AQA17 v Minister for Immigration and Border Protection
[2021] FedCFamC2G 2
•6 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AQA17 v Minister for Immigration and Border Protection [2021] FedCFamC2G2 116
File number(s): MLG 296 of 2017 Judgment of: JUDGE DAVIS Date of order: 6 October 2021 Date of reasons: 14 October 2021 Catchwords: MIGRATION – Protection visa – application for review of Immigration Assessment Authority’s decision affirming delegate’s decision not to grant visa – whether the Authority failed to take into account a mandatory consideration – whether the Authority failed to complete its statutory task by failing to consider a claim by the First Applicant – ground of review not made out – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5H, 36(2), 473DB Cases cited: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
AYY17 v Minister for Immigration and Border Protection [2018] FCR 503
Division: Division 2 General Federal Law Date of hearing: 29 July 2021 Place: Melbourne Number of paragraphs: 121 Date of last submission/s: 27 July 2021 Date of hearing: 29 July 2021 Counsel for the Applicant: Mr Kenneally Solicitor for the Applicant WLW Migration Lawyers Counsel for the Respondents: Ms Chan Solicitor for the Respondents Australian Government Solicitor ORDERS
MLG 296 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AQA17
First Applicant
AQI17
Second Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE DAVIS
DATE OF ORDER:
6 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Application be dismissed.
2.The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $7,853.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE DAVIS
BACKGROUND
This is an application for review of a decision made by the Immigration Assessment Authority (Authority) on 20 January 2017 (Application). By that decision, the Authority affirmed a decision of a delegate of the First Respondent, the Minister, not to grant the Applicants a Temporary Protection (subclass 785 visa) (Visa).
The Applicants are citizens of Iran who arrived on 18 March 2013 as unauthorised maritime arrivals. The Second Applicant, AQI17 is the wife of the First Applicant, AQA17. She has not made independent claims for protection and instead relies on those of her husband. She does this pursuant to s36(2)(b) of the Migration Act1958 (Cth) (Migration Act), on the basis that she and her husband are in the same family unit.
By their Application, the Applicants in effect seek the following relief:
(a)An order that the decision of the Authority be quashed.
(b)A writ of mandamus directed to the Authority, requiring it to determine the Applicants’ Application according to law.
(c)A declaration that the decision of the Authority was not made in accordance with law by reason of the ground contained in their Application and is void and of no force or effect.
(d)Costs.
The First Applicant applied for the Visa for himself and his wife on 1 April 2016.
On 3 November 2016, the First Applicant attended an interview for the Visa.
On 10 November, the delegate refused to grant the Applicants the Visa.
On 14 November 2016 the First Applicant applied to the Authority for review of the delegate’s decision. Jafari Migration, who then acted but no longer act for the Applicants, filed submissions in support of their Application to the Authority on 30 November 2016.
On 20 January 2017, the Authority affirmed the delegate’s decision to refuse the Applicants the Visa.
APPLICATION IN THIS COURT – PROCEDURAL HISTORY
The Applicants, on their own behalves, filed their Application for review in this Court on 16 February 2017, together with an affidavit in support.
On 15 January 2019, the Applicants filed a notice of Address for Service, indicating that they had become Legally Aided.
Various procedural orders have been made in connection with the listing of the matter for final hearing. Ultimately, on 5 July 2021, I listed the matter for hearing on 29 July 2021 and made directions in connection with that listing.
On 12 July 2021, the Applicants’ current lawyers, WLW Lawyers, filed a notice of address for service.
On 15 July 2021, the Applicants filed an Amended Application, an affidavit in support and trial submissions.
Pursuant to my orders of 5 July, the Minister filed submissions on 27 July 2021.
The matter came before me on 29 July 2021. The Applicants were represented by Mr Kenneally of counsel and the First Respondent was respondent was represented by Ms Chan of counsel.
THE APPLICANTS’ GROUND
I set out below the single ground of the Application, as amended.
Ground 1
The Authority fell into jurisdictional error by failing to take into account a mandatory and relevant consideration and/or failing to complete its statutory task by failing to consider the Applicant’s claim that he would express his religious and/or political views publicly on return to Iran.
Particulars
(a)The Applicant claimed in his statement attached to his SHEV application that if returned to Iran he would “continue to openly criticize and oppose being forced to call myself a Muslim” (the claim).
(b)The Authority was required to consider the claim as the statement was part of the review material pursuant to 473DB(1) of the Migration Act 1958 (Cth) (Migration Act); and/or it was a claim or integral part of a claim by the Applicant as to why he was a “refugee” within the meaning of the act.
(c)The Authority did not consider the claim.
(d)The failure to consider the claim denied the applicant a realistic possibility of a successful outcome.
SOME RELEVANT STATUTORY PROVISIONS
Section 473DB(1) of the Migration Act provides that:
(1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a)without accepting or requesting new information; and
(b)without interviewing the referred applicant.
(2) Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.
Section 36(2) provides as follows:
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
Section 5H of the Migration Act relevantly provides:
(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a) in a case where the person has a nationality--is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country;
…
Section 5J also relevantly provides:
(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
…
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person's identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii) conceal his or her true race, ethnicity, nationality or country of origin;
(iii) alter his or her political beliefs or conceal his or her true political beliefs;
…
THE APPLICANTS’ SUBMISSIONS IN CHIEF
I deal below with the Applicants’ submissions in chief.
