Anu17 v Minister for Immigration

[2019] FCCA 3211

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANU17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3211

Catchwords:
MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to decision of Immigration Assessment Authority (Authority) affirming decision not to grant a Temporary Protection visa – whether Authority failed to consider claim – whether Authority made jurisdictional error by failing to consider cumulatively each of the elements of the claims Authority did consider – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J(3), 476

Cases cited:

Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695

First Applicant: ANU17

Second Applicant: ANV17

Third Applicant: ANX17

Fourth Applicant: AOA17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 391 of 2017

Judgment of: Judge Manousaridis

Hearing date: 8 October 2019

Date of Last Submission: 8 October 2019

Delivered at: Sydney

Delivered on: 13 November 2019

REPRESENTATION

Solicitors for the Applicants: Mr N Dobbie of Dobbie And Devine Immigration Lawyers Pty Ltd

Solicitors for the First Respondent: Ms K Evans of Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The first and second applicants pay the first respondent’s costs set in the amount of $6,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 391 of 2017

ANU17

First Applicant

ANV17

Second Applicant

ANX17

Third Applicant

AOA17

Fourth Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Temporary Protection visa (TPV) raises two questions. The first is whether there was before the Authority a claim the Authority failed to consider. The second is whether the Authority failed to consider cumulatively the claims that were before it.

2. Given the questions that arise, it will be necessary to set out the claims the applicants made, and the course of proceedings both before the delegate and the Authority.

Claims for protection

1. On 16 February 2016 the first applicant (applicant), his wife, and their two children lodged an application for a TPV. That application was based on claims for protection the applicant made in a statement that formed part of the application.[1] The applicant’s claims were as follows:

   [1] CB101-104

   a)The applicant is a citizen of Iran, and grew up in a very strict Shia Muslim family. The applicant’s cousin’s husband (Mr Z) is the substitute Friday prayer leader, and (at the time the applicant made the statement) Mr Z was a candidate for election to a particular assembly. The applicant’s maternal cousin (Mr A) is a clergyman, and Mr A’s brother (Mr M) is a candidate for election to Parliament, as well as having a position in relation to Mecca pilgrimage affairs. Each of Mr Z, Mr A, and Mr M hold strict religious views.

   b)When the applicant was fifteen, during a compulsory religious class at school, the teacher singled him out by questioning him about the way he dressed. The teacher told the applicant his dress was not appropriate according to the Islamic dress code. The resulted in the applicant being mocked by the other students.

   c)When he was young the applicant was questioned by the “Komiteh” a number of times, mainly because of the way he was dressed.[2] The applicant was mistreated, and he had to promise to dress appropriately before he was released.

   d)On other occasions the applicant and his wife were stopped and questioned either about their relationship or about the way they dressed.

   e)The applicant also had problems when he began working at a company. He did not want to join the Basij, and he did not participate in religious functions. The applicant sometimes talked to his colleagues about religion and government. Subsequently, on two occasions, the “Ettela’at” contacted the applicant stating that the applicant talked too much, and that he had better watch out.[3]

   f)In 2010 the applicant started to read the Quran in Persian to understand what it said. The more he read it, the more he disbelieved it, and the more questions came to his mind.

   g)In October 2011 the applicant registered his name to accompany his father to Mecca for a Haj pilgrimage. The applicant did so, not because he personally wanted to go, but to accompany his father who needed a carer.

   h)In August 2011, when visiting his father, Mr Z and Mr M also visited the applicant’s father. While discussing with Mr M the ceremonies in Mecca, the applicant said he really did not believe in it, and that he was going to Mecca only because his father was going. The applicant also told Mr M that going to Mecca was pointless; that the “Quran was not the god’s book because its instructions and rules were not just and these could not be god’s word’s”; and that it would be “better if we donated the Haj money to charity rather than on “visiting god’s house””. Mr M said it appeared the applicant was denying Islam, and he should not be talking like that because the applicant could be considered an apostate.

   i)After the conversation with Mr M the applicant felt very sorry for expressing his opinions to Mr M because he knew he had become emotional at the time, and he really did not consider the consequences of what he was saying, and to whom he expressed his opinion; but it was too late, “the water was spilled”.

   j)A few days later, another cousin of the applicant informed the applicant he had visited the applicant’s auntie, the mother of Mr M, and that the applicant’s auntie overheard the applicant’s name being mentioned in a conversation between Mr Z and Mr M, with Mr Z angrily stating that he was already suspicious of the applicant’s thoughts, and was now certain about it. On hearing this the applicant became frightened because he was worried of being accused of apostasy, and he knew what the punishment for apostasy was. The applicant then arranged to leave Iran with his family.

