BDY18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 668
Federal Circuit and Family Court of Australia
(DIVISION 2)
BDY18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 668
File number(s): PEG 173 of 2020 Judgment of: JUDGE VASTA Date of judgment: 19 July 2022 Catchwords: MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed Legislation: Migration Act 1958 (Cth): s 359AA, s 424AA, s 473DD, s 473DE Division: Division 2 General Federal Law Number of paragraphs: 46 Date of last submission/s: 19 July 2022 Date of hearing: 19 July 2022 Place: Perth Counsel for the Applicants: Ms Moore Counsel for the First Respondent: Ms Taggart Solicitor for the First Respondent: Australian Government Solicitor ORDERS
PEG 173 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BDY18
First Applicant
BDZ18
Second Applicant
BEB18 (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
19 JULY 2022
THE COURT ORDERS THAT:
1.Leave is granted for BDY18 to act as litigation guardian of BEB18 and BEA18 as from 15 June 2020.
2.The application filed on 15 June 2020 as amended on 18 July 2022 be dismissed.
3.The First and Second Applicants pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,853.
4.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
THE COURT NOTES THAT:
A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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
(Ex Tempore)JUDGE VASTA
On 12 May 2020, the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant the Applicants, BDY18, BDZ18, BEB18 and BEA18, protection visas. The Applicants asked this Court to review that decision on 15 June 2020. Earlier today, I made an order that granted the First Applicant, BDY18, the ability to be the litigation guardian of BEB18 and BEA18 who are the children of him and his wife, BDZ18.
The matter, having been filed on 15 June 2020, went before Registrar Carlton on 9 July 2020. The Registrar listed the matter for a final hearing on 21 June 2021 before a Judge in this Court. That date was, in the end, not able to be accommodated and the matter went back into the national migration docket, hopefully to have been done by a Judge in Perth. It ended up coming before me sitting in Perth today, 19 July 2022.
The Court must apologise for the delay, albeit a much shorter delay than has been the case with many other matters. In the end, the delay was somewhat advantageous for the Applicant, because the Applicant ended up being able to re‑cast the application and file that application yesterday, and, notwithstanding that aspect, because of what has happened so far, the Court and the Minister were able to have the matter heard today on all matters; the one that was before the Court previously and the new ground.
The background of the matter is, the First and Second Applicant are married, the Third Applicant is their child who had been born in Iran, and the Fourth Applicant is their child who has been born in Australia, but who has Iranian citizenship. The Applicants were unauthorised maritime arrivals and came to Australia in 2013. The claims of the First Applicant were the claims of all of the Applicants. The Second Applicant did have a claim of her own, which I will speak about very quickly.
The background to the claims for all of them, which are the claims of the First Applicant, are these:
·The Applicant says that he is a citizen of Iran, but he is an Ismaili Muslim, which is a sect of Shia. Because of the membership of this very much minority religion, the Applicant said that he experienced social discrimination on this basis.
·The family had lived in a village and ended up moving to a larger city, which I will not mention in these matters, because it was easier to hide and escape discrimination in a bigger city.
·He said, notwithstanding that, he was denied permanent employment and its associated rights at the Cultural and Heritage Organisation and was never really fully employed, but only offered contracts. He said that he was not allowed to disclose his religion to others at work, and he was forced to practise the official religion and was expected to end up changing his religion to the main Shia religion.
·He said that he came to the attention of security because of his religion. He was called in for questioning over an eight month period. He said that in late February 2012, he was fired, and he was told his contract at the ministry would not be renewed when it expired. He said that when he finished working at the Cultural and Heritage Organisation, he was then arrested by the Ettelaat, which is the Ministry of Information and Security.
·He said that he was detained by the Ettelaat for, on one view, 45 days; another view, three months, and was regularly interrogated in a harsh manner about his Ismaili religion and religious practices and any foreign support of this.
·He said he was chastised for refusing to support the Shia faith. He said he had a friend who came and vouched for him and signed him out, and he was released then with a warning that he would be notified to attend at Court.
·He said, four months later, he received a letter to go to Court, and at Court he was again arrested and detained by the Ettelaat, this time for about 40 days. He said when he was finally released on bail, he was told he had a Court case, so he retained a lawyer. He said he was afraid of being imprisoned and so he decided to leave Iran before he could be placed on a blacklist.
·He said, sometime after he left, at the end of 2014, he was convicted and sentenced to 15 years imprisonment on three charges. His lawyer appealed that decision. He said that if he is returned to Iran, he will be on a blacklist and arrested by the Ettelaat at the airport and he would be tortured and imprisoned upon being sentenced, and he said that people who flee Iran are treated with great suspicion and his departure would confirm their view of him as a dissident.
