All16 v Minister for Immigration
[2017] FCCA 2067
•29 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALL16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2067 |
| Catchwords: MIGRATION – Review of former Refugee Review Tribunal decision – refusal of a protection visa – refusal of an extension of time for a show cause application. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Applicant: | ALL16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 448 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 29 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 29 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Williams |
| Solicitors for the Respondents: | Mr A Markus of Australian Government Solicitor |
INTERLOCUTORY ORDERS
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 448 of 2016
| ALL16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
On 29 August 2017, I dismissed with costs an application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) (Migration Act). The following are my reasons for those orders.
By a show cause application lodged on 18 February 2016 and filed on 1 March 2016, the applicant sought judicial review of a decision of the former Refugee Review Tribunal made on 4 March 2015. The application was approximately 10 months outside the period of 35 days prescribed for such an application under s.477(1) of the Migration Act. The applicant sought an extension of time.
By Application in a Case filed on 16 August 2017, the applicant sought leave to rely upon an amended application, which was itself amended in a document handed up at the hearing of the application for an extension of time. I granted that leave. The first three grounds in the original application were abandoned. The remaining grounds are:
Ground 4 – Misapplication of law section 91R(3) of the Migration Act 1958 (Cth)
4. There was not a sufficient logical or evidentiary basis for the Tribunal to find at [75] of the decision record that the applicant's conduct in Australia was “otherwise” than for the purpose of strengthening his refugee claims. The Tribunal therefore erred by misinterpreting, misunderstanding or misapplying the applicable law with regard to section 91R(3) of the Migration Act 1958 (Cth) and by disregarding this conduct in the assessment of the refugee criterion.
Particulars
a) At [19] of the decision record, the applicant is a 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 due to his religious conversion from Shia Islam to Christianity, which is prohibited in Iran and where apostasy carries the death sentence.
b) At [52], the Tribunal acknowledged that applicant did not originally make any protection claims with regard to his conversion from Shia Islam to Christianity but was to show his personal belief.
He lodged his application for a Protection visa on 14 January 2013 but did not make any claims in relation to having converted to Christianity. He mentioned this for the first time during his interview with the Department on 28 March 2013. He mentioned this for the first time during his interview with the Department on 28 March 2013. Even then he stated that it was “not part of my case, just to show my personal belief.”
c) Similarly, at [65], the Tribunal acknowledged the same.
The applicant gave evidence at the hearing that he considered himself to be a Christian in late 2012 or early 2013. He stated that by the time he was baptized he considered himself to be a Christian. His Baptism Certificate indicates that he was baptized on 6 January 2013. He lodged his application for a Protection visa on 14 January 2013 and made no mention of the fact that he had converted to Christianity, had been baptized and made no claims in this regard. He raised this issue for the first time during his interview with the Department on 28 March 2013. During the interview he produced his Baptism Certificate and stated that he did not wish to rely on his baptism in his claims as it was “not part of my case, just to show my personal belief.”
d) However, at [66], the Tribunal inquired as to what happened between his interview with the Department and his hearing before the Tribunal to make him change his mind and press the protection claims on the basis of his conversion to Christianity, to which the applicant replied that at the time of his Departmental interview, no one in Iran knew he was a Christian.
However, in his evidence to the Tribunal, the applicant claimed that he is at risk of persecution for reason of his conversion to Christianity. When the Tribunal asked him what had happened between his interview with the Department and his hearing before the Tribunal to make him change his mind, he responded that at the time of the Departmental interview no one in Iran knew he was a Christian. He stated that over a year has passed since then and there are new accusations against his name. The applicant gave evidence to the Tribunal that he informed his father in mid-2013 that he had converted to Christianity. When asked why he told his father, he responded that after he got to know about Jesus Christ and became a Christian there were elements of Christianity he could not disobey. He stated that he could not lie to his parents and if he did not tell them he would not have been a true Christian.
e) The Tribunal therefore erred at [75] by finding that the applicant's conversion was for the sole purpose of strengthening his refugee claims.
