ANR18 v Minister for Home Affairs

[2018] FCCA 3446

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANR18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3446

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Safe Haven Enterprise visa – whether the Tribunal’s adverse findings were illogical or unreasonable – whether the Tribunal gave detailed consideration to the applicant’s claims and evidence – whether the Tribunal’s adverse finding lacks an evident and intelligible justification – disagreement with the Tribunal’s adverse findings – no arguable case of jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 5J, 36, 48B, 476

Applicant: ANR18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 69 of 2018

Judgment of: Judge Street

Hearing date: 26 November 2018

Date of Last Submission: 26 November 2018

Delivered at: Perth

Delivered on: 26 November 2018

REPRESENTATION

Solicitors for the Applicant: Mr R Jahnke
Estrin Saul Lawyers

Solicitors for the Respondents: Ms B Rayment
Sparke Helmore

ORDERS

1. Grant leave to the applicant to rely upon the amended application filed 12 November 2018.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDERS: 26 November 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

SYG 69 of 2018

ANR18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 8 January 2018 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Afghanistan and his claims were assessed in this country. The applicant arrived in Australia as an unauthorised maritime arrival on 6 December 2011. An earlier application for protection had been unsuccessfully advanced by the applicant and determined by a differently constituted Tribunal on 10 September 2012 and an appellant challenge had also been dismissed. It is apparent on the material before the Court that the Minister has exercised a discretion under s 48B of the Act to permit the applicant to make a further application for protection. No argument to the contrary was advanced and the Court draws the inference that that is what has occurred in the present case.

3. On 13 June 2017, the delegate found the applicant failed to meet the criteria for the grant of the Safe Haven Enterprise visa.

4. The applicant applied for review on 21 June 2017. The applicant was invited to and attended a hearing on 6 October 2017. Following the hearing on 6 October 2017, the Tribunal wrote to the applicant raising with the applicant that at the interview with the delegate, the applicant was asked questions about why he was afraid to return to Afghanistan and on what basis he would suffer harm there, and that in response the applicant expressed a fear of harm from terrorists due to ethnicity, being recognised as a Shia, and as the Tribunal understands it, because of his father’s profile as a Hazara elder. The notation includes that the applicant told the delegate that he no longer had a religion however he did not, in his responses, claim to fear harm from others from Afghanistan on that ground. The Tribunal identified that because of the applicant’s failure to advance a fear of harm on that ground when given the opportunity to do so may indicate that he does not generally fear harm on that basis.

5. In the applicant’s original application for protection, he identified himself as a Hazara Shia Muslim. In the application for the protection visa, following the exercise of the ministerial discretion, the applicant, in answer to the question, “Your religion (including denominations)”, identified himself as a Shia Muslim. That was completed on 12 December 2016. In a statutory declaration dated 12 May 2017, the applicant described himself as being of Hazara ethnicity and “not following a religion.”

6. The submissions to the Tribunal prior to the hearing on 4 October 2017 advanced that, despite having previously identified as a member of Shia Muslim faith, the applicant is currently an atheist and does not believe in or follow any religion. The submissions contend that the applicant does not in any way identify as a Shia Muslim or a non-practising Shia Muslim and now subscribes to atheism and rejects the central tenets of theism and completely disbelieves in the existence of God or Gods. The submission does advance that the applicant fears harm by reason of his atheist beliefs.

7. Submissions were advanced on behalf of the applicant through his migration agent in response to the invitation letter dated 23 October 2017. A further response was advanced on 8 November 2017 which also drew attention to the interview with the delegate in which the applicant was asked the question, “And what’s your religion,” and the applicant had responded, “I don’t have a religion.” The submission included the submissions advanced through the legal representative at that time. The submissions contended that the applicant advanced a claim of atheism at all stages of his protection visa and the review process. The submissions contended that the applicant’s credibility was one that should be accepted, and that the Tribunal should find that he is an atheist.

8. The Tribunal, in its reasons dated 8 January 2018, noted that the applicant claims to fear harm on the ground that the Taliban and other insurgents will harm him because of his father’s position in his father’s village, and that the applicant also claimed to fear harm on the ground that he has left Shia Islam and does not hold any religious belief.

9. The Tribunal made adverse credibility findings in relation to the applicant’s claims. Relevantly, the Tribunal found the applicant was not a witness of truth in relation to his claims to fear harm based on his religion. The Tribunal took into account that if the applicant genuinely feared harm in Afghanistan on the basis of not having a religion, he would have made that claim in his declaration and at the interview with the delegate when first given the opportunity to do so. The Tribunal found that the applicant’s failure to advance this claim at those opportunities, when considered cumulatively, led the Tribunal to find that the applicant does not in fact fear harm on this ground and, further, that the Tribunal had no credible evidence about the applicant’s religious beliefs and practices at the present time whilst he has been in Australia.

10. The Tribunal found the applicant remains a Shia Muslim who willingly undertook religious practice according to his evidence. The Tribunal found it has no credible evidence before it that the applicant would or would want to behave any differently upon return to Afghanistan.