The way that the hearing proceeded was that Mr Kenneally, on behalf of the Applicants, stated that he did not wish to rehearse his written submissions. Rather, he effectively adopted those submissions and stated that he would proceed from the outset to respond to the written submissions filed on behalf of the Minister.
At the hearing, Mr Kenneally did not make further submissions after the Minister had completed his submissions. That is, in terms of the order of submissions made on the day, Mr Kenneally did not make any submissions “in reply”. As I have said, at the hearing Mr Kenneally responded to the Minister’s written submissions from the outset.
Despite this, I propose to set out what Mr Kenneally submitted orally in response to the Minister’s submissions under the heading, Applicants’ submissions in response to the First Respondent’s submissions, below. I do this because it will be easier to understand those submissions after I have dealt with the Minister’s submissions.
I deal first with the Applicants’ written submissions.
The Applicant submitted in writing that:[1]
The Authority’s statutory task was to consider if it is satisfied that the appellant was a “refugee” pursuant to s 36(2)(a) of the Migration Act 1958 (Cth) (Act). That is, did the appellant have a well-founded fear of serious harm for reason of race, religion, or political opinion (s 5J)? To complete that task, the Authority must consider the appellant’s claims - and integral parts of those claims to fear serious harm in the foreseeable future (AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89, 261 FCR 503, [18]). To be a jurisdictional error, the failure to consider the claim or “integer” must have denied the applicant a realistic possibility of a successfuloutcome (MZAPC v Minister for Immigration and Border Protection [2021] HCA 17,[2] (Kiefel CJ, Gageler, Keane, and Gleeson JJ)).
[1] Applicants’ submissions at [2]
In this Court, the Applicants submit, in effect, that the Authority failed to consider an integer of the First Applicant’s claim that he had a relevantly well-founded fear of persecution. They submit that such failure was material in that it denied him a realistic possibility of a successful outcome.
The Applicants submitted that:
Having found the applicant held political and religious views, the Authority was required to consider if the applicant would face a risk of serious harm as a result of expressing those views in the foreseeable future.
The Applicants submitted that the Authority had accepted that the First Applicant does not believe in Islam and is opposed to the theocratic Iranian regime.
In this regard, at [21] of its reasons, the Authority states that:
I accept that the applicant believes in God but does not believe in Islam, and does not conform to religious practices. I also accept his family was not religious and the applicant did not grow up practising Islam, for example, he did not pray, fast or attend prayers at local mosques.
In their written submissions, the Applicants extracted the following passage from the First Applicant’s statutory declaration of 29 March 2016:
I am not willing nor prepared to conceal my religious views and will continue to openly criticize and oppose being forced to call myself a Muslim. Furthermore, because of being a member of a socially and politically active family, I cannot possibly take any steps to change anything about my family members being political dissidents. I will not and cannot possibly conform to follow an ideology in which I do not believe in. (emphasis added)
The essence of the Applicants’ written submissions is that it can be inferred that the Authority did not take this statement into account for the following three reasons.
First, the Applicants submitted in writing that the Authority makes no reference in its reasons to the statement from the statutory declaration extracted above.
Secondly, the Applicants point out that the Authority noted in its reasons at [25] that:
The evidence before me does not suggest that the applicant’s work colleagues have, or intends (sic) to, inform the authorities of the applicant’s religious views or that he does not conform to Islamic practices or ideologies. The applicant has not claimed that he has a desire or a real interest in expressing his views or beliefs, or that he intends to do so upon return. I find that the applicant would not publicise his views upon return not due to fear of harm, but because of a lack of interest to do so. There is no credible evidence to suggest that the applicant’s religious views have, may have, or there is a real chance that it will, come to the authority’s attention. On the information before me, I am not satisfied that there is a real chance of the applicant suffering harm from the authorities for reasons relating to his lack of commitment to the Islamic ideologies, practices or do not believe in Islam. (emphasis, including underlining, added)
The Applicants submit that the highlighted passage is plainly inconsistent with the claim in the First Applicant’s statutory declaration that he would refuse to “conceal [his] religious views and will continue to openly criticize and oppose being forced to call [him]self a Muslim”.
Thirdly, the Applicants submitted in writing that the Authority repeats the error at [84] of its reasons when it considers whether the First Applicant would express a political opinion in the future. In this regard, the Applicants extract the following section of [84]:
While I accept the applicant holds an opinion against the regime and he lacks beliefs in Islam, there is no credible evidence before me that he has otherwise been politically active or publically expressed these views.… I have not accepted that the applicant is or was perceived by the authorities as a political activist. I am not satisfied on the evidence that the applicant has any intention or desire to publically manifest his views about the regime, or to openly criticize or opposing (sic) being called a Muslim…(emphasis added by Applicants)
The Applicants contend that given that there is no express reference to the First Applicant’s evidence that he would openly criticise and oppose being called a Muslim, and two express statements that he never made that claim, it must be inferred that the Authority did not consider it.
The Applicants go on to submit that the error was material because there was no consideration of the relevant claim and the Authority’s existing findings do not support a conclusion that it would have been rejected.
The Applicants submit that:
Given the relationship between religion and political opinion in Iran (see DFAT Country Information Report – Iran – 21 April 2016, [2.16], [3.30], [3.60] – [3.61]) the Authority could have found the applicant’s religious views would lead him to be identified as an opponent of the regime. (references omitted)
THE FIRST RESPONDENT’S SUBMISSIONS
As noted above, the Minister filed his submissions on 27 July 2021 in accordance with my orders of 5 July 2021.
