AMF15 v Minister for Immigration

[2015] FCCA 1307

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMF15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1307

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – show cause hearing – no jurisdictional error – application dismissed.

Legislation: 

Federal Circuit Court Rules 2001 r.44.12
Migration Act 1958 ss.36(2)(a), 36(2)(aa), 476

Applicant: AMF15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1048 of 2015

Judgment of: Judge Street

Hearing date: 14 May 2015

Date of Last Submission: 14 May 2015

Delivered at: Sydney

Delivered on: 14 May 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent: Mr E. Elliott
DLA Piper Australia

ORDERS

1. The application be dismissed under Rule 44.12 of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs fixed in the sum of $2900.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1048 of 2015

AMF15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW 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 made by the Tribunal on 13 March 2015 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Iran and his claims were assessed against that country.  The applicant applied for protection on 24 December 2012, and the delegate refused to grant the visa on 12 December 2013.  The applicant applied for review on 23 December 2013 and appeared before the Tribunal on 25 February 2015 to give evidence and present arguments, and was assisted at the hearing by the presence of his brother, as well as by an interpreter, and was represented by a migration agent.

3. The applicant also provided submissions to the Tribunal, and a statutory declaration after the hearing. The respondent has moved for an immediate show cause hearing under r.44.12. The application identifies the following grounds:

   1. 1^st and 2.d respondent made jurisdictional error in apply relevant immigration laws regarding protection and asylum in Australia while making decision on my application for protection.

   2. 1^st and 2^nd respondent rejected my protection claims very unfairly in the absence of any adverse evidence and therefore breached procedural fairness.

4. The first respondent submitted that the first ground failed to identify any arguable jurisdictional error, and that it was clear from the decision of the Tribunal that the Tribunal had correctly identified the applicable law, and had had regard to the relevant Ministerial Direction, and that ground 1 failed to disclose any jurisdictional error.  I accept the first respondent’s submissions in this regard.

5. The first respondent submitted that the second ground appeared to be an impermissible challenge to the adverse findings of evidence.  It was open to the Tribunal on the material before the Tribunal to reject the applicant’s evidence, and a rejection of the applicant’s evidence does not give rise to any denial of procedural unfairness. 

6. The first respondent submitted that it is clear the applicant had a genuine hearing, and that this is not a case where there is any alleged noncompliance with the statutory requirements, and that the applicant had genuine opportunity to respond to the dispositive issues at that hearing.  I accept the first respondent’s submissions that there is no substance in relation to the second ground, and that the second ground fails to disclose any arguable jurisdictional error. 

7. The Tribunal carefully set out the relevant law and took into account the Ministerial Direction.  The Tribunal carefully set out the applicant’s claims of evidence and materially made adverse findings as follows:

   26. Having considered these claims and the evidence, the Tribunal finds that there is no real chance that the applicant would be at risk of persecution on the grounds of actual or imputed political opinion for this reason if he returns to Iran now or in the reasonably foreseeable future.

   …

   29. The Tribunal did not find the applicant’s account of this incident to be convincing. The Tribunal has serious concerns about the applicant’s credibility. The Tribunal is of the view that he fabricated these claims. The Tribunal does not accept that in 2009 or 2010 the applicant was hit by the Basij with a baton on his head and his stomach cut or that he was hospitalised for 10 days for this reason.

   …

   38. The Tribunal finds the applicant’s evidence in relation to his relationship with [S] and his interactions with [S]’s husband to be implausible, inconsistent and unconvincing. The Tribunal finds it implausible that a married Iranian woman would have had the freedom to frequent coffee shops on her own and form a relationship with a single young man. The Tribunal finds it implausible that [S] would have asked the applicant to drop her off at a street near her house when there was a risk of her being discovered by her husband or recognised by friends or neighbours. The Tribunal finds it implausible that [S] would have risked being stopped by the Basij or the Sepah whilst in the applicant’s car when she was a married woman in a car alone with a young man who was not a relative particularly if her husband was a high ranking officer in the Sepah

   …

   61. Having considered the applicant’s claims and the evidence, the Tribunal finds his evidence to be inconsistent and implausible and is not persuaded by it. The Tribunal finds that the applicant is not a witness of truth and fabricated his claims in relation to the sale of alcohol. The Tribunal does not accept that the applicant and his brother, Ali Reza, set up a business to sell alcohol in Iran or that they worked with two men called [X] and [Y]. It follows that the Tribunal does not accept any of his claims that flow from that. The Tribunal does not accept that the Summons is an authentic document or that the applicant and his brother are of adverse interest to the Iranian authorities for this reason.