11. The Tribunal found that the risk of the applicant suffering harm in Afghanistan is remote. The Tribunal found there is not a real chance the applicant would suffer serious harm in Afghanistan. The Tribunal found the applicant does not have a well-founded fear of persecution under the meaning of s 5J(1) of the Act.

12. The Tribunal found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia and returned to Afghanistan, there is a real risk the applicant will suffer significant harm.

13. The Tribunal found the applicant failed to meet the criteria in s 36(2)(a) and s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. The ground in the amended application is as follows:

   1. The Administrative Appeals Tribunal erred by illogically or unreasonably using the supposed lateness of the Applicant in raising a claim to a fear of real risk of harm because of his lack of religion as a basis for rejecting the evidence of fact that the Applicant did not have a religion.

Ground 1

1. Mr Jahnke, solicitor on behalf of the applicant, contended that the Tribunal had reasoned solely in relation to the applicant’s claim to fear harm by reason of atheism on the basis of the applicant’s failure to make a claim for fear of harm sooner than he did and that this was illogical and unreasonable. Mr Jahnke submitted that the adverse finding by the Tribunal in relation to the applicant’s claim to be an atheist was not logical and was not open on the evidence. Mr Jahnke submitted that the Tribunal had reasoned, effectively, solely by reference to the lateness of the applicant raising the claim in its rejection for the proposition of the applicant not having a religion.

2. The Tribunal’s reasons must be read as a whole. The Tribunal first addressed the applicant’s claim to fear harm based on his father’s position. The Tribunal identified that the applicant’s father has returned to Afghanistan. The Tribunal identified assertions advanced in relation to the Taliban making an announcement to locals in respect of the applicant’s father. The Tribunal referred to asking the applicant whether he had remained in contact with his father and explored with the applicant whether his father had been attacked or harmed since returning to Afghanistan, and the applicant said “no”. The Tribunal also took into account that the applicant himself had not been attacked or harmed by anyone in Afghanistan.

3. The Tribunal raised with the applicant that in his statutory declaration he made no mention of the evidence he gave at the hearing in respect of the Taliban announcement that if people in the area saw his father they had to tell the Taliban. The Tribunal referred to the applicant’s response. The Tribunal rejected the applicant’s explanation. The Tribunal found that if the applicant’s claim about the announcement was true it would have been mentioned in the declaration. It was in these circumstances the Tribunal did not believe that the Taliban had made an announcement and the Tribunal disbelieved the applicant’s evidence that his brother told him that and his evidence that his mother told him that the Taliban was still after his father.

4. The Tribunal then turned to the issue of the applicant’s fear of harm on the ground of religion. The Tribunal identified exploring with the applicant whether he was a practicing Muslim when he lived in Afghanistan, and the applicant’s response was that he was but he did not do that strongly. The Tribunal explored the activities that the applicant would engage in, in that regard, and had engaged in in Afghanistan. The Tribunal found that the applicant when living in Afghanistan saw himself as a Shia Muslim but not as a strong believer. The Tribunal identified the applicant having disagreement with part of the tenets of Islam.

5. The Tribunal referred to the applicant and his brothers all living together in relation to their activities. The Tribunal raised with the applicant when it was that he decided not to believe in Islam or God, and the applicant asserted that it happened gradually and that over the last year he had stopped believing in religion or God completely. The applicant asserted he had not conveyed that view to his father.

6. The applicant alleged he told his wife and that he had told his brothers he no longer has a religion and does not believe in God. The Tribunal put to the applicant that if his father knew about that and had not done anything in response, then he would not harm the applicant from upholding any religious belief. The applicant asserted that his father was someone who would not beat his children or harm them and would just be upset. The Tribunal referred to an incident in which the applicant’s father did beat a particular child.

7. The Tribunal turned to the issue of the applicant’s omission from his first statement of an actual fear of harm based on atheism. The Tribunal identified what was said in the statutory declaration dated 12 May 2017. In that statutory declaration, the applicant had referred to being a Hazara Shia, though not being a practicing Shia, and that he will be perceived to be Shia and fearing harm on that basis. The Tribunal summarised the applicant’s claims in that regard at paragraph 22. The Tribunal correctly identified that the applicant had said in the statutory declaration that he was not a practicing Shia and correctly identified that the applicant did not say that he was an atheist.

8. The Tribunal correctly identified that the applicant said that he simply had no religion. The Tribunal also noted that the applicant did not actually claim to have abandoned Shia Islam. The Tribunal noted that the applicant’s fear of harm was expressed on the ground that he would still be perceived as a Shia because of his ethnicity. The Tribunal noted that the applicant did not himself advance a claim to fear harm from anyone in Afghanistan on the ground that he considered himself as not having any religion, including no longer being a Shia Muslim. The Tribunal, in that regard, was clearly referring to the statutory declaration and the document completed by the applicant in support of the visa application.

9. The Tribunal noted that at the hearing it put to the applicant that the applicant agreed that he did not claim to fear harm on the ground of atheism in his declaration. The Tribunal referred to what occurred at the interview with the delegate when the applicant was asked if he was a Muslim and saying he was not, and referred to the representative’s submission to the effect that the applicant would not identify as a Muslim. The Tribunal found that none of those responses from the applicant explained why, in the statutory declaration of May 2017, the applicant did not express any fear of harm on the ground that he no longer followed a religion or no longer held religious beliefs of any kind.