By way of background, amongst other things, the Minister submitted that on 4 April 2013 the First Applicant was interviewed upon entry into Australia and, in that interview, relevantly made the following points: [2]
(a)All his paternal relatives used to be and are socially active; they were against religion, the government and the regime.
(b)His brother was active in the 2009 election. His brother came to Australia two years ago and the Applicant had been questioned since that time.
(c)The Applicant does not practise Islam and does not pray or fast, and for this reason, he stood out at work and was always picked on at work.
(d)The Applicant was arrested on his wedding night because alcohol was served. He paid a bribe and was released on the same night.
(e)The Applicant has a relative, the brother of his aunt’s husband (a clergyman and manager of religious education), who has a high-ranking position in the government and he told the Applicant that he needed to leave before the next election.
(f)He answered “no” to the question of whether he associates with any persons who maintain regular political involvement, and “no” to the question of whether any of his family members or close friends served with a police, security or intelligence organisation.
[2] Minister’s submissions at [4.1] – [4.6]
The Minister noted that on 29 March 2016, the First Applicant made a statutory declaration in support of the application for a temporary protection visa, in which he:
(a)Stated he did not know during the entry interview that his answers would be used to assess his claims for protection.
(b)Claimed protection on the grounds that he is perceived to be a political dissident because his family members, including his brother and uncles, are political dissidents; his uncle converted to Christianity in Australia and that he sought asylum in Australia.
(c)Reiterated his claim that he does not practice Islam or conform to any religious practices including Islam.[3]
[3] Minister’s submissions at [5]
By his submissions, the Minister went on to note that in the First Applicant’s statutory declaration, he also made the following claims:[4]
(a)He stated that his family was not religious and did not “follow strict religious practices as other families did”, such as fasting and attending Friday prayers at the local mosque like the other locals in the small town of Hafttapeh. His family used to have gatherings where men and women were mixed. The locals called them "outsiders" and "atheists''.
(b)In primary, middle and high school, he stood out for wearing short sleeved shirts and refusing to join in midday prayers. He was regularly called to the principal’s office, given poor marks and threatened with expulsion. The “constant threats and harassment” had a grave psychological impact on him as a young person.
(c)At university, he was called into the security office and questioned about his dress and why he was clean shaved, and “accused of bringing filth and disgrace to their town. As education was very important to [him], [he] had no choice but to conform. Despite [his] free will, [he] soon grew a beard and started dressing differently so [he] could complete [his] studies.”
(d)He worked in the oil and gas industry for various companies between 2004 and 2012 and experienced similar pressures in terms of his compliance with religious practices including midday prayers and fasting. He failed in securing higher-paying government jobs that would have been otherwise available to him because of his lack of commitment to the Islamic ideologies and practices.
(e)He stated that he was “not willing nor prepared to conceal [his] religious views and will continue to openly criticize and oppose being forced to call myself a Muslim.”
[4] Minister’s submissions at [5.1] – [5.5]
Prior to squarely responding to the Applicants’ ground for judicial review, by his submissions the Minister noted the following with respect to the Authority’s decision:[5]
[5] Minister’s submissions at [9.1] – [9.8]
(a)The Authority accepted the Applicant was arrested at his wedding on 20 September 2012 because alcohol was served, that he paid a bribe and was released; but was not satisfied that the Applicant was of interest to police or the authorities on the basis of the arrest or after paying a bribe.
(b)It was not satisfied that the Applicant would face a real chance of harm (including in relation to his capacity to secure employment) for reasons relating to his lack of belief in Islam, and his lack of commitment to Islamic ideologies and religious practices. Relatedly, the Authority was not satisfied that the Applicant would face a real chance of harm on the basis of his clothing preferences and clean-shaven appearance.
(c)The Authority was not satisfied that the Applicant would face a real chance of harm for reasons relating to his family members’ social, political and religious views and activities. In this respect, the Authority:
(i)found that Applicant first raised during the protection visa interview the involvement of his father in political activities, including his arrest, torture and imprisonment for 6 years. It also was the first time he raised that his uncles had been arrested and detained. The Authority found the Applicant had not been truthful and did not accept the Applicant, or his family, were monitored, taken to the police station, harassed for no reason, tortured or always under pressure due to religious, social or political issues.
(ii)was not satisfied that the Applicant did not understand during his arrival interview that his evidence could be used to assess his protection claims or that he did not understand the importance of the evidence he was giving. The Authority was not satisfied that the significant omissions were as a consequence of stress, nervousness, interpreter issues or misunderstandings or that he was not informed that his evidence would be relied on for the purpose of assessing his claims.
(iii)was concerned about the inconsistency in the evidence that has evolved and escalated over time, which added to concerns of the credibility of the Applicant.
(d)accepted that the Applicant’s brother, his brother’s friend and their cousins were involved in uploading videos or messages on social media and burnt CDs for distribution around the time of the 2009 election. However, it did not accept that the Applicant’s brother, his brother’s friend and their cousins were perceived as social or political activists or dissidents and was not satisfied that the Applicant is of interest to the authorities by reason of his association with them.
(e)accepted that the Applicant was himself involved in uploading videos on social media and distributing CDs in the period around the 2009 election but did not accept that he is or was perceived by the authorities as a political activist.
