Ari18 v Minister for Home Affairs

[2019] FCCA 1338

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARI18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1338

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to give the applicant new information under s 473DE of the Act – applicant alleged that the failure of the Authority to give him an audio recording of his arrival interview was a breach of s 473DE – whether the Tribunal was legally unreasonable in failing to invite the applicant to give new information regarding his baptism – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473DD, 473DE

Cases cited:

DTK17 v the Minister for Immigration and Border Protection [2018] FCAFC 170

Applicant: ARI18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 388 of 2018

Judgment of: Judge Humphreys

Hearing date: 20 May 2019

Date of Last Submission: 20 May 2019

Delivered at: Parramatta

Delivered on: 20 May 2019

REPRESENTATION

Counsel for the Applicant: Mr R Chia

Solicitors for the Applicant: Direct Access

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7000.00.

DATE OF ORDERS: 20 May 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 388 of 2018

ARI18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR EXTEMPORE JUDGMENT

(Revised from transcript)

Introduction

1. The applicant is an Iranian national. The applicant seeks judicial review of an Immigration Assessment Authority (“the Authority”) decision dated 17 January 2018, that affirmed a decision of a delegate of the Minister not to grant him a Safe Haven Enterprise visa.

Background

1. On 19 September 2016, the applicant lodged an application for a Safe Haven Enterprise visa. The applicant claims fear of harm on a number of grounds, including an altercation with the husband of a former girlfriend. The husband is a member of the Basij, which is part of the Iranian Revolutionary Guard. The applicant also claims protection based on his conversion to Christianity within Australia and a number of comments he made about Islam whilst present in Iran.

2. The applicant’s claims can be summarised as follows. These are drawn from paragraph 8 of the Authority’s decision.

   a)The applicant was born into a Shia Muslim family. The applicant states that he dislikes Islam.

   b)The applicant has experienced a number of negative interactions with the Basij.

   c)On 6 April 2013, the applicant had an altercation with a man named AB, who is a member of the Basij and the husband of a former girlfriend of the applicant. The applicant’s mother told him that AB had subsequently appeared at their home, made threats and had set a fire on the door of their house, which I am advised is a sign of adultery in Iran.

   d)The applicant also made some negative comments about religion whilst at university. Some of the applicant’s classmates were religious and, he claims, members of the Basij. The applicant was subsequently requested to attend a meeting with the Herasat, who are representatives of the Ministry of Intelligence and State Security embedded in offices in organisations, including universities, in Iran.

   e)The applicant states that he left Iran because he felt that he was no longer safe. Post-leaving Iran and subsequent to his arrival in Australia, the applicant has had his ears and eyebrows pierced and has a tattoo on one arm. The applicant claims that these are perceived to be against Islamic religious rules.

   f)The applicant fears harm due to his un-Islamic views, his subsequent conversion to Christianity and also by being a failed asylum seeker in Australia.

The Authority’s Decision

1. At paragraph 9 of the Authority’s decision, it was accepted that the applicant was the person he claimed to be and that he had Iranian nationality.

2. At paragraph 12, the Authority accepted that the applicant had been questioned by the Basij on a number of occasions, but did not accept that he was detained overnight or mistreated. The basis for that, to my mind, is not clear.

3. At paragraphs 13 and 14, the Authority accepted that the applicant had an interaction with AB, but found that his claims of fear were somewhat exaggerated.

4. At paragraphs 17 to 21, the Authority rejected the claim that the Herasat were aware of the applicant’s comments made about religion at the university. The Authority found that the claims were not credible. While finding a common thread of un-Islamic comments, the Authority found they were not consistent in content. It further found that the making of un-Islamic comments in front of known Basij members whilst at university was implausible.

5. At paragraph 22, the Authority accepts that the applicant does not believe in or practice Islam. At paragraphs 22 to 26, the Authority dealt with the applicant’s interactions with Christian religious groups post-his arrival in Australia. The Authority accepted that the applicant had interacted with various groups. However, at paragraph 34, the Authority did not accept that the applicant’s moves towards baptism was determinative of his religious beliefs. The Authority made the following comment in relation to whether or not the applicant was baptised:

   And in any event, I do not view baptism as determinative of the genuineness of the applicant’s beliefs.

6. At paragraph 37, the Authority accepted that the applicant has a tattoo but did not accept it as being identifiably anti-religious, anti-Islamic, or atheist in content.

7. At paragraphs 40 to 41, the Authority did not accept that AB would harm the applicant upon his return to Iran, noting that their previous interaction occurred five years ago. It is suggested that it was speculative that AB would still be of concern or interested in the applicant, let alone want to seriously harm him after a period of five years.

8. At paragraph 42, the Authority did not accept that the applicant had genuinely converted to Christianity. The Authority found that the prospect of the applicant being imputed as a Christian upon his return to Iran was remote. At paragraph 44, the Authority accepts that the applicant does not believe in Islam. The Authority notes that apostasy, that is, non-belief in Islam, is a crime in Iran, and the applicant would be required to hide the fact that he was not a believer in Islam. At paragraph 45, the Authority looked at various country information and suggested that perceived apostates only come to the attention of the authorities by manifesting their new faith and/or publicising their ideas.

