ALC15 v Minister for Immigration

[2015] FCCA 2643

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALC15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2643

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Protection (Class XA) visa – whether Tribunal failed to have regard to available evidence – whether the Tribunal was unreasonable in its findings – whether Tribunal imposed wrong test on applicant’s conversion to Christianity – whether Tribunal actually considered claim cumulatively – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(b), 36(2)(aa), 476

Tisdall v Webber [2011] FCAFC 76

Applicant: ALC15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 999 of 2015

Judgment of: Judge Street

Hearing date: 24 September 2015

Date of Last Submission: 24 September 2015

Delivered at: Sydney

Delivered on: 19 October 2015

REPRESENTATION

Counsel for the Applicant: Ms M Tibbey

Solicitors for the Applicant: Legal Aid

Counsel for the Respondents: Mr M Smith

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The amended application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 999 of 2015

ALC15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 11 March 2015 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.  The applicant was found to be a citizen of Iran, and his claims were assessed against that country.  The applicant was found to have left Iran legally on 23 May 2012 and arrived in Australia as an unauthorised maritime arrival on 23 July 2012. 

2. The applicant’s principal claims were a fear of harm in Iran as a result of incidents that allegedly caused him to flee Iran, and for the reason of converting to Christianity.  Relevantly, the applicant said there was an alleged incident in May 2012, in which objection was raised to his daughter wearing the chador, in which it was accepted that there was an incident involving the daughter that took place.  The Tribunal found that the incident involving the Basij boss, following the incident with his daughter, was not as severe as recounted by the applicant. 

3. The applicant gave evidence in relation to participation in the 2009 Ashura day demonstrations, as a result of which he said he was charged and convicted and given a 10-year sentence.  The applicant said he was released, after four months, on conditions which he alleged required him to report fortnightly, and the applicant contended that he was still the subject of those reporting conditions when he departed Iran.  The Tribunal accepted that the applicant had been detained for approximately four months after being arrested at the Ashura day protests in 2009 and that, upon his release, he was subject to some limited reporting conditions but did not accept the applicant’s evidence that it was for two years right up until the time that he legally left Iran.  

4. The applicant also contended that the Basij had come to visit his wife as to his whereabouts after he came to Australia. However, the Tribunal did not accept that the applicant was of ongoing interest to the Basij and did not accept the wife’s evidence as to the visits by the Basij. In relation to the applicant’s religious opinion, the Tribunal was not satisfied that the applicant was a genuine convert to Christianity and also rejected the assertion that the applicant’s wife had converted to Christianity.

5. The Tribunal also addressed a Facebook post raised by the applicant and was not satisfied the applicant’s posting Christian messages on his Facebook page, even if it was in his actual name or his Facebook name, would give rise to a real chance of him being harmed in Iran.  The Tribunal also found that it was not satisfied there was a real chance of the applicant being subjected to any harm should he return to Iran and was not satisfied that the applicant had been of any adverse interest to the authorities since he was arrested at the 2009 Ashura day protests.

6. The Tribunal also addressed the fear concerning the applicant being failed an asylum seeker and held that he was not satisfied the applicant would be imputed with any profile that would give rise to a real chance of him being harmed on return.  It was in those circumstances the Tribunal did not accept that there was a real chance of persecution of the applicant upon his return to Iran.  The Tribunal then found:

   60. I have had regard to all the evidence and submissions, but even after considering the accepted claims cumulatively, I remain satisfied the applicant does not have a real chance of suffering serious harm in Iran.

   61. Accordingly, I am not satisfied the applicant has a well-founded fear of persecution for a Refugees Convention reason should he return to Iran.

   62. For the reasons given above, the Tribunal is therefore not satisfied the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) or (b) of the Migration Act.

7. The Tribunal then turned to the issue of complementary protection and relevantly found:

   65. First, based on the country information considered and the accepted claims, I am not satisfied the applicant has a real risk of suffering the death penalty in Iran.