10. The Tribunal took into account, by the time the applicant made the declaration, he had decided not to practice religion and also decided that he did not have any religious belief, in other words, to have a belief in Islam or God. The Tribunal found the applicant’s failure to express in the declaration a fear of harm based on his decision not to practice religion and not to believe in religion cast significant doubts over the veracity of the applicant’s evidence about this and the applicant’s claim to genuinely fear harm on this ground. The Tribunal identified that this issue was raised with the representative and the argument was advanced that the declaration was sparse and was not intended to be exhaustive. The Tribunal found the declaration was one that, even if not detailed, it would not have prevented the applicant from expressing a fear of harm based on his decision, by that time, not to practice or believe in religion.

11. The Tribunal referred to what had occurred before the delegate and the delegate asking the applicant why he could not return to Afghanistan. The Tribunal found that, although given the opportunities to do so, the applicant did say early in the interview he no longer had a religion, but that the applicant did not make a claim to fear harm from anybody in Afghanistan on that ground.

12. The Tribunal found it was only after a break in the interview that the applicant’s representative advanced the submission in addition that the applicant feared harm from Muslims because he did not have a religion. The Tribunal noted that the applicant himself advanced after that submission that he would be unable to hide what he did or did not believe in Afghanistan. The Tribunal identified having concerns that the applicant did not express the fear of harm on this ground before the break was taken in the interview and when the delegate had specifically asked the applicant why he was afraid to return to Afghanistan and why he thought that he would be targeted there.

13. The Tribunal found unconvincing the applicant’s failure to advance the claim when given ample opportunity by the delegate to do so, and found that there had been an adoption only after the break and after the representative had made claims about it. The Tribunal found there was no plausible reason the applicant, if genuinely fearing harm on this ground, would not have advanced that fear when questioned closely by the delegate as to why he would be at risk of harm in Afghanistan. The Tribunal found the applicant’s failure to do so again cast significant doubt over the credibility of the applicant’s claims and evidence about this matter.

14. The Tribunal referred to the correspondence raising the issue with the applicant and the applicant’s representative’s response. The Tribunal addressed in detail the response and agreed that the failure to raise a claim in an earlier opportunity does not automatically mean that it is false when there is a satisfactory explanation as to why the claim was not raised at the earlier stage. The Tribunal engaged with the submissions that were advanced in relation to atheism, and the Tribunal identified reasons why the Tribunal disagreed with the submissions.

15. The Tribunal found the applicant was given opportunities by the delegate to claim to fear harm on the basis of atheism and he did not make that claim. The Tribunal found the fact that a representative made the claim on his behalf did not overcome the Tribunal’s credibility concerns. The Tribunal found the applicant had been given ample opportunity by the delegate to advance the claim and did not advance a claim to fear harm because he no longer had a religion.

16. The Tribunal took into account the submissions and turned to weigh the evidence in that regard. The Tribunal noted that it had put the applicant on notice that although the delegate found credible certain aspects of his evidence, the Tribunal had to decide that matter for itself. The Tribunal referred to the applicant’s claimed fear of harm on the basis of his father’s profile and found the father had returned to Afghanistan and the finding that the applicant was not attacked or harmed in Afghanistan.

17. The Tribunal referred to the applicant’s claims based on religion and made a finding that the applicant on this issue was not a witness of truth. That finding took into account the matters referred to above, in making the adverse finding by the Tribunal.

18. The adverse finding that the applicant was not a witness of truth was open to the Tribunal for the reasons given by the Tribunal as referred to above and cannot be said to be illogical or unreasonable. The Tribunal gave detailed consideration to the applicant’s claims, evidence and submissions in relation to the assertion that he was an atheist, and the Tribunal’s adverse finding in that regard cannot be said to lack an evident and intelligible justification. The Tribunal’s reasons in that regard refer to the opportunities the applicant had been given to him to raise the claim and the absence of the same in his statutory declaration, as well as in response to those opportunities.

19. It was open to the Tribunal in these circumstances to find that the applicant remains a Shia Muslim. That finding cannot be said to lack an evident and intelligible justification. The proposition that there was no evidence to support the adverse findings advanced by Mr Jahnke is without substance. The Tribunal’s reasons, as summarised above, are based on the evidence and the adverse findings were logical and rational. The proposition that there was no logical connection is, in substance, a disagreement with the adverse findings.

20. The proposition that the Tribunal had reasoned solely by reference to an omission in the statutory declaration is incorrect for the reasons the Court has summarised above. The Tribunal also took into account the opportunities that the applicant had before the delegate prior to the submission being advanced by the legal representative. Further it is apparent on the face of the material before the Court that the applicant had in his application identified himself as a Shia Muslim. The adverse findings by the Tribunal in respect of the applicant’s claim to be an atheist cannot be said to be legally unreasonable. No jurisdictional error as alleged in ground 1 is made out.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 11 January 2019