(f)did not accept the Applicant’s claims that “uncle B followed or practised Christianity in Iran, attended church ceremonies, read bibles or religious books; or that uncle B converted to Christianity in Australia”; nor that the Applicant or his family were perceived as following his uncle’s ideology and way of life and targeted, harmed or came to the attention of the authorities for those reasons.
(g)did not accept that the Applicant would face a real chance of harm because he sought asylum in Australia or spent time in Australia or that he would be imputed with anti-regime opinion.
(h)considered all of the Applicant’s claims cumulatively and was satisfied that there was not a real chance of serious harm that he will suffer serious harm on his return to Iran.
The Minister then squarely made submissions with respect to the Applicants’ ground for review. The Minister reiterates that the Applicants’ seek judicial review on the sole ground of “failing to consider their claim that the First Applicant would, on return to Iran, express his opposition to being required to observe the state religion, Islam”. (emphasis added in the Minister’s submissions)
The Minister submitted that the short answer to this point is that the claim was considered by the Authority.
The Minister submitted that the Authority “carefully engaged with the totality of the claims advanced on the topic of the First Applicant’s religious views and activities, including by taking into account the country information concerning the large percentage of agnostic youth in Iran”.[6]
[6] Minister’s submissions at [11]
In this regard, the Minister extracted the following passage:
Country information indicates that large number of Iranians, particularly the younger generations consider themselves agnostic. Numerous surveys, have shown that most Iranians under the age of 25 who make up 50 per cent of the overall population consider themselves agnostic. It is reported that mosque attendance rates in Iran are low, and that many people with strong religious beliefs do not attend Friday prayers. Although abandonment of Islam is viewed as apostasy, and is punishable by death or other forms of harm, DFAT assesses that it is unlikely that individuals would be prosecuted on such charges. The evidence is that the Iranian government is highly unlikely to monitor religious observance by Iranians, such as whether they attend mosque, and it is generally unlikely that it would become known that a person was no longer faithful to Shia Islam unless they seek to publicise their views. (emphasis added in the Minister’s submissions)[7]
[7] Ibid extracting the Authority’s Reasons [23] where the Authority cites Department of Foreign Affairs and Trade (DFAT), “DFAT Country Information Report Iran April 2016”, 21 April 2016,
CIS38A8012677, 3.55, 3.57.
The Minister submitted that, in that context, the Authority:[8]
[8] Minister’s submissions [12.1] – [12.4]
(a)Accepted that the First Applicant was reprimanded, and threatened with expulsion at school as he refused to practise religion, such as joining mid-day prayers or citing the Quran (the Minister defined this as Accepted Matter 1). However, these incidents occurred in the context of the First Applicant’s schooling and the Authority was not satisfied that there is a real chance that the First Applicant will face harm on these bases, some 20 years since he left school.
(b)Accepted that the First Applicant’s family used to have gatherings where men and women were mixed, and they were subjected to humiliation by the locals who used to call them “outsiders” and “atheists” because of their way of life (the Minister defined this as Accepted Matter 2). However, it was not satisfied that such verbal harassment amounted to serious harm, nor that there was credible evidence to suggest a real chance of the First Applicant facing serious harm on this basis.
(c)Accepted that the First Applicant may have been turned down for government jobs in the past partly because of his lack of commitment to Islamic ideologies and practices (the Minister defined this as Accepted Matter 3). However, it found that any denial of government employment in the future could be for a variety of reasons including suitability, education and qualifications. It noted the First Applicant’s evidence that he had continuously been employed in various oil and gas companies as an engineer since he completed his master’s degree in 2004. It found that a denial of a government job in the First Applicant’s particular circumstances would not threaten his capacity to subsist in such a way that it would amount to serious harm.
(d)Dealt with the First Applicant’s response to being asked why he could not enjoy life and refrain from publicising his non-religious views. To that question the First Applicant responded that “in a work environment, if everyone else is praying or fasting and if he did not, he would stand out”. As to that response, the Authority:
(i)accepted that the First Applicant may have occasionally been picked on by some work colleagues for not fasting or praying (the Minister defined this as Accepted Matter 4);
(ii)however, did not accept that his work colleagues would inform the authorities that the First Applicant did not conform to Islamic practices or ideologies.
(e)Found, having regard to the country information and other evidence, that many Iranians do not have strong religious beliefs, consider themselves agnostic and do not attend prayers. Accordingly, the Authority was not satisfied that the First Applicant would “stand out” as the only person who did not pray and fast, or that his occasionally having been “picked on” amounted to serious harm, or exposes him to a real chance of serious harm on return.
The Minister submitted that having regard to the evidence as to the way in which the First Applicant’s non-religious views had been expressed historically, and his answers as to how he might express them prospectively, the Authority found at [84] that:
… there is no credible evidence before me that he has… [publicly] expressed these views [as to his lack of belief in Islam]… I am not satisfied on the evidence that the applicant has any intention or desire… to openly criticize or [oppose] (sic) being called a Muslim, and I find there is not a real chance that he will suffer harm in this regard. On the information, I consider the prospect of the applicant publicly expressing his opinion… and being seriously harmed to be remote. I am not satisfied that the applicant faces a real chance of being harmed in relation to his views, beliefs or opinion regarding… religion. (emphasis added)
Ms Chan, counsel for the Minister, submitted that the text of the words in bold reflected the very claim made by the First Applicant in his statutory declaration that the Applicants allege that the Authority failed to consider.