   66. Next, based on the country information considered and the accepted claims, I do not accept the applicant has a real risk of suffering degrading treatment or punishment arising from an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, should he return to Tehran, Iran. For the same reasons, I do not accept the applicant has a real risk of suffering (for instance) harm that could 'reasonably be regarded as cruel or inhuman in nature' (cruel or inhuman treatment or punishment); or that would (for instance) be inconsistent with the Articles of the International Covenant on Civil and Political Rights (torture). For the same reasons, neither am I satisfied the applicant has a real risk of suffering arbitrary deprivation of life in Tehran, Iran.

   67. Neither is there any issue, squarely raised by the evidence though not articulated, that the applicant may have a real risk of significant harm for any other reason in Iran.

   68. Accordingly, I am not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal, there is a real risk that he will suffer significant harm if returned to Iran.

8. It was in those circumstances the Tribunal found the applicant was not a person in respect of whom Australia had a protection obligation and that the criteria under ss.36(2)(a) and 36(2)(aa) had not been made out. The applicant appeared before the Tribunal on 6 March 2015 to give evidence and present arguments and was represented by a migration agent.

9. Prior to the hearing, the applicant was served with the invitation to appear by letter dated 13 January 2015 consistent with the statutory regime.  On 2 March 2015, the applicant’s representative provided submissions to the Tribunal which were expressly referred to in the Tribunal’s reasons at para.30 and clearly picked up in the finding made at para.60.  Those submissions, dated 2 May 2015, include a statement by the applicant which included the assertion of the applicant’s wife now being a Christian and also annexed a report by a Senior Pastor Sam relating to the applicant’s attendance to Bible study.

10. An amended application was filed which raised a number of grounds, and it is convenient to deal with those grounds in the sequence in accordance with which counsel addressed the Court. Grounds 1 and 2 of the amended application were as follows:

    1. In reaching the conclusion set out in paragraphs 11 and 19 of the decision of the Refugee Review Tribunal dated 11March2015 (hereafter 'the decision') that the Applicant was not required to report every week or fortnight after his release in 2010, the decision-maker failed to have regard to the available evidence, including country information cited at paragraph 11, indicated that reporting conditions may be applied to any type of suspect at the discretion of the Judge and the evidence of the Applicant that reporting conditions were imposed that he report to the Basij (local militia) initially every week and then every two weeks.

    2. In paragraphs 11 and 12 of the decision, rejecting the Applicant's claim that he had to report every two weeks to the Basij up until the time he left Iran, the decision-maker took into account that “State resources” would be “used to ensure that the Applicant reported as regularly as he did” as a reason not to accept the claim, which fails to take into account evidence that the Basij is a voluntary paramilitary group, whose local headquarters the applicant had to attend to sign a book every week, then every two weeks. The implications of that are that:

    a) state resources were not required in the implementation of the reporting conditions, as the Basij is a voluntary paramilitary group;

    b) there is no evidence that the Applicant required any follow-up to make him comply or use of state resources in any other way, so his reporting obligation would not have been a great drain on state resources.

11. In relation to grounds 1 and 2, the relevant paragraphs of the Tribunal’s reasons are paras.11, 12 and 19 as follows:

    11. At the Tribunal hearing, the applicant explained that he (along with thousands of other persons) attended the Ashura Day protest in 2009. When violence erupted, he attempted to flee but he was sprayed with pepper spray. When it was put to him that it may not appear plausible he was pepper sprayed if he was attempting to flee, he said he was in a group that may have been surrounded by plain clothes Basij and it did not matter which direction he ran. At any rate, after being caught at the protest, he was detained in varying places for around 20 days then put into Evin prison for approximately 3 months. He was charged and convicted of an offence; referred to as Crimes Against National Security. He was given a 10 year sentence and released after approximately 4 months (on conditions including that he commit no further offence). On his release he was also subject to reporting conditions. These were alleged to have been initially that he had to report to the police once per week then later he was required to attend once per fortnight. When asked, the applicant said he was subject to the reporting conditions up till the time he departed Iran (over two years later). It did not appear plausible the applicant would have been required to report as regularly as he did; or that State resources would be used to ensure the applicant continued to report as often as he alleged. Be that as it may, the country information stated:

    11.62 The JAGCI Review 2013, dated 11 March 2013, stated that, Reporting conditions are an established part of Iranian judicial/law enforcement procedure and may be applied to any type of suspect. It is within the discretion of the Judge to impose any conditions and restrictions deemed fit to ensure that the individual is available for any further questioning and sentencing. This authority is given under Article 19 of the Iranian Penal Code. '

    12. In the circumstances, I propose to accept the applicant was detained for approximately four months after being arrested at the Ashura Day protests in 2009, and that upon his release he was subject to some limited reporting conditions - though not for two years as he claimed. If this were the case, then I do not accept the applicant would have been able to leave Iran legally and via the airport (discussed below). That said, 1 also accept that one of the conditions of his release was that he would be subject to a more lengthy term of imprisonment if he breached the terms of his release (and I accept his sentence may then be for ten years).

    …

    19. The applicant's wife and daughter left the school premises shortly after the incident but the applicant remained as he wished to make a complaint to the police. In writing, the applicant said the school Basij man's 'boss' was from Sepah; however, at the hearing, he said he did not know if the boss was Sepah, but knew he was Basij. In writing, the applicant also said the Basij boss worked at the headquarters where he had to report as part of his parole conditions. Be that as it may, for the reasons set out above, I am not satisfied the applicant was required to report every week or fortnight two years after his release in 2010.

12. It was put by counsel for the applicant that the conclusion by the Tribunal that the reporting conditions were less than two years was not based on any evidence.  I reject that proposition.  It is clear that the applicant gave evidence about the reporting condition, and it was open to the Tribunal to accept or reject the applicant’s credibility in that regard.  Further, there was a rational basis for the Tribunal to express its concern in relation to that continuation of the reporting period given the applicant’s legal departure from Iran as identified in para.8 pf the Tribunal’s reasons.

13. Counsel for the applicant also advanced that the finding in relation to the conditions being less than two years was contrary to the available country evidence and that the decision-maker had ignored relevant evidence.  It was a matter for the Tribunal as to whether it accepted or rejected the country evidence, and it is apparent that the Tribunal did refer to the Home Office report, as identified in footnote 7.  Neither ground 1 nor ground 2 makes out any jurisdictional error.

14. Ground 3 is as follows. 

    3. In his statement of 5 December 2012, at paragraph 10, the Applicant states that he was slapped in the face, kicked in the leg then fell over before others separated him from the Basij operative who was dealing with him. The conclusion reached at paragraph 20 of the decision that it was not plausible that the Applicant has been so severely mistreated is unreasonable. It assumes that in Iran, at the relevant time, at all levels of law enforcement, there was some proportionality between the action alleged to have caused the attention of the Basij and the punishment and treatment meted out. There is no evidence that there was such proportionality in Iran at the relevant time and available evidence, including country information cited in the decision, is to the contrary, indicating a arbitrariness and a degree of impunity for wildly non-proportional and apparently undeserved punishments meted out to anyone who appeared to dispute the ruling system, even in apparently small ways (which is referred to in the decision in the last two sentences of paragraph 51).

15. In relation to ground 3, counsel for the applicant contended that the finding by the Tribunal that the applicant had not been as severely mistreated as he alleged following the incident with his daughter in para.20, was not a finding that was open, and that the lack of proportionality in response by law enforcement was a matter that should have been taken into account by the Tribunal, and that the finding in the last sentence of para.20 was arbitrary.

