AEP16 v Minister for Immigration

[2017] FCCA 1840

FEDERAL CIRCUIT COURT OF AUSTRALIA

AEP16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1840

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Iran – applicant not believed – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 91R

Minister for Immigration v SZJSS (2010) 243 CLR 164

Applicant: AEP16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 176 of 2016

Judgment of: Judge Driver

Hearing date: 22 June 2017

Delivered at: Sydney

Delivered on: 30 August 2017

REPRESENTATION

Counsel for the Applicant: Mr J Williams

Solicitors for the Respondents: Mr A Markus of Australian Government Solicitor

ORDERS

1. The application as amended in Court on 22 June 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 176 of 2016

AEP16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 7 January 2016. The Tribunal affirmed a decision of the delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. The following statement of background facts is derived from the submissions of the Minister filed on 14 June 2017.

3. The applicant claims to be a citizen of Iran. He entered Australia at Christmas Island as an unauthorised maritime arrival on 23 July 2012, and lodged a protection visa application with the Minister’s Department (Department) on 4 December 2012.[1]

   [1] Relevant Documents (RD) 20

4. The applicant’s claims essentially related to his alleged compulsory military service in the Basij,[2] to information he claimed to have disclosed about that service one time in a gym, and to his lack of Islamic faith and activities as an atheist on Facebook.

   [2] A paramilitary militia commonly known as the “morals police”

5. The applicant was interviewed by the delegate on 31 May 2013. The delegate made his decision on 11 October 2013, refusing the protection visa.[3]

   [3] RD 137

6. On 17 October 2013, the applicant applied to the Refugee Review Tribunal (RRT), as it then was, for a review of the delegate’s decision.[4]

   [4] RD 158

7. The RRT, as constituted, held a hearing in relation to the application on 2 April 2015.[5] On 1 July 2015, the RRT amalgamated with the Tribunal, and became the Migration and Refugee Division of the Tribunal. Following the amalgamation, the member who originally constituted the RRT was no longer available to complete the review, and the new member constituting the Tribunal held a further hearing on 30 November 2015.[6]

   [5] RD 169

   [6] RD 214

8. As already noted at [1] above, the Tribunal made its decision on 7 January 2016.[7]

   [7] RD 237

Tribunal decision

1. The Tribunal did not find the applicant to be a reliable, credible or truthful witness, and concluded that he fabricated his claims in order to be granted a protection visa.[8]

   [8] at [95]

2. In relation to the applicant’s claims concerning his military service, the Tribunal did not accept that the applicant served in the Basij, but found that he was conscripted into the Sepah.[9] The fact that the applicant claimed that he had to serve in the Basij to fulfil his military obligations was considered to be a significant factor in determining the applicant’s credibility and the credibility of his claims.

   [9] The Islamic Revolutionary Guard Corps

3. The Tribunal identified several instances where the applicant insisted that he was serving in the Basij, before eventually admitting during the second hearing that he was a Sepah member serving at a Basij base as a guard.[10]

   [10] at [98]

4. While the Tribunal was prepared to accept that the applicant served at a Basij base undertaking guard duties, it found the applicant’s account of his time there to lack credibility,[11] including his claims relating to:

   a)being able to access sensitive personal files, and burn them in the courtyard;[12]

   b)being able to claim that he may have lost the files when transferring them;[13]

   c)being privy to torture sessions conducted by Basijis;[14] and

   d)assisting a detainee who was questioned by the Basij and suffered from tear gas inhalation.[15]

   [11] at [99]

   [12] at [99]-[100]

   [13] at [101]-[102]

   [14] at [103]

   [15] at [104]-[105]

5. Because the Tribunal did not accept that the applicant served in the Basij or witnessed torture while serving in the Sepah, it also did not accept that the applicant got into an argument with an unknown person in a gym, as a consequence of which the Basij came looking for him.[16]

   [16] at [106]

6. The applicant’s claim that the Basij visited his home after he left Iran was also rejected on the basis that, given the earlier findings, the Tribunal did not accept that the Basij had any interest in the applicant.[17]

   [17] at [106]

7. The Tribunal noted the evidence of the applicant’s brother, but gave it little weight in view of the lack of the credibility of the applicant’s claims, and the fact that the brother was not considered by the Tribunal to be a disinterested or objective witness.[18]