This was properly conceded by Mr Kenneally on behalf of the Applicants.
In these circumstances, the Minister submitted that the first and third bases for the Applicants’ complaint that the Authority had failed to consider the First Applicant’s relevant claim were not maintainable.
Put another way, the Applicants' submissions that the Authority:
(a)made no reference in its reasons to the statement from the statutory declaration; and
(b)compounded that error in [84]
are not viable, as the statutory declaration is expressly referred to in [84].
The Minister submitted that, with respect to the evidence as to the First Applicant’s claim that he would express his non-religious views upon his return to Iran, the Authority went on to find as follows:
(a)There was no credible evidence that the First Applicant expressed his non-religious views to any extent greater than the detailed claims as to how those views were expressed through his family’s “way of life”, his clothing and appearance, his refusal to pray at school and work, his nonconformity at job interviews, etc. (as to which, see what the Minister referred to as the Accepted Matters: [49] above]. In particular, when asked specifically about how and why he would publicise his non-religious views in future, the Applicant’s answer was limited to stating that he would stand out at work for refusing to fast and pray.
(b)The Authority was not satisfied that the Accepted Matters would give rise to a real chance of serious harm in future. There is no challenge to this aspect of the Authority’s reasoning.
The Minister submitted that it was in this context that the Authority found at [25]:
I find that the Applicant would not publicise his views upon return not due to a fear of harm, but because of a lack of interest to do so.
As to the Applicants’ argument that [25] of the Authority’s reasons is inconsistent with it having considered the relevant claim and demonstrates that it was overlooked, the Minister made the following submissions:[9]
(a)The First Applicant’s assertion that “I am not willing nor prepared to conceal my religious views and will continue to openly criticize and oppose being forced to call myself a Muslim” must be read in the context of the statutory declaration in which it appeared, and the substance of the claims made in that declaration, as summarised at above. There is nothing in the claims preceding that assertion that suggests the First Applicant would “publicise” his non-religious views beyond what the Minister had defined as the various Accepted Matters (see [49] above).
(b)Seen in its proper context, then, there is no relevant “inconsistency”. The First Applicant made no claims, and therefore the Authority had no occasion to speculate, as to how the First Applicant might “publicise” his non-religious views beyond the Accepted Matters.
(c)Insofar as the assertion may be construed as an asserted intention to express these views in unspecified ways that extend beyond the Accepted Matters
(i)the Authority explicitly addressed this at [84] of its reasons (as set out above), and found it unsupported by the evidence.
(ii)the Applicant’s real complaint appears not to be that the Authority “overlooked the claim or integer”, but that the Authority did not accept the First Applicant’s asserted intention as credible. This complaint is difficult to understand given the speculation that would be required on the part of the Authority in the absence of further particularisation of this “claim”.
(d)Finally, the Authority does not need to refer to every piece of evidence in its written reasons. The critical issue is whether the Authority addressed the contentions of the Applicant. The assertion of a “failure to consider” is directly contradicted by the Authority’s reasoning and findings summarised in its reasons.[10]
[9] Minister’s submissions at [16.1] – [16.4]
[10] Minister’s submissions at [16.4]. That sub-paragraph seeks to provide a pinpoint reference to the repository of the summary to which it refers. However, it reflects an error message. The reference is presumably intended to be to [84] of the Authority’s reasons.
By way of conclusion, the Minister submits that:[11]
The Authority’s reasons, read fairly and without an eye keenly attuned to error, manifest a thorough engagement with the totality of the claims advanced. The Authority found, despite the Applicant’s assertion to the contrary, that he lacked interest in expressing his religious views openly and publicly. Not only was the purported integer of the claim clearly and expressly considered, but the reasoning process was supported by the evidence, considered in light of the Applicant’s individual circumstances. This ground is not made out.
[11] Minister’s submissions at [17]
The Minister went on to make submissions that the application for review could not be sustained on any other grounds. However, Mr Kenneally confirmed that no other grounds were pressed. In these circumstances, there is no need to deal with such submissions.
In short, the Minister submits that the claim was considered by the Authority. He submits that the claim was considered in the totality of the claims advanced on the topic of the Applicant’s religious views and activities.
APPLICANTS’ SUBMISSIONS IN RESPONSE TO THE FIRST RESPONDENT’S SUBMISSIONS
As I observed above, from the outset of the hearing, the Applicants proceeded to respond orally to the Minister’s submissions.
The Applicants’ counsel identified three points which, he contended, encapsulated the Minister’s case. I set out those points below.
First, Mr Kenneally submitted that the Minister had contended that, to the extent that the First Applicant’s claim was considered by the Authority, such consideration was confined to what are described in the Minister’s submissions as the Accepted Matters; that is, the First Applicant’s past conduct.
Put another way, Mr Kenneally contended that the First Applicant’s past conduct was essentially non-conforming and non-participating in Islamic practices. He submitted that the Minister contended that this was what the First Applicant in fact meant by the alleged relevant claim, with the consequence that such claim was in fact considered.
Secondly, Mr Kenneally submitted that the Minister had contended that, even if there was some difference between those past matters and the statement in the First Applicant’s statutory declaration which the Applicants’ claim the Authority did not consider, given that the First Applicant does not expressly identify what he would do in that statement, the Authority could only merely speculate as to what was meant by it. Consequently, either the statement did not rise as high as an integer of the claim or the failure to consider it was not material.