16. Paragraph 20 is as follows:

    20. In writing, the applicant had said he complained to the Basij boss, but the boss had said the applicant had abused the supreme leader. The applicant was then kicked in the leg and he fell over (at the Tribunal hearing he said he was slapped in the face and then fell over). People (including other parents at the school) then tried to separate the applicant from the Basij. While this was proceeding, the applicant ran away. The country information considered in the sources cited herein, indicate the Basij may act brutally (on occasion) and with some impunity. It is also the case that any real or perceived insult to the supreme leader may also be met with violence. However, the applicant said at hearing that he just questioned the new rule (about the female students wearing the Chadour) and he did not wish to 'follow up' on his complaint as the situation was becoming heated. It therefore does not appear plausible the applicant, who was apparently backing away from the dispute, would then be so severely mistreated at that time, unless his version of the incident was either false or Jacking in material evidence.

17. The Tribunal, in para.20, on a fair reading, was rejecting the applicant’s evidence as to the extent of the incident that had occurred in circumstances where it is clear from the transcript to which the Court was taken that the applicant gave a different version, or at least that there were inconsistencies in the version given by the applicant to the Tribunal orally from the version set out in the applicant’s statement in paras.9 and 10 in support of the application for protection.

18. It was a matter for the Tribunal whether or not to accept the applicant’s evidence in relation to the incident, and it cannot be said that the adverse finding in para.20 lacks an evident and intelligent justification.  I reject the submission that the Tribunal failed to take into account the country information.  As to the lack of proportionality in the levels of law enforcement this was a matter for the Tribunal.  I reject the proposition that the finding was arbitrary.  No jurisdictional error is made out in relation to ground 3. 

19. Grounds 4 and 5 of the amended application are as follows:

    4. At paragraph 24, the decision-maker states that one reason he does not accept that the Applicant was of on-going interest to the Basij at the time he left Iran is that the Applicant visited the passport office to check whether there was any impediment to his leaving the country. The decision-maker's view is that he would not have risked personally attending the passport office if his claims were true. This fails to take into account the evidence of the Applicant that he did not realise that he could have been arrested at the passport office (T33 at .40 to T34 at .25).

    5. A conclusion was reached at paragraph 27 that at the time he left Iran, the Applicant was not of any interest to the authorities in Iran. One of the stated bases for the conclusion is that the fact that he was able to leave using his own passport. However that fact does not support that conclusion because there was no evidence that the criminal records of those who have been awarded suspended sentences and who must report for on-going periods were uploaded onto any computer system available to airport authorities and systematically checked prior to Iranian citizens leaving the country. The available evidence, including country information, indicates that an exit ban would have that consequence but there was no evidence that an exit ban had been issued in this case. The conclusion that because the Applicant was able to leave via the airport he was not of interest to the authorities at the time he left Iran is unreasonable, because it has no logically probative or factually based foundation. The available evidence, not taken into account, is to the contrary, indicating that, at times, those convicted of offences could leave the country.

20. These grounds, in substance, raise the adverse findings by the Tribunal in paras.24, 25 and 27, which are as follows:

    24. By written statement dated 27 February 2015,11 the applicant said the Basij had come to visit his wife seeking his whereabouts (in the six months after coming to Australia). One Basij said that as the applicant is away for 6 months, he could propose marriage to her and this “affected [the applicant] emotionally”. At the hearing, the applicant said the Basij visited his home on two occasions (on the night of the 14 May 2012 incident; and second around 6 or 7 months later). In writing, he said the Basij attended his home on 2 occasions prior to his departure from Iran. First, it did not appear plausible the Basij would only attend his home on 2 or 3 occasions if the incident he described was as significant as claimed. Irrespective of how often the Basij visited the family home, neither did it appear plausible the Basij would cease visiting his wife 6-7 months after his departure from Iran if he was of ongoing interest to them as he claimed (and at hearing, and though he is allegedly in daily contact with his wife, no claim was made that his wife is being harassed or visited by the Iran authorities or the Basij).