For the reasons given herein, the Tribunal is not satisfied that the applicant’s attendance at Church and at classes to learn about Christianity and his baptism are otherwise than for the purpose of strengthening his claims to be a refugee. Therefore, the Tribunal is required under s.91R(3) of the Act to disregard this conduct in its assessment of his well-founded fear of persecution.
f)Clearly, the applicant’s conversion to Christianity was not part of his original claims when he lodged his application for a protection visa on 14 January 2013 and only became a ground of protection after his family and community became aware of his conversion to Christianity in mid 2013. In the circumstances, there was an insufficient logical or evidentiary basis for the Tribunal conclude that the applicant's conversion to Christianity was for the sole purpose of strengthening his refugee claims, when that claim was not part of his original protection claims. In other words, the Tribunal’s record demonstrates that the applicant’s original conversion was for personal reasons and not for the sole purpose of strengthening his refugee claims. The Tribunal has therefore misapplied section 9IR(3) of the Migration Act 1958, (Cth) and erred by disregarding the applicant's conduct in Australia, resulting in reviewable error.
Ground 5: Misapplication of law or failure to ask the correct question regarding the appellants' conversion from Islam to Christianity under the complementary criterion
5(a):The Tribunal erred by misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question with regard to the applicant’s conversion from Shia Islam to Christianity with regard to the complementary criterion. The correct question before the Tribunal was not whether or not the applicant’s conversion from Shia Islam to Christianity was “genuine” or “disingenuous” for the purposes of the complementary criterion. Rather, the correct question before the Tribunal was strictly whether the applicant faces a real risk of harm under the complementary criterion, given apostasy is punishable by death in Afghanistan per se, irrespective of whether the conversion is genuine or disingenuous.
5(b):Further, it was an irrelevant consideration whether the applicant's conversion from Shia Islam to Christianity was genuine or disingenuous for the purposes of the complementary criterion, given apostasy is punishable by death in Afghanistan per se.
5(c):As a consequence, the Tribunal erred at [95] by simply adopting the reasoning pursuant to section 91R(3) of the Migration Act 1958 (Cth) under the refugee criterion and by failing to provide adequate reasoning regarding apostasy under the complementary criterion pursuant to section 36(2)(aa) and each of the considerations regarding significant harm under 36(2A) of the Migration Act 1958 (Cth).
Particulars
a) At [94]. the Tribunal accepted:
The Tribunal has accepted that the applicant has attended Church and classes to study Christianity in Australia. The Tribunal has accepted that the applicant was baptised on 6 January 2013 at the Liberty Baptist Church at North Rocks.
b) At [95] of the decision record. the Tribunal erred by finding:
The Tribunal was not satisfied that his attendance at Church and classes to study Christianity and his baptism were otherwise than for the purpose of strengthening his claims to be a refugee and therefore disregarded this conduct, pursuant to s.91R(3) of the Act, in its assessment of his well-founded fear of persecution. The Tribunal is mindful that s.91R(3) does not apply with respect to conduct in the context of complementary protection. Having considered his conduct in Australia, the Tribunal does not accept that it has brought or is likely to bring him to the adverse attention of the Iranian authorities. Therefore, the Tribunal is not satisfied that there is a real risk that he will suffer significant harm for reason of his attendance at Church and classes and baptism in Australia if he returns to Iran now or in the reasonably foreseeable future.
Ground 6: The non-disclosure of information under section 438 of the Migration Act 1958 (Cth)
6. The non-disclosure of certain information under section 438 of the Migration Act 1958 (Cth) by the delegate to the Minister on 22 August 2013, in relation to the Department file CLF2012/2348498, folios 109, 110 and 111, (a) constituted a denial of procedural fairness or alternatively (b) not a process according to law.