   [18] at [109]

8. In relation to the applicant’s claims based on religion, the Tribunal was prepared to accept that he may be a non-observant Muslim, but it did not accept that he is an atheist.[19]

   [19] at [112]

9. The Tribunal noted that, while it is difficult to determine whether someone is non-observant, agnostic or atheist, given the credibility issues already established in relation to the applicant and his claims his actions appeared to the Tribunal to be “deliberate and targeted but not those of someone with a real fear based on a religious conviction (or in this case, the lack thereof)”.[20]

   [20] at [112]

10. The Tribunal noted that the only time the applicant chose to interact with atheists was when he joined an atheist Facebook page. While the Tribunal accepted this fact, it found that the applicant was not active on this site. It did not accept that the reasons for this were because the applicant did not yet have sufficient knowledge “to go public or because he had corresponded with someone on “Viper” (sic) and became scared once he didn’t hear back from them.”[21]

    [21] at [113]

11. The Tribunal also disbelieved as not credible the applicant’s claim that he forwarded a debate between Richard Dawkins and a Muslim to be translated on Viber, and that the person may have been an Iranian security authority, given the previous finding concerning the applicant’s credibility and the absence of a record of exchange, although it took place on Viber.[22]

    [22] at [114]

12. In relation to the applicant having posted his name on an atheist Facebook page, the Tribunal found that he did so for the sole purpose of strengthening his protection claims, and that in those circumstances s.91R(3) required it to disregard this conduct in determining whether the applicant has a well-founded fear of persecution.[23]

    [23] at [115]

13. The Tribunal was not satisfied that the applicant feared serious harm from Iranian authorities for being either an atheist or a non-observant Muslim. Based on country information, the Tribunal found that non-observant Muslims and atheists are able to live in Iran without coming to the attention of the authorities, and that the applicant will not come to such attention. As such, the Tribunal found that the applicant does not face a real chance of serious harm now or in the reasonably foreseeable future if he were to return to Iran.[24]

    [24] at [116]

14. The Tribunal then went on to consider whether the applicant would be harmed on return to Iran for being a failed asylum seeker.

15. In light of country information, and given its findings that the applicant had no political or criminal profile, the Tribunal concluded that he would be of no interest to authorities as anyone other than an individual returning on a different passport than that on which they left Iran.  The Tribunal noted that the applicant may be questioned, but that this would occur as part of the normal immigration process, and would not amount to serious harm.[25]

    [25] at [117]-[118]

16. The Tribunal concluded that, having regard to all the evidence, and the applicant’s claims both in isolation and cumulatively, the applicant did not have a well-founded fear of persecution for any Convention reason then or in the reasonably foreseeable future.[26]

    [26] at [119]

17. The Tribunal noted that, although (for the purposes of assessing the applicant’s Convention related claims) it had disregarded the applicant’s claims regarding his atheist Facebook entry and having forwarded a Dawkins video via Viber to an unknown person, it did have regard to these claims in assessing his complementary protection claims.[27]  The Tribunal nevertheless did not accept that the applicant has any interest in atheism, has or would seek to promote it in Iran, or that anyone in Iran is or was aware, or is likely to become aware, that he has any interest in atheism. The Tribunal also did not accept that the applicant has or will come to the attention of the authorities for not believing in any religion.

    [27] at [120]

18. The Tribunal also rejected the applicant’s claims relating to his alleged involvement in the Basij on the basis of factual findings already made in respect of his Convention related claims[28] and was, in the circumstances, not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there was a real risk that the applicant would suffer significant harm on the basis of any of his claims.[29]

    [28] at [122]

    [29] at [123]

Present proceedings

1. These proceedings began with a show cause application filed on 29 January 2016.  By an Application in a Case filed on 13 June 2017 the applicant sought leave to rely upon a proposed amended application. At the trial of this matter on 22 June 2017 counsel for the applicant handed up a proposed further amended application prior to obtaining leave for the proposed amended application. I granted leave for the applicant to file and rely upon the application as amended in the proposed further amended application. The grounds in that version of the application are:

   Ground 1: Insufficient logical or evidentiary basis for the Tribunal Decision

   1. The Second Respondent (Tribunal) failed to give proper, genuine or realistic consideration to the independent country information regarding allegations of torture, inhuman or degrading treatment by the Basij, according to the Freedom House Report 2012, at page 21 of the Court Book or the further country information at page 139 [5] of the Court Book.  As a consequence, the adverse credibility finding by the Tribunal at [95] of the decision record was affected by jurisdictional error as there was a sufficient lack of probative evidence or logical connection between the Tribunal’s assessment of the applicant’s credit and the material upon which it relied to make that assessment.