    25. Next, at hearing the applicant said that a couple of days prior to his departure from Iran (on 23 May 2012) he attended the passport office, 'just to make sure' that he was not on any airport blacklist. When asked to confirm, the applicant said he personally attended the passport office. That said, given the applicant claimed to be wanted by the Basij (and he conceded at hearing the Basij had contacts with the Iran government authorities), and given he had a contact in the Basij who may be able to more safely make such enquiries, it is not plausible the applicant would have risked personally attending the passport office in Tehran, if his claims were true. This is a second reason that I do not accept the 14 May incident was as significant as claimed.

    …

    27. The reason I do not accept the wife was visited as claimed, is that I do not accept the applicant was of any ongoing interest to the Basij at that time. That is because, prior to departing Iran, the applicant was able to terminate his rent contract and recover his bond. He agreed that he used the bond money to pay for his travel to Australia. The applicant's furniture was then arranged to be given to the wife's sister. The Tribunal does not accept it plausible the applicant would have the time to arrange his affairs in this way if he was subject to the immediate harm he claimed. As put to the applicant at the Tribunal hearing, it was apparent that many persons in Iran were travelling to Australia at the time and I may consider whether he was simply seeking (for instance) economic opportunity. The applicant rejected this as untrue. However, this is the third reason that has satisfied me the applicant was not subject to any ongoing dispute with the Basij at this time. I am satisfied he departed Iran legally (on a passport in his own name) on 23 May 2012, as he was no longer of any adverse interest to anyone in Iran.

1. It was a matter for the Tribunal whether to accept the applicant’s evidence in relation to whether he was of ongoing interest to the Basij and whether the Tribunal accepted the evidence of the applicant’s wife in relation to that interest.  I do not accept that the adverse findings by the Tribunal were not open on the material before the Tribunal.

2. Counsel for the applicant suggested that the adverse findings were mere conjecture.  I reject that submission.  Grounds 4 and 5 fail to make out any jurisdictional error. 

3. Ground 6 of the amended application is as follows:

   6. There is no evidence for the conclusion contained in paragraph 27 that it was not plausible for the Applicant to have secured release of the bond on the apartment he and his wife shared in order to flee Iran. This is mere conjecture, unsupported by any evidence. It was not put to the Applicant by the decision-maker during the hearing that it was implausible that he would be able to recover his bond between 14 May 2012 (when the argument with the Basij occurred and he stopped staying at his home) and when he left Iran on 23 May 2012. The decision-maker had no 'information that he made known to the Applicant that could suggest this was implausible and sought no information during the hearing as to whether it was a private or public landlord, what the procedures were to recover a bond, how long it might usually take or any other similar information. The Applicant had no opportunity to respond to this adverse conclusion, which was a matter of credibility.

4. Ground 6 seeks to agitate an alleged error in relation to the reasoning concerning the arrangements made by the applicant in recovering the bond.  This was the subject of examination in the transcript at pp.107 to 108. 

5. The proposition that there is no evidence in relation to the finding by the Tribunal that it did not accept as plausible that the applicant would have time to arrange his affairs, in the way alleged, relating to his bond, was a matter that was open to the Tribunal in rejecting the applicant’s evidence.  This is not a case in which there was no evidence to support the adverse findings by the Tribunal.  Ground 6 doesn’t make out any jurisdictional error.

6. Ground 7 of the amended application is as follows. 

   7. Another reason, stated in paragraph 27 of the decision as being “the third reason” for concluding that the Applicant was not of any interest to the authorities in Iran at the time he left the country, was that many persons were travelling to Australia at that time and the decision-maker concluded that the Applicant may have been “seeking (for instance) economic opportunity. In deciding whether the authorities had any continuing interest in the Applicant at the time he left Iran the decision-maker impermissibly takes into account reasons that others may have had for leaving the country instead of considering the evidence of the Applicant as to his reasons for leaving the country. Reasons others may have had for leaving the country are irrelevant to what motivated this person unless there was evidence that this person was merely following others. There was no such evidence.

7. Ground 7 alleged that the reference to many persons leaving Iran simply seeking an economic opportunity was an irrelevant consideration.  It is clear that, on a fair reading, the Tribunal was identifying what had been put to the applicant in the context of whether the applicant had a genuine fear of persecution and it was a matter for the Tribunal whether it accepted the applicant’s evidence in that regard.  No jurisdictional error is made out by ground 7.