9. At paragraph 46, the Authority accepts that tattooing is illegal in Iran. At paragraph 49, interestingly, the Authority accepts that the applicant may face harassment, brief periods of arrest, questioning, fines and warnings in relation to his appearance and conduct, yet surprisingly concluded that this does not amount to serious harm. The Authority was not satisfied that the applicant received harsh treatment and was not satisfied there was a real chance of harm.

10. The Authority then concluded that there was no risk of serious harm under either s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”), or that complimentary protection requirements existed under s 36(2)(aa) of the Act.

The Grounds of Appeal

1. Two appeal grounds were filed. The first ground is that the Authority failed to give the applicant new information under s 473DE of the Act, being the audio of his entry interview on 1 and 4 July 2013. The second ground can be summarised as a failure to invite the applicant to give new information regarding his baptism, and that, as a result, this was legally unreasonable.

Consideration of Ground 1

1. The applicant argues a breach of s 473DE of the Act, in that the Authority considered an audio recording of the applicant’s arrival interview but did not provide him with a copy, which the applicant suggests was required. It was put to me that the audio interview was not available to the delegate but was available to the Authority and it was suggested that the audio arrival was not:

   … before the Minister for the purposes of section 473DC(1) of the Act.

2. The applicant conceded that the Court would need to be satisfied as a matter of fact that the audio interview was not physically before the delegate and reference is made there to the case of DTK17 v the Minister for Immigration and Border Protection [2018] FCAFC 170 at paragraph 38. It was submitted by the applicant that the only file that was before the Authority was the file BCC2016/1296128, which was opened in 2016 and which the first respondent had conceded did not contain the 2013 recording.

3. In my view, the claim is speculative at best and, indeed, there is in fact evidence before me that this was not the case. Contained in the affidavit of Jennifer Louise Strugnall, affirmed on 13 May 2019, are documents including, at page 6 of that affidavit, material that was provided to the delegate, which includes the following:

   Entry interview (transcript and audio file) plus those of any dependent applicants.

   There were no dependent applicants in this matter. I find as a matter of fact that the audio file was available to the original delegate and that it was subsequently made available to the Authority.

4. I am satisfied that the Authority most likely listened to it, but I am not satisfied that it was new information which enlivened the provisions to require the applicant to be given the opportunity to comment on it. In any event, it was information that was already known to the applicant because he had participated in the interview.

5. I am satisfied that no jurisdictional error is revealed in relation to ground 1.

Consideration of Ground 2

1. Ground 2 asserts legal unreasonableness. It asserts that the Authority failed to exercise its discretion by not inviting the applicant to give new information regarding his baptism. The fact that the applicant was moving towards baptism was information that had been provided by the applicant to the Authority. The fact is, the applicant’s baptismal certificate was in his possession at the time of the Authority’s decision. The claim that the applicant was now baptised was found to be new information and was considered. However, the fact that the applicant did not provide any documentary information confirming his baptism was a matter for him. The applicant made the assertion that he may have been poorly advised and that maybe he should have provided the baptismal certificate to assist him in his claim. However, the fact is he did not.

2. It has been put to me by the first respondent that, in any event, even if I was to find that the applicant should have been given the opportunity to do so, it would need to be a material issue. I accept that the fact is, the Authority came to a view that in any event, and I quote the Authority here, it did:

   … not view baptism as determinative of the genuineness of his beliefs.

3. The first respondent submitted at paragraph 35 that the Authority was not satisfied that the applicant had a:

   … genuine belief in and commitment to Christianity or that he has genuinely converted to that religion.

4. I am not satisfied, firstly, that there was a requirement for the Authority to seek that information, that is, the applicant’s baptismal certificate. s 473DD of the Act indicates that

   The Immigration Assessment Authority must not consider any new information unless:

   (a) the Authority is satisfied there are exceptional circumstances to justify considering the new information;

   Under s 473DD(b)(i) the Authority may consider new information if the new information:

   …was not and could not have been provided to the Minister before the Minister made the decision under section 65…

   It is clear that the applicant’s baptismal certificate could not have been provided to the delegate, but it was open to him to provide that at any point of time to the Authority. The fact is the applicant failed to do so.

5. I do not consider that there was a requirement for the Authority to actually go out and request that new information. That is clearly not the scheme of the Act. The scheme is such that the information relied upon is that which was before the delegate. Any new information can be considered in exceptional circumstances under s 473DD of the Act. In this case, the material that the applicant was putting forward concerning baptism was considered and the fact is the Authority did not consider that information as determinative. In fact, the Authority found against the applicant in respect of his claim that he had genuinely converted to Christianity. I do not see that it would have made any difference even if the applicant had provided the baptismal certificate, that it would have changed the mind of the Authority.

6. In these circumstances, I am satisfied that providing the baptismal certificate would have made no difference to the overall decision and it is not material to the outcome.

7. No error in terms of legal unreasonableness has been made out. Ground 2 cannot be sustained.

Conclusion

1. In these circumstances, the application must be dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Date: 6 June 2019