Thirdly, Mr Kenneally submitted that the Minister had contended that the Authority expressly considered the statement in question at [84] of its reasons, where the language of that statement is deployed by the Authority. In that paragraph, the Authority does not accept the proposition entailed by the statement.
The Applicants’ counsel went on to say that the Applicants would make three points in response to the Minister’s submissions.
First, the Applicants submitted, in effect, that it was not accurate for the Minister to contend that the First Applicant’s relevant claim rose no higher than a claim that the First Applicant would continue to do what he had done in the past.
In this regard, Mr Kenneally submitted:
The first response is that, ultimately, what the applicant says there is distinct from his past conduct, in that he says he will openly criticise being called a Muslim. That is distinct from non-participation alone. So, while it’s accepted that that passage does, do (sic) will (sic) some extent, pick up his past conduct, it doesn’t describe a different type of conduct he intends to engage in in the future.
In relation to this point, Mr Kenneally went on to submit that once it was accepted that there was a clear difference between the First Applicant’s past conduct and what by the relevant passage in his statutory declaration he said that he proposed to do, it became clear that the Authority did not consider what, in that passage, he claimed that he proposed to do.
It is perhaps noteworthy that Mr Kenneally went on to submit:
It may have been possible for the authority to reject that he would publicly criticise in the future ‑ ‑ ‑
However, Mr Kenneally submitted that the Authority did not do this but rather failed to consider the claim. Mr Kenneally submitted that this was demonstrated by [25] of the Authority’s reasons.
Secondly, the Applicants submitted orally that there were what they described as “two real responses” to what they had characterised above as the Minister’s second point.
Mr Kenneally went on to submit that the first such response was as follows:
The first is that the authority has given its finding weight at paragraph 25, which in my submission, means…it can be inferred there was some significance to the effect that the authority believed the applicant would not publicly express his religious views in the future. And that suggests that the authority, at least, contemplated that, if he would express those views in the future, it would have needed to engage in some analysis of the country information to identify whether the applicant might be a risk.
Mr Kenneally then submitted that the second such response was that:
The second element, your Honour, is that, while there was country information that suggested there’s a degree of tolerance in Iran for the expression of political and religious views in non-compliance in the DFAT report, there was also an indication that there are red lines…
Mr Kenneally submitted that the DFAT report indicated that political and religious tolerance was subject to “…understood red lines which include respect for the supreme leader, the constitutional and territorial foundations of the Islamic Republic and the place of Shia Islam in Iran.”
Ultimately, the Applicant’s point with respect to the red lines in the DFAT report was that the Authority needed to, but did not, consider whether such lines would be crossed by the conduct contemplated by the First Applicant in the relevant statement in his statutory declaration.
Thirdly, the Applicants submitted orally that the First Applicant “returns to Iran in slightly different circumstances to that (sic) which he left, or to put it another way, his claims need to be considered cumulatively”.
Any contention by the Applicants’ that the Authority did not deal with the First Applicant’s claim cumulatively was not pressed by way of a separate ground. As I observed above, the Application as amended, proceeded on the basis of a single ground.
Rather, the way that the argument was put was that – had the Authority considered the First Applicant’s claim which was the subject of the Applicants’ ground – this may have buttressed another one of his claims for protection. Mr Kenneally submitted that:
… while the applicant had not attracted attention in the past for his conduct, in the future he returns as a person that has spent a significant amount of time out of – out of Iran and in Australia. And while it’s accepted that the IAA found that alone did not give rise to any claim, it does change his circumstances on return were he to publicly criticise the requirement that he be called a Muslim.
CONSIDERATION
I now go on to consider the Applicants’ ground for review.
Again, as submitted by the Minister, the Authority found at [84] that, having regard to the evidence as to how the First Applicant had expressed his non-religious views in the past and his answers as to how he might do so in the future:
While I accept the applicant holds an opinion against the regime and he lacks beliefs in Islam, there is no credible evidence before me that he has otherwise been politically active or publically expressed these views. Country information indicates that within limits well-known to Iranians, daily life is vibrant and sophisticated. The government of the day may be criticised robustly, both in public (for example, during conversations on the street and in workplaces) and online (for example, on social media). Although there is suppression of free speech and punishment of public criticism for groups such as human rights defenders, political activist who are perceived to cross red lines, lawyers and journalist (sic), I have not accepted that the applicant is or was perceived by the authorities as a political activist. I am not satisfied on the evidence that the applicant has any intention or desire to publically manifest his views about the regime, or to openly criticize or opposing being called a Muslim, and I find there is not a real chance that he will suffer harm in this regard. On the information, I consider the prospect of the applicant publicly expressing his opinion or distributing materials and being seriously harmed to be remote. I am not satisfied that the applicant faces a real chance of being harmed in relation to his views, beliefs or opinion regarding the regime or religion. (emphasis including underlining added)
As I have observed above, at the final hearing, the Applicants properly conceded the Minister’s submission that the underlined words in the above extract of [84] of the Authority’s reasons reflect the very statement in the First Applicant’s statutory declaration that the Applicants allege that the Authority failed to consider.
In these circumstances, I agree with the Minister’s submissions to the effect that the submissions which the Applicants had previously made to the effect that the Authority:
(a)made no reference in its reasons to the statement from the statutory declaration; and
(b)compounded that error in [84]
are not viable. In any event, as much is embraced by the Applicants’ concession.