8. Grounds 8 to 13 are as follows:

   8. The conclusion that the conversion of the Applicant to Christianity is not genuine but merely “temporary therapy” is not supported by any evidence but amounts to the expression of an opinion as to the future course of his religious path, namely that he will not adhere to it. Logically, that cannot be a test of whether he has, in fact, converted to Christianity. The decision-maker has therefore imposed a wrong test: instead of asking whether the Applicant had converted to Christianity or could be imputed with having converted and is therefore likely to be persecuted if forced to return to Iran, he asked what the likely future path of the Applicant's religious journey would be.

   9. There is no evidence to support the conclusion that the Applicant's conversion to Christianity is not genuine. The available evidence is to the contrary and has not been properly taken into account. It indicates that his conversion is genuine: he has a reasonable knowledge of Christianity, he regularly attends worship and bible classes, lives with others who have given evidence that he is genuinely a Christian, he has made his conversion known to his family in Iran (which, for a Muslim, would amount to apostacy, a punishable offence) and placed material on Facebook indicating his conversion, using his own name at first (later an assumed name).

   10. The conclusion of the decision-maker at paragraph 37 that the Applicant has not told his family that he has converted because to do so is dangerous and the Applicant appreciates that, is illogical, reasoning backwards from the consequences rather than considering the evidence of the Applicant that he had told his family that he had converted.

   11. The fact that the Applicant had a degree of depression due to separation from his family and undetermined visa status at the time he converted to Christianity is not evidence that the conversion was not genuine and was an irrelevant matter in assessing whether the Applicant had converted to Christianity.

   12. To surmise that his conversion is merely “temporary therapy,” without evidence, is to impose a wrong and impermissible test, by attempting to predict the future depth and resilience of his conversion rather that asking the question whether he is likely to be persecuted if forced to return to Iran because of his conversion to Christianity or imputed conversion to Christianity.

   13. The decision maker implicitly accepts that the Applicant has converted to Christianity in dealing with the resilience of his new faith. He fails to apply the correct statutory test, namely whether the Applicant is reasonably likely to be persecuted for reasons of religion if forced to return to Iran and instead applies a different one, namely to ask how resilient this faith is likely to be in the future.

9. The kernel of the arguments in relation to the alleged jurisdictional error was that it was suggested the Tribunal had focused on the wrong question in relation to whether there was a well-founded fear of persecution by reason of conversation to Christianity and that the Tribunal had deflected itself by posing a question of whether there was a pursuit by the applicant of temporary therapy. 

10. The Tribunal’s reasons are to be read as a whole and without a keen eye for error.  On a fair reading of paras. 35, 36, 37 and 38, it is clear that the Tribunal was correctly addressing the relevant question as to the applicant’s conversion to Christianity was genuine in the context of the ultimate finding which the Tribunal in para.60 that the applicant did not have a well-founded fear of persecution for a convention reason should he be returned to Iran. 

11. Counsel of the applicant also relied upon paras.32 and 33 and took the court to Tisdall v Webber [2011] FCAFC 76. Relevantly at paras.124 through to 131, the adverse findings by the Tribunal are not findings proceeding on speculation or guesswork or mere assumption and it is clear that the adverse findings were open to the Tribunal. There is a difference, as the first respondent submitted, between an absence of evidence and a rejection of the claims advanced by the applicant. I accept the first respondent’s submission that it was open to the Tribunal to reject the applicant’s claims in relation to Christianity and that that rejection cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by ground 8 to 13.

12. Ground 14 of the amended application is as follows:

    14. As to the Applicant's wife's Christian beliefs, at paragraphs 39 and 40 the decision-maker rejects the claim that she has converted to Christianity. He ignores relevant material and fails to take into account relevant evidence from Senior Pastor Sam Georgis (CB 148) that in his view the wife of the Applicant has been converted through Skype and that, through Skype, she attends an on-going weekly bible study, whilst living in Iran.