   Particulars

   Protection Claims

   a) At [91] of the decision record, the applicant is a 25 year old, single male citizen of the Islamic Republic of Iran (Iran) who claims protection in the Commonwealth of Australia (Australia) due to a real risk of harm based on his religion, membership of a social group, his actual or imputed political opinion due to “his experiences while in the Basij” and because he “didn’t believe in God”.

   Adverse credibility finding

   b)      At [95]; the Tribunal erred by finding that the “applicant’s evidence regarding his claims to lack credibility” and “did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated his claims in order to be granted a protection visa”.

   Military Service

   c)      At [96]: the Tribunal erred by impugning the applicant’s credibility when the Tribunal misconceived, misconstrued or misunderstood the applicant’s evidence by finding that the “applicant did not serve in the Basij but rather that he was conscripted into the Sepah.” The Tribunal observed that “[w]hile I acknowledge that the Basij come under the command of Sepah, they are two different entities. This is important insofar as determining the applicant’s credibility, as well as that of his claim…”

   The Applicant’s explanation

   d)      At [86]: the applicant provided a reasonable explanation regarding his military service. “He claimed that he had always said that he was a conscript in the Basij and the box was ticked if someone was a Basij. He was a conscript serving with the Basij. It was a big misunderstanding and he had submitted all the documents that he was a conscript who served in the Basij.”

   e)      However, at [98], the Tribunal observed that in the applicant’s “first RRT hearing he was specifically asked why his military discharge ID card (folio 2) did not have the box “Basij” ticked but did have the ‘conscription’ box ticked. He claimed that it would only be ticked if he had been a volunteer in the Basij and not a conscript. He further stated that the red and yellow insignia on his sleeve in the ID photo (which was indistinct) indicated that he was in the Basij. It was only when he was pressed on the point during the second RRT hearing that he admitted that he was a Sepah member serving at a Basij base.”

   f)      As a result, at [99], the Tribunal was “willing to accept as plausible that the applicant may have served at a Basij base in the Tehran area undertaking guard duties” but found the “applicant’s account of his time there to lack credibility.”

   Failure to consider the country information regarding the Basij

   g) In particular, at [103], the Tribunal did not “accept that he was privy to torture sessions conducted by Basijis, had to transfer detainees to the operations manager or that he attended to a detainee who had been attacked with mace spray. All of these accounts rely solely on the testimony of the applicant, who I have found to lack credibility.”

   h) Contrary to the finding by the Tribunal that “all of these accounts rely “solely” on the testimony of the applicant”, there was independent country information at page 21 of the Court Book, supporting the applicant’s claims, as submitted by the then migration agent for the applicant, Nicholas Adler from Playfair Visa and Migration Services.

   i) The Tribunal failed to give genuine, proper or realistic consideration to the Freedom House Report At page 21 of the Court Book, where it was observed:

   Although the constitution prohibits arbitrary arrest and detention, such abuses are increasingly employed, and family members of detainees are often not notified for days or weeks.  Suspected dissidents are frequently held in unofficial, illegal detention centres. Prison conditions in general are notoriously poor, and there are regular allegations of abuse, rape, torture, and death in custody. In a letter to Iranian authorities published in May 2011 … prisoners reported ill-treatment, prolonged solitary confinement, torture, and systematic due process violations during their interrogation and detention.1

   Footnote 1: Freedom in the World 2012 – Iran 12 July 2012, available at

   [accessed 30 November 2012.