Particulars
Denial of procedural fairness
a) If the Tribunal proceeded on the basis that the certificate under section 438 of the Migration Act 1958 (Cth) was valid, it is entirely unclear how the Tribunal considered the potential operation of s.438(3) or whether it considered s.438(3) at all. As such, there was been a denial of procedural fairness and accordingly a jurisdictional error is established.
b) On 15 June 2017, Dominic Eberl, solicitor for the AGS and the Minister, annexed and attached [a] section 438 certificate, dated 22 August 2013.
c) The documents referred to in the section 438 certificate are at folios 109, 110, and 111 of the file and attached as exhibit DE-2 of the affidavit of Dominic Eberl.
d) At Folio 111, annexed and attached as exhibit DE-2 of the affidavit of Dominic Eberl, is an email by the Forensic Document Examiner, which stated:
The document referred is an Iranian Court Summons, which I have assessed as a low quality generation. The document is a multi-generational copy, which degrages the original image capture and limits the ability to assess the document.
The poor quality reproduction influences the ability to determine positive/negative aspects of document production and issue characteristics to the degree that a reasoned evaluation is not possible. In the event the original documents or a higher quality scanned image becomes available, a further assessment could be completed.
e) At [48], the Tribunal had serious doubts about the authenticity of the summons provided by the applicant.
The Tribunal had serious doubts in relation to the authenticity of the Summons provided by the applicant in support of his case.
f) At [49], “[h]aving considered the applicant’s claims and all the evidence”, the Tribunal found that the “applicant is not a credible witness and that he fabricated his claims for the purpose of obtaining a Protection visa.”
g) Central to the adverse credibility finding against the applicant was the finding at [49] that the summons provided by the applicant was not authentic.
The Tribunal does not accept that the Summons provided by the applicant to the Department and the Tribunal is an authentic document. The Tribunal does not accept that the applicant is of adverse interest to the Iranian authorities in relation to the above claims.
h) It is entirely unclear how the Tribunal considered the documents in folio 111, or the potential operation of s 438(3) or whether it considered s 438(3) at all. The applicant was therefore denied procedural fairness.
Invalidity – the form of the section 438 of the Migration Act 1958 (Cth) was invalid
i) Alternatively, the section 438 certificate did not relate to a matter permitted under section 438(!) of the Migration Act 1958 C(th), with the result that it was invalid. For the Tribunal to have proceeded or acted on an invalid certificate was not a process according to law and of itself constituted jurisdictional error.
j) For the reasons particularized ag round (6)(a)-(h), the Forensic Document Report regarding folio 111, that a “reasoned evaluation” was not possible given the “poor quality reproduction” of the summons was relevant to the proceeding and central to the finding that the summons was not an authentic document and the adverse credibility finding against the applicant at [49].
k) In the circumstances, the failure to disclose the existence of the invalid certificate may have made a difference to the outcome.
Counsel for the applicant read an affidavit by the applicant made on 15 August 2017 in support of the application for an extension of time. That affidavit also supported the granting of leave for the amended application.
The solicitor for the Minister read the affidavit of Dominic Eberl made on 15 June 2017, to which is annexed a purported certificate under s.438 of the Migration Act and a bundle of document purportedly covered by that certificate. I also have before me as evidence the book of relevant documents filed on 21 March 2016.
Both the applicant and the Minister prepared pre-hearing submissions and also made oral submissions at the hearing of the extension of time application.
Reasons for refusing the extension of time
The Court must be satisfied that it is necessary in the interests of the administration of justice to make the order extending the statutory period.[1]
[1] Migration Act, s.477(2)(b)
Relevant factors which have been identified by the courts for considering whether it is in the interests of the administration of justice to make such an order are the extent of the delay, the explanation for the delay, the prejudice to the other party and whether the application is sufficiently arguable to justify the extension of time.[2]
[2] SZRIQ v Federal Court of Australia (2013) 236 FCR 442 at [46] – [48], SZTRY v Minister for Immigration [2015] FCAFC 86 at [6]
As noted above, the show cause application was lodged approximately 10 months after the expiry of the prescribed period in s.477(1) of the Migration Act. That is a significant delay.
The Minister does not assert any prejudice that would be suffered by the granting of an extension of time. The Minister, however, submits that there is no adequate explanation by the applicant for his delay in coming to court. I agree.
The applicant stated in support of his original application that his reason for filing out of time was that “I did not know that I only had 35 days to file my application.”