   k)The applicant does not want to return to Iran because the Iranian authorities will detain him. He knows that Mr Z has given the applicant’s name to the Iranian authorities as an apostate. Further, having sought asylum in Australia by itself is a crime in Iran, and this will cause the Iranian authorities to accuse the applicant of being anti-government and anti-religion.

   l)The applicant is also worried his wife and children will suffer the same fate. The applicant’s sons have grown up in Australia, and their “belief and way of life is Australia”. They do not practice Islam, and they will not be able to pretend practising Islam if they return to Iran. The applicant’s sons could easily put themselves at risk of persecution by the authorities if the expressed their true opinion about the Iranian government. The applicant does not want his son to grow up in a society where they have to pretend to be something they are not.

   [2] According to country information identified by the delegate (CB279), the “Komiteh” was utilised by the fundamentalist clergy following the 1979 Islamic Revolution of Iran to suppress opposition to fundamentalist rule. It is the national disciplinary patrol responsible for enforcing Islamic regulations on social behaviour, having broad powers of arrest as well as influence over all aspects of Iranian society.

   [3] According to the delegate (CB280) the Ettela’at is the Iranian Ministry of Intelligence.

2. The delegate interviewed the applicant on 9 August 2016 (TPV interview). The applicant there said that he stopped attending the mosque in middle or junior school, which was when he was approximately 12 or 13 years old; that in 2010 he completely stopped any practice of Islam, and before that time his practice was irregular; that on the occasion he had interactions with the Komiteh during high school they stopped him, put him in a car, and the car “was just driving along”, but, after promising he would not dress in the manner he dressed, the Komiteh released him;[4] during his entry interview the applicant did not refer to his conversation with Mr M as a reason for departing Iran, or his anti-Islamic views because he feared openly expressing his opinion.[5]

   [4] CB279

   [5] CB285

3. After the TPV interview the applicant’s representative provided to the delegate further submissions that addressed a number of matters, which included the following:[6]

   a)One was why the applicant did not disclose his “disbelief in Islam” at his arrival interview. The representative submitted the applicant “was afraid to say that he did not believe in Islam because he has never had this opportunity in the past”; and there were rumours in the detention centre there was a chance the applicant and his family were going to be returned to Iran.[7]

   b)A second matter the submissions addressed was why the applicant did not mention at his arrival interview that he was worried about being accused of apostasy. The representative submitted the applicant “did not want his children to grow up experiencing the discriminations and fears that he has had all his life because of his ideology”.[8]

   c)A third matter concerned people who do not practice Islam in Iran not being noticed. The representative submitted the applicant and his family’s not practising Islam would not go unnoticed, “particularly his two children because often children in Iran learn from childhood to disguise their true believes [sic] and at least pretend they believe in Islam but [the applicant’s] children have not acquired this skill because they have lived in Australia for so many years”.[9]

   [6] CB259-265

   [7] CB260

   [8] CB260

   [9] CB262

4. After the delegate’s decision was referred to the Authority, by letter dated 14 October 2016 the applicant’s representative made submissions to the Authority.[10] Relevant are the following submissions (errors in original):[11]

   In any case, the abandonment of Islam is considered apostasy which encompasses acts of conversion or atheism. Such persons report being ostracised or harmed by their community and severe punishment by the authorities. They must hide their religious view to avoid persecution. It is a well established legal principle that decision makers must consider the threat of serious harm not the ability to avoid that harm, ie. That if a convert or atheist was to cease to hide his views on religion, he/she would definitely experience serious harm. . . .

   The quote above states clearly that it is a precondition to avoiding problems that a convert must behave discretely . . . . Even though there “are examples” of converts who have enjoyed untroubled lives for many years, the information preceding that statement must also be taken into account to give context to that statement. Only converts who “behaved discreetly” have managed to enjoy untroubled lives. Those who are reported will face problems with the authorities. The “examples” of those who manage to live discreetly and avoid problems for many years are only examples and are not representative of the risks faced by all converts.

   It is submitted that the same applies to any person who has openly abandoned the Islamic faith. They too must live discreetly so as to avoid persecution.