   …

   78. Having considered the above claims and all the evidence, the Tribunal finds that the applicant is not a credible witness. The Tribunal accepts that, whilst in Australia, the applicant has attended Church and Bible study classes and was baptized on 7 December 2014. The Tribunal does not accept that the applicant is a genuine convert to Christianity. It follows that the Tribunal does not accept that he has a commitment to practice Christianity, attend Church, pray or proselytize if he returns to Iran now or in the reasonably foreseeable future. The Tribunal does not accept that he is of adverse interest to the Iranian authorities because of his religious beliefs.

   79. 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.

   80. The Tribunal has had regard to the submissions made by the applicant’s migration agent. The Tribunal has had regard to the applicant’s work references provided to the Tribunal.

   …

   98. The Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm on his return to Iran.

   99. The Tribunal has given the applicant the benefit of the doubt in relation to his claims about his father’s second cousin. The Tribunal has found that his inability to obtain a government job does not amount to serious harm. The Tribunal is not satisfied that this amounts to significant harm as defined. The Tribunal has rejected his claim that he could not get approval for business enterprises.

   100. The Tribunal has rejected the applicant’s claims in relation to the Basij in 2009 or 2010. 101. The Tribunal has rejected the entirety of the applicant’s claims in relation to him having a relationship with a woman named [S] and all his claims that flowed from that.

   102. The Tribunal has accepted that the applicant and his brother had a coffee shop. The Tribunal has accepted that the Basij visited the coffee shop for the purpose of enforcing the morality code. The Tribunal has accepted that the coffee shop was closed down by the Amaken because they did not have a licence and did not comply with Iran’s morality code. The Tribunal has not accepted that the applicant or his brother is of ongoing adverse interest to the Iranian authorities for this reason.

   103. The Tribunal has rejected the entirety of the applicant’s claims in relation to the sale of alcohol and what flowed from that. The Tribunal did not accept that the Summons is an authentic document or that the applicant and his brother are of adverse interest to the Iranian authorities for this reason.

   104. The Tribunal accepted that the applicant has attended Church and Bible study classes and was baptized on 7 December 2014. The Tribunal did not accept that the applicant is a genuine convert to Christianity. The Tribunal did not accept that he has a commitment to practice Christianity, attend Church or proselytize if he returns to Iran now or in the reasonably foreseeable future. The Tribunal did not accept that he is of adverse interest to the Iranian authorities because of his religious beliefs.

   105. The Tribunal was not satisfied that his attendance at Church and Bible study classes 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.

   106. The Tribunal has considered the applicant’s claims and evidence in relation to being a failed asylum seeker from a Western country. The Tribunal has considered the submissions and country information provided by the applicant’s migration agent and other country information referred to above.

   107. The Tribunal has accepted that the Iranian authorities may suspect that the applicant has sought asylum in Australia in view of his long absence from Iran. The Tribunal has not accepted that the Iranian authorities would necessarily impute him with an adverse profile or opinion for this reason. The Tribunal has not accepted that he will be accused of being a spy and will be imprisoned. The Tribunal has not accepted that he will not be able to return to Iran.

   108. The Tribunal has accepted that the applicant may be detained at the airport in Iran for the purpose of questioning in relation to his passport. On the evidence and country information before it and for the reasons given above, the Tribunal is not satisfied that this would amount to significant harm.

   109. Having considered all of the claims, individually and cumulatively, the Tribunal is not satisfied, for the reasons given above, that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Iran now or in the reasonably foreseeable future.

   110. Accordingly, the Tribunal is not satisfied that 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 he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa).

8. I am clearly satisfied that the application fails to disclose any arguable jurisdictional error and that this is an appropriate case to dismiss under r.44.12. The application is dismissed under r.44.12.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  19 May 2015