I now turn to deal with the Applicants’ contention that [25] of the Authority’s reasons is inconsistent with the statement in the First Applicant’s statutory declaration which the Applicants’ complain that the Authority did not consider. The Applicants’ real point is that this inconsistency reflects the fact that the Authority did not consider that claim.
I extracted at [34], above, the Authority’s reasons at [25]. The critical sentence in that paragraph upon which the Applicants rely to support their submission that the paragraph is inconsistent with the Authority having considered the relevant statement in the First Applicant’s statutory declaration is as follows:
The applicant has not claimed that he has a desire or a real interest in expressing his views or beliefs, or that he intends to do so upon return. (emphasis added)
Viewed in isolation, there is an apparent tension between this sentence and the First Applicant’s statutory declaration that he would not “conceal [his] religious views and will continue to openly criticize and oppose being forced to call [him]self a Muslim”.
Moreover, there is an apparent tension between the passage in [25] of the Authority’s reasons which I have extracted above and the sentence in [84] of the Authority’s reasons which includes the following: “I am not satisfied on the evidence that the applicant has any intention or desire to publically manifest his views about the regime, or to openly criticize or opposing (sic) being called a Muslim….”
However, for the reasons that follow, I consider that, on analysis, when viewed in context, any such apparent tensions do not give rise to the inference that the Authority failed to consider the relevant statement in the First Applicant’s statutory declaration.
First, I agree with the Minister’s submission that [25] of the Authority’s reasons and, in particular the critical sentence from that paragraph, should be read in the context of its reasons as a whole.
Accordingly, amongst other things, the statement in [25] of the Authority’s reasons must be read in the context of [84] of those reasons. Again, as properly conceded by counsel for the Applicants, a portion of this paragraph reflects the text of the very statement made by the First Applicant in his statutory declaration which the Applicants contend that the Authority did not consider.
Secondly, in my view, contrary to the Applicant’s submissions, the better characterisation of the relevant passage in the First Applicant’s statutory declaration is that it rose no higher than a statement to the effect that he intended, in the future, to continue what he had done in the past.
In part, I reach this conclusion on the basis of a textual analysis of the statement. Critically in this regard, the relevant statement hinges on the word continue.
Also, in part, I have formed this view on the basis that my textual analysis is supported by a contextual analysis of the statement.
I accept the Minister’s submission that the statement which the Applicants contend that the Authority failed to consider ought be read in the context of statutory declaration in which appears.
The following are some contextual indicators which support the conclusion that the relevant passage in the First Applicant’s statutory declaration should be construed to mean that the First Applicant proposed to continue to engage in relevant conduct in which he had engaged in the past:
(a)As submitted by the Minister, there is nothing in the statutory declaration prior to that statement which suggests that the First Applicant would publicise his non-religious views beyond what the Minister had defined as the various Accepted Matters (again, see [49] above); that is, his past conduct. For that matter, there was likewise nothing after the relevant statement in that declaration to that effect.
(b)Consistently with this, as the Minister submitted, despite being asked specifically that the Temporary Protection Visa interview about how and why he would publicise his non-religious views in future, the First Applicant's answer was limited to stating that he would stand out at work for refusing to fast and pray. This is expressly referred to by the Authority in [24] of its reasons.
Fourthly, on the assumption that I am correct in my conclusion that the better characterisation of the relevant statement is that it rose no higher than a statement of the First Applicant’s intention to continue to do in the future what relevantly he had done in the past, I do not think that it was controversial that the Authority had considered what the statement entailed. Put another way, I do not think that the Applicants contended either that the Authority did not consider whether the First Applicant was at relevant risk of harm on the basis that he intended to continue to engage in his relevant past conduct or that it found that he was not so at risk.
In any event, I find that the Authority did consider whether the First Applicant would be exposed to such risks upon his return to Iran as would attract his right to protection by dint of his intention to continue in the future to engage in the relevant conduct in which he had engaged in the past: see, for example, [43], [44], [49] and 96(b) above and the Authority’s reasons at, for example, [84]. Further, the Authority found that, having regard to the evidence before it, the First Applicant would not be exposed to such risks by engaging in that conduct.[12]
[12] For example, see [49] above and the Authority's reasons at [84].
Fifthly, if, contrary to my conclusion, the better characterisation of the relevant statement was – as in effect submitted by the Applicants – that, upon his return to Iran, the First Applicant intended actively to publicise statements which were critical of the Iranian state religion, Islam, being required to observe that religion or, what the Applicants described as the Iranian theocratic regime, then, in any event, I find that the Authority considered what the statement entailed if it were so to be characterised. Moreover, on the basis of the evidence before it, I find that the Authority rejected any contention that the First Applicant harboured such an intention.
In order to assess what the Authority in fact considered for the purpose of determining this Application, it is important to bear in mind that the Application proceeds on the basis of a single ground. The sole complaint in the ground was that the Authority failed to consider the First Applicant’s statement in his statutory declaration that if returned to Iran he would “continue to openly criticize and oppose being forced to call [him]self a Muslim”. (emphasis added)
I accept the Minister’s submission that – given that there is no particularity to the relevant statement in the statutory declaration – it bears the character of an assertion, which can rise no higher than any evidence in support of it.[13]
[13] In this regard, the Minister drew my attention to AYY17 v Minister for Immigration and Border Protection [2018] FCR 503 at [18].