   Country Information before the delegate

   j) Further, there were also multiple sources of independent country information at page 139 [5] of the Court Book, which the Tribunal failed to give consideration, including:

   5. Iran: Country Reports on Human Rights Practices for 2012, United States Department of State, 19 April 2013

   6. Iran Country of Origin Information Report, Home Office UK Border Agency, 16 January 2013

   7. CISLIB21784: Religious Participation among Muslims: Iranian Exceptionalism, Gunes Murat Tezcur; Taghi Azadarmaki; Mehri Bahar, 2006

   8. Iran’s Islamic Revolutionary Guard Corps: Guardian of the Revolution and Violators of Human Rights, Mark Dubowitz, Foundation for Defense of Democracies, 30 May 2013

   9. Iran’s National Service, Edinburgh Napier News, 26 April 2010, edingurgh-napiernews.com accessed on 28/8/2013

   10. CX272051: Diary of a Revolutionary Guard Conscript, Tehran Bureau, 10 August 2011

   11. CX255162: The Intelligence and Security Services of Iran, World Security Network, 29 November 2010

   12. CX284724: Iran reduces term of military service to 21 months, Vision of the Islamic Republic of Iran Network 1, Tehran, 9 April 2012

   13. CX241752: IRAN: CIA The World Factbook, United States of America (USA): Central Intelligence Agency (CIA) World Fact Book, 23 March 2010

   14. The Ideological-Political Training of Iran’s Basij, Golkar, S. (Dr), Brandeis University, Crown Center for Middle East Studies, September 2010,

   15. CISLIB 17845: The Rise of the Pasdaran, Wehray, F. et al, Rand National Defense Research Institute, 2009

   16.CX265870: Is the Basij Iran’s weak spot?, RealClearWorld, 6 February 2010

   17.  CX253781: Iran Primer: The Basij Resistance Force, Public Broadcasting Service (PBS), 21 October 2010

   18.  CX265167: Foot soldiers of the Islamic Republic’s “culture of modesty”, Middle East Report Online (MERIP), Spring 2009

   The Findings by the Delegate after reviewing the country information 

   k) As a consequence of the Tribunal’s failure to engage with the independent country information, the findings by the Tribunal were therefore inconsistent with the findings of the delegate to the Minister at page 143 [9], third sentence in of the Court Book, where the delegate found that the country information at page 139 [5] of the Court Book, supported the finding that the Basij had engaged in torture, inhuman and degrading treatment during the relevant period and that the applicant had served with the Basij. The delegate found:

   Also, based on the country information [5.26..27], I accept that Iranian regime brutally cracked down on protestors following the announcement of the 2009 presidential election results and the authorities, including the Basij, not only used tear gas against protestors but also detained and arrested many of them. The applicant’s photographs in army uniform with tear gas weaponry and his account of the actions taken by the Basij against protestors, do not appear to be inconsistent with the cited country information about the function of the security and law enforcements agencies, including the Basij, and what occurred in Iran at that time. Consequently, without any contradictory information before me, I accept that the applicant undertook his compulsory military service in the Basij and Ghods.

   Photos of military service and tear gas weaponry

   l) Contrary to the finding by the Tribunal that “all of these accounts rely “solely” on the testimony of the applicant”, there were corroborating photos of the applicant with tear gas weaponry from 108-120 of the court book. The Tribunal acknowledges the photos at [32] and [34] of the decision record, but failed to give genuine, proper or realistic consideration to the photos at [110]-[111].

   Refugee Criterion

   m) As a result, the Tribunal’s decision was affected by jurisdiction error at [119] with regard to the refugee criterion, by finding the “applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.”

   Complementary Criterion

   n)Similarly, the Tribunal’s decision was affected by jurisdiction error at [123] with regard to the complementary criterion, by finding that ‘I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlines in the complementary protection criterion in s.36(2)(aa).’

1. I have before me as evidence the book of relevant documents filed on 8 February 2016.

2. Both the applicant and the Minister prepared pre-trial submissions in accordance with procedural orders made by me on 15 February 2016. In addition, the parties made oral submissions at the trial of the matter on the basis of the application as amended on that day.

Consideration

1. The applicant contends that there was an insufficient logical or evidentiary basis for the Tribunal’s adverse credibility finding and the decision resulting from it. The applicant had claimed to have witnessed and complained about human rights abuses perpetrated by the Basij with whom he served as a conscript in Iran. The Tribunal reasoned that the applicant’s claim to have served with the Basij was false, although he had served as a conscript with the Sepah at a Basij base performing simple guard duties. The Tribunal reasoned that the applicant’s simple duties would not have brought him into contact with the kinds of human rights abuses that he claimed to have witnessed and therefore rejected those claims. The numerous particulars to the ground of review take issue with the Tribunal’s reasoning.  