13. The passages in the Tribunal’s reasons in paras.39 and 40, are as follows:

    39. The applicant said that his wife (in Tehran) had now converted to Christianity. He said that through Skype, 'Sam' converted his wife to Christianity. His wife then purchased a Bible and his wife is no longer safe in Iran. The country information I have seen includes:

    Iranian interpretation of sharia provides that Shia Muslims are not permitted to renounce their religion or convert to another religion. Apostasy is not codified in Iran's Penal Code, but the Constitution allows judges to turn to sharia if Iranian law is not clear about an issue. Convictions for apostasy are not common. However, some judges have applied sharia to hand down sentences of the death penalty and lengthy imprisonment for apostasy. The last time the death penalty was carried out for apostasy was in 1990.

    Christians belonging to unregistered churches are at higher risk of adverse attention from officials and face considerable official discrimination. This is in part due to Islamic mores concerning apostasy and deep suspicion of evangelism. Most evangelical churches in Iran are not recognised and therefore cannot openly worship, instead forming underground 'house churches', which are illegal in Iran. As the majority of house church members are converts from Islam (or children of converts) they are likely to be considered apostates.

    40. At any rate, I do not understand the applicant wife attends Church in Iran. Furthermore, and based on all the evidence herein, I am not satisfied the wife has converted to Christianity (in her heart as claimed, or at all).

14. There is an express reference by the Tribunal to the submissions that refer to the letter of the Senior Pastor Sam Georges and it is clear from para.39 that this was an express reference to that pastor.  Accordingly, the assertion that the Tribunal failed to take into account relevant information is not made out and it was open to the Tribunal whether or not to accept the applicant’s evidence as to this claim as to his wife’s conversion to Christianity.  No relevant material was ignored.  No jurisdictional error is made out by ground 14.

15. Ground 15 is as follows:

    15. The decision-maker states, at paragraph 60, that he rejects the Applicant's claims “cumulatively”. The cumulative claim consists of the following:

    a) the imprisonment for 4 months after the 2009 election and suspended 10 year sentence with reporting conditions,

    b) the incident at his child's school where he refused to have her wear the chador,

    c) altercation with a Basij member over that refusal, in which he was slapped on the face and kicked to the ground, resulting in his going into hiding and fleeing Iraq,

    d) converting from the Muslim to the Christian faith ( regarded as apostacy in Iran) and

    e) the possibility of returning as a failed asylum seeker.

    The decision-maker does not elaborate the content of the cumulative claim, or give specific reasons for rejecting the cumulative claim. The way in which consideration of the cumulative claim is expressed amounts to merely “going through the form” of considering the cumulative claim in a formalistic way rather than giving serious consideration to the cumulative claim. The Applicant and his legal representative made statements during the hearing that indicate that the cumulative claim was an significant integer of his claims, for example at T17 at .34, t21 at .19 - .45 -T22 at .14, T35 at .03 - .12 and .27 - .35, T36 at .30 - .40. The decision-maker failed to take into account the cumulative claim in any real, as distinct from formalistic, way.

16. Paragraph 60 of the Tribunal’s reasons is referred to above and is a clear identification by the Tribunal of having considered the claims cumulatively.  Counsel for the applicant said that this was a three line reference to the cumulative claims.  I do not accept that that is a fair characterisation of the Tribunal’s reasons, as it is clear the Tribunal has carefully set out and addressed the applicant’s respective claims severally before para. 60 dealing with a cumulative assessment.

17. I accept that there must be a genuine intellectual engagement with the assessment of the claims cumulatively.  Given the identification of the cumulative assessment of claims as identified in the reasons, I am not satisfied that there is any jurisdictional error of the kind alleged in ground 15.  Ground 15 fails to make out any jurisdictional error.

18. In these circumstances, the amended application is dismissed. 

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  19 October 2015