hearing at p.19, the applicant said:

    INTERPRETER: In Iran politics and religion are interrelated.  Politics – like in 1388 when I refused to cooperate in that situation it is considered a political opinion. 

14. To these above passages, counsel for the Minister adds the applicant’s comments at p.8 of the transcript where the applicant gives evidence that he has not hidden his atheist beliefs, saying:

    INTERPRETER: For example, in terms of – from this respect but, for example, I would shave my face and they were asking me why I shave my face and I shouldn’t.  They would interrogate me for everything, for my behaviour, why I say this, why I talk like this or like that.

    MEMBER: What sort of things?

    INTERPRETER: My personal beliefs.  I’m the sort of person who is not religious.  Also not taking part in the passage of the area that I was working and because I wasn’t taking part in their events they were curious about – curious to know why I wasn’t very interested.

    …

    INTERPRETER: … I had a few notices from them and I had some like cases and notices with regard to my – to me not taking part in their registered events, not fasting, not praying or leaving the country, going and travelling abroad because military person, you know, this is something that – sorry, military people are inhibited from going to other countries – travelling to other foreign countries.

15. In short, the case for the applicant is that one should infer from the passages above that he had raised an issue concerning his return to Iran on the basis that he would only be safe if he hid his views about religion.  On this basis, the applicant relies upon the principles set out in Appellant S359 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, in particular, at para.40, where McHugh and Kirby JJ said:

    40. The purpose of the Convention is to protect the individuals of every country from persecution on the grounds identified in the Convention whenever their governments wish to inflict, or are powerless to prevent, that persecution.  Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to State sponsored or condoned discrimination in social life and employment.  Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it.  But persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality.  The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps – reasonable or otherwise – to avoid offending the wishes of the persecutors.  Nor would it give protection to membership of many a “particular social group” if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution.  Similarly, it would often fail to give protection to people who are persecuted for reasons of race or nationality if it was a condition of protection that they should take steps to conceal their race or nationality.

16. As counsel for the applicant summarised in her outline, the question is whether the applicant would “wish to make his views public in Iran and would refrain from doing so for fear of persecution”.

1. The response to this argument from the Minister is that it asks the wrong question in the context of this case. The evidence before the Tribunal Member was that the applicant had not sought to hide or constrain his views in the past, and therefore there was no need to consider whether or not he would be required to modify his behaviour into the future in the context of the facts of this case.  The passages referred to above demonstrate that the applicant had not sought to hide or modify his views, in that clearly his employer was aware of his views, which were publicly identifiable by his decision to shave his beard, and that even villagers where he used to live near his father were also aware of his views. 

2. There is nothing in the above material to indicate that he was in fact constrained in expressing his views in the past; indeed, it is set out that he is a strong-willed person and would continue to express his views.  In these circumstances, it does not appear to me that the issue identified in Appellant S395 arises in this case because the applicant led no evidence to suggest that his past behaviour had been discreet or modified (a central feature of Appellant S395 as identified at paras.51 to 52), nor would be in the future.

3. As identified by Gummow and Hayne JJ at para.73, a decision must be based upon consideration of the situation of a particular applicant, and, as identified at para.82, there is a difference between a conclusion that an applicant would live discreetly and a conclusion that there should be an expectation that an applicant would live discreetly in order to avoid harm.  In the present case, the applicant had not lived discreetly in the past, nor had he provided evidence that there were behaviours that he had not engaged in in the past that he was likely to engage in in the future that might place him at risk.

4. Counsel for the applicant sought to place significant weight upon the use of the word “publicise” in the decision of the Tribunal at para.27 of the reasons (set out above).  Evidence of the content of the Department of Foreign Affairs’ 2013 DFAT Country Information Report on Iran, footnoted in support of the comment using the word “publicise” was provided after the hearing (and marked Exhibit ‘1’).  Counsel said that the word “publicise” as used in the decision and report should take its ordinary meaning but was noncommittal with respect to whether that would mean “publicise” in the sense of a publicity campaign or equivalent, or simply “allow views to be known among those that one comes into contact with”.  It is noted that there are many Iranians who do not attend weekly mosque services, as the weekly attendance rate is less than 30 per cent of the population.  The relevant passage of the report is from para.3.48 which provides:

   Atheists are unlikely to come to the attention of security authorities unless they seek to publicise their views.  Iran’s Constitution states that an individual cannot be prosecuted simply for their beliefs.  Although DFAT is unaware of any recent charges of individuals for being atheists, it is legally possible for a person to be punished under the Penal Code for insulting the Prophet Muhammad or other prophets.  Punishments can range from lashes to the death penalty.

5. The context of the material appears to be one where ‘publicise’ means actions that seek to persuade others or insult other’s beliefs or make ones rejection of religion widely known.  Ultimately breadth of the term in its context is a matter of fact finding for the Tribunal.  In this case the issue was considered in a meaningful way.  In the circumstances it does not appear that the Tribunal committed jurisdictional error.

6. In substance, this case was presented to the Tribunal on the basis of the risk that the applicant was at, as a result of his way of life, which was accurately represented by his past behaviour.  Counsel for the applicant was not able to identify material to indicate that the past behaviour had been in some way modified such that the Tribunal needed to consider the principles in Appellant S395. 

7. In these circumstances, the application cannot succeed on the facts and circumstances of this particular case.  I therefore refuse the application. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 24 February 2017

Correction

Matter number on coversheet and first page of Reasons for Judgment changed to MLG 425 of 2015