   [10] CB317

   [11] CB318

Authority’s reasons

1. The Authority accepted the applicant’s evidence about his religious practices during his upbringing, and that he only practised Islam intermittently until 2010 when he ceased to practice;[12] the applicant was stopped by the Komiteh on two occasions when he was a teenager, and on two occasions when he was with his wife, and on each occasion the Komiteh questioned the applicant and forced him to provide a verbal undertaking for his dress;[13] the applicant received two calls from the Ettela’at, one in 2009, and the other in 2011, because of his behaviour at work, and that he was told he talked too much;[14] and that applicant has the three relatives, Mr Z, Mr A, and Mr M, all of whom are religious, hold religious positions, and are connected to the Iranian authorities, and that these relatives are aware of the applicant’s beliefs and that he does not practice Islam.[15]

   [12] CB334, [13]

   [13] CB335, [14]

   [14] CB335, [15]

   [15] CB335, [17]

2. The Authority, however, did not accept the applicant’s relatives have any adverse interest in the applicant, or that the Iranian authorities have any adverse interest in the applicant because of his not practising Islam. Nor did the Authority accept the applicant has a profile of any interest to the Iranian authorities, or his relatives, or anyone else, such as would give rise to a real chance the applicant will face harm on that basis now or in the reasonably foreseeable future.[16] The Authority relied on the following matters:

   a)The applicant was able to reside in Iran for two months after his conversation with Mr M, and he did not face any harm from his three relatives or anyone else in the Iran government during that time.[17]

   b)The applicant did not in his arrival interview refer to his conversation with Mr M, or that he feared harm because he did not practice Islam.[18]

   c)The applicant and his dependents left Iran lawfully using their own genuine travel documents, with no apparent adverse interest shown by the authorities.[19]

   d)The applicant was able to maintain his employment in a workplace where “they were aware of his disbelief in Islam”, and where the Ettela’at were also aware of his conversations at work and of his lack of religious practice which, although resulting in their calling the applicant twice, the Ettela’at, did not pursue the applicant for being an apostate.[20]

   e)The applicant had no further encounters with the Ettela’at after 2011.[21]

   f)The applicant refused to join the Basij, and he did not attend any religious functions at work.[22]

   [16] CB336, [19]

   [17] CB335, [17]

   [18] CB335, [17]

   [19] CB335, [17]

   [20] CB335, [18]

   [21] CB335, [15]

   [22] CB335, [15]

3. The Authority also found that while the applicant was born into a Shia Muslim family, he does not practice Islam, and he will not practice Islam on his return to Iran. The Authority, however, was not satisfied there is a real chance the applicant will face any harm on his return to Iran on the basis of his not practising Islam, now or in the reasonably foreseeable future.[23] The Authority relied on the findings it had already made. It also relied on country information which notes that although under Iranian law a Muslim who leaves his or her faith or converts to another religion may be charged with apostasy, it is unlikely that individuals will be charged with apostasy; that it is highly unlikely that the government would monitor religious observance by Iranians; that perceived apostates are only likely to come to the attention of Iranians through public manifestations of their new faith, or attempts at proselytization, or attendance at a house church, or via informants; and that atheists are unlikely to come to the attention of security authorities unless they seek to publicise their views.[24]

   [23] CB336, [25]

   [24] CB336, [22]

4. The Authority next considered whether the applicant was exposed to the risk of harm on the basis that, if he were to return to Iran, he would do so as a failed asylum seeker. The Authority accepted the applicants may be questioned by the authorities on their returned to Iran,[25] but it was not satisfied there is a real chance the applicant and his family will face any harm because the applicants sought asylum in Australia, or because they would return as failed asylum seekers.[26] The Authority relied on country information, and the particular circumstances of the applicants.

   [25] CB338, [33]

   [26] CB338, [33]

5. The country information to which the Authority relied indicated that Iranian authorities regularly accept Iranians with valid Iranian travel documents returning involuntarily or even those who do not have such documents, provided the authorities are persuaded the returnees are Iranian; that officials do not attempt to prosecute voluntary returnees, largely because most failed asylum seekers leave Iran legally; returnees will generally move quickly through airports without official interest; where temporary travel documents have been issued by Iranian diplomatic representatives outside Iran, authorities at the airport in Iran will be forewarned of the person’s return; Canadian authorities reported that Iranians who have left the country on their passports and are returned on a laissez-passer will be questioned by the immigration police at the airport for a few hours, but no one has been arrested when travelling by such means; the Iranian authorities will only question returnees if the individual had something to attract the specific attention of the authorities; and it is not a criminal offence in Iran for any Iranian to ask for asylum in another country.[27] As for the circumstances of the applicants, the Authority relied on the applicant and his family having departed Iran lawfully using genuinely obtained Iranian passports in their own identify, and its findings that the applicants are not of interest to the Iranian authorities for any credible reason.[28]

   [27] CB337-338, [31], [32]

   [28] CB338, [33]

6. The Authority also considered whether the second applicant and the applicant’s children face a real risk of harm because they do not practice Islam, but, for reasons it is not necessary to set out, the Authority did not consider that gave rise to a real chance of harm.[29]

   [29] CB337, [26]

Ground of application

1. The applicants rely on the following ground:

   The Immigration Assessment Authority failed to discharge its core function to review the decision.