·The Second Applicant also relied on those claims, but also said that since she had come to Australia, she had converted to Christianity and had been baptised and confirmed in the Church of Jesus Christ of Latter‑day Saints, or, more commonly known, the Mormons.
·She said she was introduced to the Mormons because they knocked on her door. She feels connected to the Mormon religion and attends their services every Sunday and sometimes even helps clean the church. If she returned to Iran, apostasy and conversion to Christianity are crimes in Iran and she claims that she would be harmed or killed.
The IAA looked at all of these claims in a very thorough way. There was a suggestion that the first two Applicants had been political dissidents, however the Tribunal did not accept that that was so. The Tribunal looked at the fact that the First Applicant was an Ismaili Muslim, and had regard to quite a deal of country information. It was difficult to find any information that supported a claim that Ismaili Muslims were systematically targeted for mistreatment or were officially discriminated against.
The IAA ended up accepting that there was some social restrictiveness about the Applicant practising his religion, but found that the practice of praying twice a day, in the morning and in the evening, has never been prevented, and that whilst they may not be allowed in their own mosque, they are allowed to pray in homes.
The IAA accepted that the country information did not support any systematic purging of Ismailis from employment, or that there was any other form of government discrimination or persecution.
The IAA noted that the fact of his religion did not interfere with the First Applicant completing high school education, gaining a form of tertiary qualifications and a university diploma, and the fact that he was able to work and support himself and his family before they left Iran. The IAA noted that the Applicant had 10 years employment with the Culture and Heritage Department.
The IAA considered a claim that the Applicant had made about coming to the attention of the authorities because of an incident that occurred in 2009 when he drove, or was part of a group that did some form of pilgrimage, to Syria to see the Aga Khan, who was the leader of the Ismailis, and another claim that the Applicant made that he came to the attention of authorities because he declined to travel to Tehran from the city in which he was living for the anniversary of the Ayatollah Khomeni.
The IAA noted that these two claims were in contrast to each other; one having been given in the SHEV documentation, and the other being given at the SHEV interview, with the other reason for coming to the attention of authorities not mentioned in the other form of giving information to the Department. The IAA did not accept that either of those matters caused the Applicant to run afoul of the authorities.
The main claim of the Applicant came down to what had happened from his arrest by the Ettelaat. In this respect, the Applicant was also quite inconsistent with the tales that he told the delegate, and the IAA noted those inconsistencies.
To bolster his credibility on this tale, the Applicant gave to the IAA new information, which were Court documents that were untranslated, and later he gave the IAA translations of the documents from Persian into English that had been compiled by a NAATI certified interpreter. The IAA considered those documents, but, in the end, were not satisfied. At paragraph 44 of the reasons, the IAA said:
I do not accept the applicant’s claims. For reasons noted above, I am not satisfied of the authenticity of the purported court documents provided. I do not consider them to be corroborative of the applicant’s claims and I place no weight on them. I similarly place no weight on the purported power of attorney as lending any support to the applicant’s claims or to the court documents, noting that it was not dated at all, the applicant’s address on the document is different to the address given as his residential address on the SHEV application and Entry interview, and the lawyer’s address on the power of attorney is different to the address listed on the purported court documents. I do not accept that the applicant was arrested and detained by Etelaat as claimed or that he was subject of any court proceedings or has any sentence of imprisonment against him in Iran. I do not accept that the applicant came to adverse attention and questioning at work for failing to attend an anniversary in Tehran or as any consequence of a bus crash in Syria or for any reason of his Ismaili religion. I do not accept that he was under any suspicion at work regarding his religion or that he was fired for any such reason claimed. I do not accept that Applicant 1 has any profile of adverse interest or concern to any authorities in Iran or that he is or would be on any blacklist with Iranian authorities.
With regard to the Second Applicant, the IAA did not accept that her conversion was a genuine one, but rather that the Second Applicant had to convince him that the conversion was not done to bolster the claims for protection and this, the IAA said, the Second Applicant had failed to do.
For these reasons, the IAA found that neither the First Applicant, nor the Second Applicant met the requirements for the refugee criteria.
The IAA then looked at the complementary criteria and assessed what life would be like going back to Iran as failed asylum seekers of the Ismaili faith, and how things may be for the Third and Fourth Applicants as well. In the end, the IAA found that none of the four Applicants met the criteria for complementary protection. For this reason, the IAA affirmed the decision of the delegate.