In his affidavit made on 15 August 2017, the applicant repeats that he was unaware of the time limit, and that he was directed to his current legal representative in February 2016 by a Justice of the Peace. He refers to having financial hardship and could not afford formal legal advice. I note, however, that the applicant was represented by migration agents during his protection visa application process and that a migration agent assisted him before the Tribunal.
The applicant’s explanation for his delay is not adequate. The applicant’s circumstances are the same as those confronting most, if not all, of applicants in this jurisdiction.
Notwithstanding these difficulties, counsel for the applicant strenuously sought to persuade me of the merit of the amended application. I am not persuaded by those submissions.
The applicant had sought protection because of a fear of harm in Iran as a convert from Islam to Christianity in Australia. The Tribunal rejected that claim and disregarded the applicant’s conduct in Australia, pursuant to s.91R(3) of the Migration Act.
In Ground 4, the applicant asserts that the Tribunal misapplied s.91R(3) of the Migration Act because there was not a sufficient logical or evidentiary basis for the Tribunal to make its finding at [75] that it was not satisfied that the applicant’s conduct was otherwise and for the purpose of strengthening his refugee claims. The applicant places emphasis on his assertion before the Tribunal that he initially did not claim a fear of harm in Iran by reason of his asserted conversion to Christianity but simply noted his conversion as a matter of his personal beliefs. Later, the applicant did rely upon that conversion after he allegedly told his parents and was threatened by his father. The applicant submits that the fact that the applicant only initially advanced his Christian faith as a matter of personal belief rather than a claim for protection supports the proposition that his conversion was not undertaken solely for the purpose of enhancing his protection claims.
This is a matter about which reasonable minds may differ.
In the Minister’s submission, the applicant selectively quotes from the Tribunal’s decision at [66] and appears to rely on that paragraph as a finding by the Tribunal. However, in that paragraph, the Tribunal does no more than summarise the applicant’s evidence. The critical findings on that evidence are found at [67]–[75]. I accept that submission. The Tribunal gives logical and cogent reasons why it did not accept the applicant’s claims to be a genuine Christian convert. Having come to that conclusion, the Tribunal then also concluded that it was not satisfied that the applicant’s attendance at Church and at classes to learn about Christianity and undertaking his baptism were otherwise than for the purpose of strengthening his claims to be a refugee.
Contrary to the applicant’s submissions at [25], the Tribunal’s conclusions did not rest on any misunderstanding that the applicant only relied on his conversion once this became known in Iran. Rather, the applicant’s claim that this had occurred was rejected by the Tribunal, as was his claim to have converted to Christianity.
In my view, the Tribunal’s reasons in support of its finding under s.91R(3) are logically supported by the Tribunal’s discussion of the evidence, and the conclusion reached by the Tribunal on that evidence was open to it. The Tribunal’s reasons disclose that it engaged in an active intellectual process in reaching its conclusion.
There is no substance to Ground 5.
The applicant’s submissions in relation to Ground 5 fail to engage cogently with the reasoning process of the Tribunal. Contrary to what is submitted at [26]–[28] of the applicant’s submissions, the Tribunal clearly understood that its findings in relation to s.91R(3) did not apply when considering complementary protection. Indeed at [95], the Tribunal expressly states that it is mindful that s.91R(3) does not apply with respect to conduct in the context of complementary protection. Having already rejected that the applicant was a genuine convert, the Tribunal then considered whether the activities he has undertaken in Australia would bring him to the adverse attention of the authorities in Iran. It concluded that, having regard to the activities he has engaged in while in Australia, it would not. The Tribunal expressly considered the issue of whether the applicant faces a real risk of harm due to his conduct in Australia.
Ground 6 of the amended application relates to what is said to be the “non-disclosure of certain information under section 438 of the Migration Act”.
The Minister acknowledges that there was a certificate issued under s.438(1)(a) of the Migration Act.[3] The three folios that are covered by that certificate are contained in annexure DE-2 to the affidavit of Mr Eberl.
[3] annexure DE-1 to the affidavit of Mr Eberl affirmed 15 June 2017
The Minister further concedes that the grounds relied on in the certificate do not disclose any basis on which the disclosure of these documents would be contrary to the public interest and the certificate is therefore invalid.