   Particulars:

   (A)The Immigration Authority (‘the Authority’) failed to discharge its core function to review the delegate’s decision, thereby committing jurisdictional error:

   (i)The First Applicant claimed to be an atheist and claimed that one has to disguise one’s true beliefs in Iran to avoid getting into trouble. The Authority failed to determine whether the First Applicant would withhold expressing his atheist beliefs out of a fear of harm from the authorities and or its agents and or from members of the general public.

   (ii)The Authority failed to consider the claims made by the First Applicant on a cumulative basis in relation to whether he and or his family members had a well-founded fear of persecution.

2. Although stated in one ground, ground 1 contains two claims.

Paragraph (i) of particulars – failure to consider claim

1. In their written submissions, the applicants submit there was before the Authority a claim to the effect that the applicant would have to hide his atheist beliefs to avoid harm. The applicants submit that the claim arose from the following matters:[30]

   a)the applicant’s having expressed the statement to Mr M that he considered going to Mecca was pointless, that the Qur’an was not God’s book and could not be believed, and his feeling sorry for having stated these words because he did not consider the consequences of stating them;[31]

   b)the applicant’s evidence that he feared for his wife and sons because his sons did not practice Islam and would not be able to pretend to practice Islam if they returned to Iran, and that they would place themselves at risk of persecution if they expressed their true opinion about the Iranian government;[32]

   c)the applicant did not want his sons to grow up in a society where they would have to pretend to be something they are not;[33]

   d)the applicant’s representative having submitted that the applicant “was afraid to say that he did not believe in Islam because he has never had this opportunity in the past”;[34]

   e)the applicant’s representative having submitted the applicant “did not want his children to grow up experiencing the discriminations and fears that he has had all his life because of his ideology”;[35]

   f)the applicant’s representative having submitted that the applicant and his family’s not practising Islam would not go unnoticed, “particularly his two children because often children in Iran learn from childhood to disguise their true believes [sic] and at least pretend they believe in Islam but [the applicant’s] children have not acquired this skill because they have lived in Australia for so many years”;[36] and

   g)the submissions the applicant’s representative made to the Authority in her letter dated 14 October 2016, and in particular, the submission that persons who have abandoned Islam “must hide their religious views to avoid persecution”.[37]

   [30] Applicant’s Outline of Submissions, [17]

   [31] Applicant’s Outline of Submissions, [17], [5.9], referring to CB103, [16]

   [32] Applicant’s Outline of Submissions, [17], [5.14], referring to CB103-104, [23]

   [33] Applicant’s Outline of Submissions, [17], [5.17], referring to CB104, [27]

   [34] Applicant’s Outline of Submissions, [17], [8], referring to CB260

   [35] Applicant’s Outline of Submissions, [17], [9], referring to CB260

   [36] Applicant’s Outline of Submissions, [17], [11], referring to CB262

   [37] Applicant’s Outline of Submissions, [17], [15], referring to CB318

1. The Minister, on the other hand, submits that the applicants did not advance any clearly articulated claim that the applicant had refrained or would in the future refrain, from acting on his abandonment of Islam for fear of being persecuted in a way that could be said to be inconsistent with s.5J(3) of the Act. The Minister further submits that, on the contrary, the applicant claimed he had expressed his critical views both to his family, who had religious connections, and at his place of employment.[38]

   [38] First Respondent’s Written Submissions, [14]

2. The principles for determining whether there was before a decision-maker like the Authority a claim are well established, and I need only refer to the following passage from the judgment of Allsop J (as his Honour then was) in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs: [39]

   From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

   [39] [2004] FCA 1695, at [15]

3. The question, therefore, is whether there arose tolerably clearly from the material before the Authority a claim that, being an atheist, the applicant would on his return to Iran withhold expressing his atheist beliefs out of a fear of harm from the authorities and or its agents or from members of the general public.