The grounds of this application are now two grounds. The first ground, which had been numbered 1A is as follows:
1A.The Immigration Assessment Authority took into account irrelevant information at paragraph [41] which formed part of the reason for affirming a fast track reviewable decision.
Particulars
The irrelevant information included information relating to the three original court orders with a draft date of 10 August 2012, 11 March 2014 and 11 March 2014, which was not contained on the face of the document or its corresponding translations produced by the applicant.
1.The Immigration Assessment Authority failed to provide the applicants with the opportunity to give comments on new information considered by the Immigration Assessment Authority which formed part of the reason for affirming the fast track reviewable decision pursuant to s473DE of the Migration Act 1958…
b. An English translation (not provided by the Applicants) of the three original court orders with a “draft date” of 10 August 2012, 11 March 2014 and 11 March 2014.
To understand these grounds, one has to go back to the claims that were being made by the Applicant. What the Applicant was saying is that he had been, in effect, fired from his job in 2012 and it was then that he was picked up by the Ettelaat. He said that he was detained for either three months, or on another occasion he said 45 days, and he had been tortured during this time.
He was then allowed to leave. He was arrested a second time following the receipt of the Court attendance notice and this time he was detained for about 40 days. He was then told that he needed to go to Court.
He decided then to leave Iran. He was able to leave Iran legally on his own passport and he then made it to a country where he was able then to have people smugglers bring him to Australia.
The Applicant arrived in Australia in 2013 and had, as it were, an entry interview. He said, in that interview, that he was leaving because he was going to be sentenced to prison for 15 years because of everything that had happened to him with the Ettelaat, in effect, for him practising his religion.
The court documents that were given to the IAA are reproduced at CB 309, 310 and 311. The English translations unfortunately did not make it into the Court Book, but are found as annexures to the affidavit of Marie Therese Azar, sworn 24 September 2020. I need to read the court orders into the record so that there is some context. However, it is instructive to be able to look at the original documentation in pages 309, 310 and 311 to have an understanding.
The translation reads,
Court order
Emblem of the Islamic Republic of Iran, Ministry of Justice
Khorasan Razavi Court,
Court of Appeal- Branch 50.
Order No: [Omitted]
File No: [Omitted]
Branch Archive No: [Omitted]
Draft Date: 10.Aug.2012
File No [Omitted] of branch 53 of M[Omitted] criminal court, final decision [omitted]
Plaintiff:
M [Omitted] office of Culture & Heritage Organization, represented by [Omitted]
Defendant: [The Applicant] represented by [Omitted] residing at [Omitted]
Charge: Sacrilege to Islamic values and Shia’ religion, insult the supreme leader and state officials, promoting the Esmaeili sect.
Court Order
In relation to the charges against [the applicant]… temporarily arrested until further notice from 9.May.2012, on the basis of insulting the supreme leader and high ranking state officials, and sacrilege to Islamic values and religious beliefs, and upon complaint of the [Name omitted] Office of Culture and Heritage Organisation,[omitted] the employee of the plaintiff. As his religion is of “Esmaeili Sect”, he was not attending group prayers and religious ceremonies, while promoting his beliefs through defamatory remarks against Shia religion, and ridiculing the supreme leader and making unfair and insulting political accusations against state officials. According the reports by the plaintiff’s representative and the security officer and undercover investigation conducted with the staff of the plaintiff’s organization and the complaint issued by the court, and the defense by the attorney’s representative and implicit confessions by the defendant to some religious arguments, although any sacrilege to the Islamic values or any insult to the supreme leader and state officials was denied, and as the defendant’s lawyer defense were not satisfactory, the conviction is definite.
According, the articles 500 and 513 of the Islamic punishment, the defendant is sentenced to three years conditional imprisonment for promoting against the regime, and sentenced to execution, for sacrilege to Islamic characters and values. However, considering the defendant’s circumstances, discounted to eighteen years conditional imprisonment, and sentenced to two years imprisonment for insulting the supreme leader.
The order is issued in presence and can be appealed.
Branch 53, M Criminal Courts
Judge Mohammed Husseini.
The next court order has a different order number and a different file number and a different branch archive number, and the draft date is 11 March 2014. The court order is:
In relation to the appeal lodged by [the applicant], represented by [omitted], upon the initial complaint by M[Omitted] office of culture and heritage organization, and the order number [omitted] issued by M criminal court Branch 53, his conviction of twenty three years imprisonment for his convictions, according to the evidence on file and statements provided by both parties in the initial court and this court, and based on the reasons provided by the initial court, the appeal is not justifiable and hence invalid.