The Minister submitted that the documents purportedly covered by the certificate were not relevant to any issue in the review before the Tribunal. While it appears that the Tribunal did not disclose the existence of the certificate to the applicant, nor the documents purportedly covered by it, the Minister contends that the documents could not have made any difference to the outcome of the review and the applicant is not entitled to any relief as a result.[4]
[4] See AVO15 v Minister for Immigration [2017] FCA 566
The Minister also submits that this matter is distinguishable from the judgments in MZAFZ v Minister for Immigration (2016) 243 FCR 1 and Minister for Immigration v Singh (2016) 244 FCR 305 because there is nothing to suggest from the terms of the Tribunal decision that the Tribunal had any regard to the information contained in those documents.
The documents in issue are an exchange of emails concerning an attempted forensic examination of a court summons provided by the applicant in support of his claims before the Tribunal. The emails indicate that the summons is a poor quality reproduction and that no firm conclusion could be reached from the document about whether the document is genuine or not.
In my view, it is an open question whether the Tribunal had regard to the email exchange. At [48] and [49] of its decision the Tribunal said:[5]
The Tribunal has serious doubts in relation to the authenticity of the Summons provided by the applicant in support of his case. The Joint report from the Danish Immigration Service, the Norwegian LANDINFO and Danish Refugee Council’s fact-finding mission to Tehran, Iran, Ankara, Turkey and London stated as follows:
A Western embassy (1) mentioned that it is possible to buy legal documents in Iran and obtain genuine documents in a fraudulent manner. The source distinguished between genuine documents with false information and forged documents. It was noted that more often than not, it is the documents without any spelling mistakes that are found to be forgeries…
According to consular officers of the U.S. embassy in Ankara, documents are easy to get in Iran through bribery and connections. It is also possible to change documents through bribery. For instance, the source has seen cases where applicants for immigration benefits via a marriage to a U.S. citizen have been able to erase mention of a current spouse in Iran from their documents through a bribe to a civil official.
A response by the Canadian Immigration and Refugee Board (CIRB) dated 6 May 2009 included the following information on forged court documents in Iran: AI [Amnesty International] has no information on the relative difficulty in obtaining forged or false court documents in Iran. Anecdotal evidence suggests that within Iran forgeries are rarely used since the provenance of a document can be easily checked by reference to court or office registers. It is impossible to determine whether forged court documents found outside Iran are produced within or outside the country’.[6]
Having considered the applicant’s claims and all the evidence, the Tribunal finds that the applicant is not a credible witness and that he fabricated his claims for the purpose of obtaining a Protection visa. The Tribunal accepts that the applicant may have known an Arab girl called Sara in Iran. The Tribunal does not accept that he was in a girlfriend/boyfriend type of relationship with Sara or that they had a sexual relationship. It follows that the Tribunal does not accept any of the claims made by the applicant that flow from his claimed relationship with Sara. The Tribunal does not accept that the Summons provided by the applicant to the Department and the Tribunal is an authentic document. The Tribunal does not accept that the applicant is of adverse interest to the Iranian authorities in relation to the above claims.
[5] Relevant Documents (RD) 264
[6] U.K. Home Office, Iran: Country of Origin Information (COI) Report, 26 September 2013.
The Tribunal certainly had regard to the summons in reaching its decision and may well have perused the email exchange concerning the attempted forensic examination of the summons. In my view, however, no practical injustice resulted from the Tribunal’s failure to disclose the emails because the substance of them had already been disclosed to the applicant by the delegate in her decision at RD 139 in relation to the summons where the delegate stated:
The copy of the summons was referred to the Department’s Forensic Document Examiner to see if a non-original document could be authenticated. Due to the poor quality of the copy an assessment could not be made.
The disclosure of the emails to the applicant by the Tribunal would not have given him anything further than had already been disclosed by the delegate. It follows that there was no practical injustice and hence no procedural unfairness in the failure by the Tribunal to disclose the invalid certificate or the documents purportedly covered by it.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 31 August 2017
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