4. The applicant in terms claimed that on his return he would need to hide his views about religion, and that he would be required to live discreetly so as not to expose his atheism and non-adherence to Islam because otherwise he would be exposed to the risk of serious harm. That is apparent from the submissions the applicant’s representative made to the Authority in her letter dated 14 October 2016. That claim, however, was made on the premise that the applicant would face the risk of significant harm in Iran because he was an atheist, because he did not practice Islam, and because he had expressed his views to family members who had religious connections, and to persons in his workplace. In other words, the applicant’s claim that he would be required to live discreetly was based entirely on the claim that he feared harm because of his atheist views and his non-adherence to Islam; and that is the claim the Authority considered but did not accept.

5. The Authority considered whether the applicant faced a real chance of significant harm now or in the foreseeable future because the applicant was an atheist, because the applicant did not follow Islam, and because the applicant had expressed his opinions on Islam to family members with religious connections, and to persons at his workplace; and, for the reasons it gave, the Authority concluded it was not satisfied the applicant would face such risk. The Authority’s conclusion was based on findings that included the finding that the applicant “while born into a Shia Muslim family, does not practise [sic] Islam and will not practise [sic] Islam upon return to Islam”. The Tribunal did not rely on any finding or assumption that the applicant would act discreetly or otherwise modify the conduct he would engage in; and that is because the only reason for which the applicant claimed he would act discreetly on his return to Iran were the very matters which the Authority was not satisfied exposed the applicant to a real risk of significant harm.

6. The Authority referred to country information that indicates that atheists are unlikely to come to the attention of the Iranian authorities unless they seek to publicise their views; and the Authority referred to the delegate having put to the applicant “aspects of the information cited above . . . for comment”, noting that the applicant responded by “stating that the penalty for being an apostate is death and therefore he will be executed upon return”.[40] The applicant, however, did not claim that on his return to Iran he intended to seek to publicise his views, but he would not do so because he feared he would be exposed to significant harm.

   [40] CB336, [23]

7. This part of ground 1, therefore, fails.

Paragraph (ii) of particulars – failure to consider claims cumulatively

1. The applicants submit the applicant wished each of his claims to be assessed separately, and all of his claims to be assessed together, but the Authority did not assess the claims together. The Minister accepts the Authority did not purport to deal with all of the applicant’s claims together; but the Minister submits the Authority made no jurisdictional error by not doing so. The Minister relies on the Full Federal Court’s judgment in Minister for Immigration and Border Protection v DDK16, and in particular on the following passage from that judgment:[41]

   It seems to us, as a matter of inexorable logic, that if, as is common ground here, all individual claims or bases for establishing an entitlement to a visa are dismissed (here, dismissed as not giving rise a real or significant risk of harm upon return to the country of nationality or receiving country), then no amount of “cumulative consideration” of those rejected claims is capable of producing a different result. 

   [41] [2017] FCAFC 188, at [34]

2. The Minister submitted that, given the Authority dismissed each of the applicant’s claims, then no amount of “cumulative consideration” could have produced a different result.

3. Mr Dobbie, who appeared for the applicants, submitted the circumstances of the Authority’s decision in this case are distinguishable from the circumstances in DDK16. Mr Dobbie submitted that in DDK16 concerned the Authority’s not considering cumulatively claims that had been made to it, whereas the applicant’s claim in the proceeding before me is that the Authority did not consider on a cumulative basis the individual elements of each of the claims or, at least information that was relevant to claims the Authority did consider.

4. That submission assumes that the elements of, or information relevant to, a particular claim or claims the Authority did consider were relevant or potentially relevant to another claim or claims the Authority considered or, perhaps, to claims that arose from the material before it which the Authority did not consider. In other words, the submission implies that, when considering a particular claim or claims, the Authority failed to consider elements of or information relevant to another claim or to other claims the Authority considered and, perhaps, failed to consider a claim that arose when the elements of each of the claims it did considered are viewed as a whole. The applicants, however, do not identify any element or elements the Authority failed to consider when considering the claims it did consider. Nor do the applicants identify any claim or claims they submit arose from the elements of each of the claims when considered as a whole which the Authority failed to consider.

5. In my opinion, the circumstances considered by the Full Federal Court in DDK16 are distinguishable from the circumstances of this case. It follows, therefore, that this part of the applicants’ claims fails.

Conclusion and disposition

1. The applicants have failed on the grounds on which they rely. I propose, therefore, to order that the application be dismissed. The parties agreed that costs should follow the event and that, if the Minister succeeds, I should set costs in the amount of $6,600. I propose to order that the first and second applicant pay the Minister’s costs set in the amount of $6,600.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  13 November 2019

First Respondent’s Written Submissions, [13]