Therefore, based on article 455 of criminal courts, the appeal is declined and the initial order stands. Nevertheless, as the defendant is regretful, and due to his clean criminal history, according to items 22, 25 and 459 of the Islamic punishment law, the punishment is reduced from 23 years to a total of 15 years.
The issued order is definite.
Branch 50, M Appeal Courts,
Judge Ahmad Mohammed Nik & Mohsen bayat Tork.
The third document seems to be a summary, still headed, “Court order”, and has the same order number and file number as the last matter, but with a different branch archive number, and it is also dated 11 March 2014, and refers to the file number of the court of appeal and the final decision number which is the same as the order number.
The appeal applicant is described as the Applicant here. The appealed party is the Office of Culture and Heritage Organisation. The appealed order is an order with a totally different order number, dated 16 February 2013, issued by Branch 53 of the M Criminal Court, and the processing court is Branch 50 of the M Appeal Courts, and the branch committee being the Judge Ahmad Mohammed Nik and a consultant, Mohsen bayat Tork. The case summary is written:
The plaintiff, the cultural and heritage organization, lodged a complaint for Sacrilege to Islamic values and Shia’ religion, insult to the supreme leader and state officials and promoting the Esmaeili sect. The defendant was sentenced to 23 years imprisonment in the initial court which was appealed by the defendant and his lawyer, arguing that the “Esmaeili Sect” is a branch of Shia religion, and the plaintiff’s employment department had been aware, and the defendant only responded to questions asked by a fellow employee and did not have any specific intention to promote his beliefs. He did not have anything to do with the charge of “insulting the supreme leader” which was thoroughly explained in a statement submitted to the court by their lawyer.
The Tribunal said this about the matter, at paragraph 40:
Despite some general accord with his claims of being represented by this lawyer and being sentenced to 15 years, there are material inconsistencies in these documents; both with the applicant’s claims and evidence and internally as between the documents themselves, which cause me considerable concern about their authenticity. The sentencing document assertion of “arrest from 9 May 2012 until further notice”, does not accord with any of the dates or timescale in the applicant’s claims, as set out above. Moreover it indicates that he had not been released on bail, contrary to his evidence. The sentences imposed ostensibly under Articles 500 and 513 do not appear to accord with those statutory offence provisions.23 Antiregime propaganda or opposition support under Article 500 carries a maximum penalty of one year imprisonment, yet the applicant was purportedly sentenced to three years on this charge. Insulting sacred values of Islam carries a sentence range of one to five years if not otherwise executed, under Article 513, yet the applicant was sentenced to 18 years. And the Article (514) relevant to Insulting the Imam Khoemeini or the Supreme Leader was not mentioned at all in the sentence document, which omission I find difficult to accept in a formal criminal court sentence order, if he had indeed been charged / convicted of such. I also find it difficult to believe that a criminal court sentence judgment by the Branch 53 Mashhad Criminal Court would be issued on a Court of Appeal – Branch 50 letter-head/form, as this document was described to be.
41. Moreover, contrary to the applicant’s claims of sentencing after he left Iran, and appeal at the end of 2014, the sentence documents indicated that his court sentence was dated 10 August 2012, and the appeal documents were both dated 11 March 2014. Although these were described as “draft date” on the translation, the documents were also expressed as purporting to be the final decision and bear a purported judge’s signature. The untranslated handwritten date next to the signatures each appears identical to the year and month of their respective dates on the Iranian documents translated as draft dates, with only the day differing. Moreover, I find it difficult to accept that a printed final court order of sentence and of appeal referring to evidence and defence presented for hearing before sentence and referring to defence argument presented on appeal, as well as to finding to mitigation upon which the respective signed judgments of sentence then appeal were made, would be written before any such matters were heard in the court proceedings.
The IAA made other criticisms of the documents. The grounds of this application really revolve around paragraph 41. The submission is that the IAA has looked at both the translation and the untranslated document. It has concluded that the part of the document that gives the draft date, both in word form and giving the actual date, could be discerned on the translated document. The submission that the IAA has then looked at what they have discerned as being the draft date and compared it to another set of writing underneath the purported judge’s signature and made conclusions from that, was not open.
The submission of the Applicant is that if one looks at the translated document, it says that it purports to be signed by the judge, but does not purport to have any date underneath the signature.
Therefore, the Applicant submits that it was simply not open for the IAA to come to the conclusion that they could discern, in the untranslated document, what part of it referred to the date, and distinctly the year and the month, and look at another part of the document that ended up not being part of any translation, and to give an opinion or a conclusion that this corroborated that the document was purported to be from a particular month and year.