2. An immediate difficulty with the ground of review is that an alleged failure to give proper, genuine and realistic consideration is a somewhat obscure basis of legal challenge to a Tribunal decision. At one extreme it probably merges with the concept of bad faith. That is not alleged here. At its base it may mean nothing more than a failure to have regard to the merits of a particular case.[30]  The space in between those two bases of challenge is probably coextensive with the concept of a failure to bring an active intellectual process to a review.

   [30] See Minister for Immigration v SZJSS (2010) 243 CLR 164 at [23]-[30]

3. However one approaches this ground of review, the particulars do not in my view establish any jurisdictional error. In that regard, I agree with the Minister’s submissions.

4. More specifically, the substance of the applicant’s complaint appears to be an alleged failure by the Tribunal to have regard to certain country information which, it is claimed, provides independent confirmation of the applicant’s account of having been privy to torture sessions conducted by the Basijis. This assertion appears to be based on a misunderstanding of the Tribunal’s reasons.

5. As noted above, the Tribunal found that the applicant’s claims lacked credibility, and that he was not a reliable, credible or truthful witness. These findings were based on a number of issues discussed in the Tribunal’s decision, the most significant being the applicant’s claim that he was conscripted to, and served with, the Basij, which he ultimately admitted was not the case, acknowledging that he was conscripted into the Sepah and had undertaken guard duties at a Basij base.

6. The Tribunal also rejected as lacking in credibility a number of other claims made by the applicant concerning alleged events during his military service.[31]

   [31] at [99]-[102] and [104]-[105]

7. Significantly for the purposes of this application, the Tribunal did not find at [103] of its decision that the Basijis did not engage in the type of conduct the applicant claimed to have witnessed. In view of its findings concerning the applicant’s credibility, and in the absence of any corroboration, the Tribunal simply did not believe that the applicant witnessed such events (or that he had to transfer detainees to the operations manager, or attended to a detainee who had been attacked with mace spray).

8. This was a finding open to the Tribunal on the basis of the totality of the evidence before it.

9. The fact that the Tribunal’s factual findings were not entirely consistent with those of the delegate is not in itself a proper basis for an allegation of jurisdictional error on the Tribunal’s part. In reviewing the delegate’s decision, the Tribunal is duty bound to consider the applicant’s claims for itself, to reach findings of fact, and to apply the relevant law to those facts.

10. The applicant’s protection claims were confusing and inconsistent.  His written claims which accompanied his protection visa application[32] claimed both that he had served in the Basij and that he was one of two guards at a checkpoint which was used both by the Basij and the Sepah.  In a submission to the delegate, the applicant maintained his claim that he served in the Basij.[33] In a submission to the Tribunal,[34] the applicant maintained that the delegate had mistakenly taken the view that the applicant had served with the Sepah in the Qods division and asserted that he had served in a Qods unit of the Basij. Under questioning before the Tribunal, however, the applicant changed his account and asserted that he was a conscript with the Sepah serving with the Basij at a Basij and Sepah base. He claimed that the two forces were complementary to each other[35]. Later in the hearing the applicant reverted to his original claim and asserted that there had been a “big misunderstanding”.[36]

    [32] Commencing at RD 48

    [33] RD 123

    [34] RD182

    [35] RD 244 at [58]

    [36] RD 248 at [86]

11. The material relied upon by the applicant did not establish that he was a member of the Basij. It was open to the Tribunal to conclude that the applicant was a serving member of the Sepah who performed guard duties at a Basij base. It was also open to the Tribunal to conclude that the applicant had not witnessed or complained about human rights abuses by the Basij. Plainly, the Tribunal had regard to the merits of the applicant’s claims and engaged in an active intellectual process in dealing with those claims. There was no irrationality in the Tribunal’s reasoning, and the conclusions reached by the Tribunal were matter about which reasonable minds might differ. It follows, and I find, that the various particulars in the ground of review cannot be sustained.

Conclusion

1. The applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.

2. I will hear the parties as to costs.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  30 August 2017