As I have observed above, there is nothing in the statutory declaration before or after the statement which the Applicants complain that the Authority did not consider that suggests that the First Applicant would publicise his non-religious views beyond his past conduct. The Authority considered the statutory declaration: again, for example, see [49] above and [84] of the Authority’s reasons which, the Applicants concede reproduces the language of part that declaration.
Further, at [24] of the Authority’s reasons, to which I have referred above, the Authority identified that:
“At the TPV interview, when asked why he cannot enjoy life and not publishing having no religion, the applicant responded that in a work environment, if everyone else is praying or fasting and if he did not, he would stand out.”
Again, that paragraph reflects a consideration by the Authority of evidence by the First Applicant of his intended “publication” of his religious views upon his return to Iran. When asked, in effect, how and why he would so publish his views, consistently with the material in his statutory declaration, in substance he referred to the same religiously non-conforming behaviour as that in which he had engaged in past.
Put another way, [24] supports the Minister’s submission that the Authority considered the First Applicant’s evidence of his intended expression of his religious views upon his return to Iran. Likewise, it supports the Minister’s submission that the Authority’s finding at, for example, [84], broadly to the effect that the First Applicant did not intend actively to make express public statements about his non-religious views was based on its evaluation of that evidence.
I accept the Minister’s submission that, in context, the alleged impugned statement in [25] of the Authority’s reasons should be viewed as a rejection of, or finding by the Authority of the inadequacy of evidence to support, any claim by the First Applicant to have a desire to, or real interest in, making express public statements about his non-religious views upon his return to Iran. This is consistent with the fact that the relevant statement in the statutory declaration is nude of particularity, the First Applicant gave no specific evidence of any particular acts in which he proposes to engage upon his return to Iran to express his relevant views publicly and when asked about this in his temporary protection Visa interview he referred only to the continuation of his past conduct in non-conformity with Islam. It is consistent with the use of the word “continue” in the relevant statement in his statutory declaration.
A consideration of the alleged impugned statement in [25] in the context of the whole of that paragraph further supports this position. That is, such consideration demonstrates that it is a paragraph dealing with evidence: see the extract in [34] above of the whole of that paragraph and, in particular, the italicised emphases therein.
In other words, the alleged impugned statement in [25], when read in the context of the paragraph as a whole, lends further support to the Minister’s submission that in fact – by that statement – the Authority was rejecting, on the evidence, the substance of the very matter which the Applicants, by their ground, allege that it failed to consider.
Moreover, I note in passing that there is a tension between the Applicants’ submission that the Authority failed to consider the statement in question and their oral submission that it placed weight on the substance of that statement as they submit it ought be construed.
Again, the Authority’s reasons at [84] – which are extracted in full, with relevant emphases, at [82] above – further buttress the conclusion that, on the evidence, it rejected the very matter which the Applicants complain that it failed to consider. Again, amongst other things, that paragraph provides:
I am not satisfied on the evidence that the applicant has any intention or desire to publically manifest his views about the regime, or to openly criticize or opposing being called a Muslim, and I find there is not a real chance that he will suffer harm in this regard.
I now consider the two limbs of the second argument raised orally at the hearing on behalf the Applicants.
The first such limb, was Mr Kenneally’s submission that because “the Authority has given its finding weight at paragraph 25, [this] means…it can be inferred there was some significance to the effect that the Authority believed the applicant would not publicly express his religious views in the future”.
With respect to this submission I find that, on the assumption that:
(a)the relevant statement in the First Applicant’s statutory declaration is properly to be construed as a statement of his intention, upon his return to Iran, actively to publicise statements which were critical of Islam or being required to observe that religion; and
(b)the Authority did not consider such stated intention,
then such failure would have been material to the Authority’s decision.
I do not think that the Minister seriously contended to the contrary.
However, for the reasons which I have given above, I do not consider that either such assumption is made out. Again, for reasons which I have given, even if the statement is to be construed as the Applicants contend, I have found that the Authority considered and rejected the substance of what would be entailed by the statement on such a construction.
The second such limb, was Mr Kenneally’s contention that while the evidence was that there was a degree of tolerance in Iran for the expression of non-compliant political and religious views the DFAT report indicated that there are red lines.
Such a submission is directed to the materiality of the Authority’s alleged failure to consider the matter which is the subject of the Applicant’s ground. Again, for the reasons which I have given, I have found that the Authority did in fact consider the matter in question and there is therefore no cause to consider the materiality of the alleged failure. For completeness, I point out that in [84], the Authority expressly considered the so-called “red lines” in so far as they related to the First Applicant on the basis of the evidence as it found it.
I now turn to consider the Applicants’ final oral submission which was to the effect that, had the Authority considered the relevant statement – as they submitted it ought be construed – this may have lent support to the First Applicant’s claim to the effect that his failure to have, or practise, Islamic faith would be more visible of he were to return to Iran from Australia.
Plainly, for this point – as it was put by the Applicants – to succeed it is a necessary condition that they establish their ground. For the reasons which I have identified above, they do not.
As I have observed above, the Applicants did not seek to promote a separate ground complaining that the First Applicant’s claims were not considered cumulatively. Indeed, as submitted by the Minister, the Authority stated that it had dealt with the First Applicant’s claims cumulatively: [101] of its reasons.
DISMISSAL
For the reasons which I have given above, I order that the Applicants’ Application filed 16 February 2017 be dismissed.
I certify that the preceding one hundred and twenty one (121) paragraphs are a true copy of the Reasons for Judgment of Judge Davis. Dated: 14 October 2021
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