The importance of that is, that if the document did purport to be of that month and year, then the Applicant’s story that he left Iran in 2013 and was able to come to Australia (and in his entry interview was able to tell the Department that he was facing 15 years imprisonment), does not turn out to be true, because if this were correct, the Applicant was certainly in prison from August 2012, and even earlier according to the document, because he had been in effect arrested earlier in 2012. If these dates on this document were correct, then the Applicant was not in a position to have left Iran legally and come to Australia.
It also would show that in 2013, if this document were correct, he had been sentenced originally to execution, but that the sentence had been commuted to 23 years in prison, yet, in 2013 at his entry interview, he said he was facing 15 years imprisonment, and then the next documents dated 11 March 2014 show that the sentence was reduced from 23 years to 15 years.
The Applicant says that, on the face of the untranslated document itself, it is simply not discernible for the IAA to come to that conclusion. However, it seems to me that on a common sense view of the document, that such a conclusion was open.
One must remember that the Persian documents are written from right to left, rather than left to right as is done in the western world. The fourth line down in the original document, before a large horizontal line that crosses the whole of the page, shows that there is what appears to be four numerical characters, a slash, another two numerical characters, and then another slash, and then another character. When one looks at such a configuration, it certainly, using common sense and worldly experience, resembles how a date would be written.
When one looks at what is contained in the three lines above it, it is easy to then look at the translated document and correlate that the first line correlates to the order number, the next line correlates to the file number, the next line correlates to the branch number, and then the final line correlates to the draft date.
The IAA’s observation that the numerical figures – four figures, slash, two figures, slash, other characters – correlate to year, month and day, is a conclusion that is reasonably open. In making that conclusion, (that what is seen on the untranslated document can be seen as the year, a slash, the month, slash, and then the day), it is easy to then look at the symbols that are under the signature in the untranslated document. Those symbols, the four symbols – the slash and then the next two symbols and the slash – do match. The symbols after the second slash do not match.
This is exactly what the IAA has said in paragraph 41 when it has said the untranslated handwritten date next to the signatures each appears identical to the year and month of their respective dates on the Iranian documents translated as draft dates with only the day differing. The Applicant submits that this finding was simply not open and, therefore, it was irrelevant. It seems to me that the conclusion that was arrived at by the IAA was one that was open on the evidence. For this reason, ground 1A fails.
The Applicant submits that the methodology of the IAA, in discerning that the figures under the signature of the judge correlate to a date, is not borne out by the translated document. The translated document does not refer to a date other than the date at the top of the document which is designated as draft date. The only things translated after the signature would seem to correlate to Persian writing that appears underneath. There is no date given there.
The Applicant submits that this means that the IAA must have used another translation to come to the conclusion that these symbols under the signature were a date. In using another translation, the Applicant submits that the IAA has used new information and has used that information as part of the reasoning it had for affirming the decision.
If this is so, then there has been a breach of s 473DE that states that any new information that would be the reason or part of the reason for affirming the decision must be given to the Applicant for comment; in effect an analogous section to s 424AA and s 359AA.
The Applicant says that the fact that the IAA talks about the untranslated handwritten date next to the signatures is something that is not open to be concluded on the evidence and, even that finding, is new information and that new information needed to be given to the Applicant for comment. The Applicant submits whichever way one looks at it, there has been a breach of s 473DE.
I cannot agree with this submission. It seems to me that, looking at the untranslated document, if one accepts that there is a date written at the top of the document, the same configuration underneath the signature, especially with the slashes, would also mean that there is a date there. The fact that it does not appear on the translated document, to my mind, is of no moment.
There is simply no evidence that there was any other information – other than that that is before me now – before the IAA. It, as I said previously, is simply a conclusion that was open on the facts before the IAA. For this reason, the first aspect as to a breach of s 473DE has not been made out. The corollary of that, (that there was some breach of s 473DD in that the new information had not been said by the IAA to constitute exceptional circumstances), is not made out simply because there is no new information.
As to whether the description in paragraph 41 of the untranslated handwritten date constitutes new information, I am of the view that it does not. It is simply a conclusion that is made on the face of the document and that was a document that was given to the IAA by the Applicant himself.
Simply because the Applicant gives a document to the IAA, does not mean that the IAA necessarily has to tell the Applicant what it is that the IAA thinks of that document. It is a matter that the Applicant has put before the IAA to convince the IAA of the veracity of the claims. What the IAA makes of that document is a matter of fact-finding for the IAA itself. There has been no breach of s 473DE.
For that reason, ground one also fails.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 1 November 2022
SCHEDULE OF PARTIES
PEG 173 of 2020 Applicants
Fourth Applicant:
BEA18
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0
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