BFV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 193
•22 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BFV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 193
File number(s): MLG 582 of 2017 Judgment of: JUDGE VASTA Date of judgment: 22 September 2021 Catchwords: MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed Legislation: Migration Act 1958 (Cth): s 5J Cases cited: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Division: Division 2 General Federal Law Number of paragraphs: 41 Date of last submission/s: 22 September 2021 Date of hearing: 22 September 2021 Place: Brisbane Counsel for the Applicant: Mr Alexov Solicitor for the Applicant: Victoria Legal Aid Counsel for the Respondents: Ms Hooper Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 582 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: BFV17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
22 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The application filed 23 March 2017 as amended on 26 August 2021 be dismissed.
2.The Applicant pay the First Respondent's costs of and incidental to the proceedings fixed in the sum of $7,467.00.
3.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
NOTATION:
A.That 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: 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
(Ex tempore)JUDGE VASTA
On 27 February 2017, the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant the Applicant, BFV17, a protection visa. On 23 March 2017, the Applicant asked this Court to review that decision.
It has taken this Court quite some time to be in a position to adjudicate on this application, and, on behalf of the Court, I apologise to the Applicant for the delay. The matter, as a first court date, came before Registrar Caporale in Melbourne, some six months after the filing of the application. The Registrar made the usual directions and listed the matter for final hearing on 6 June 2019 at 10.15 am before His Honour, Judge Wilson, as His Honour then was. It would seem that after His Honour’s appointment to what is now Division 1 of this Court, that the matter, as it were, fell into a list until it was somehow somewhat rescued by the advent of the national migration docket and the migration registrars. The matter was then listed before me, and an amended application was filed on 26 August 2021.
The background to the matter is that the Applicant is a citizen of Iran. He arrived in Australia as an unauthorised maritime arrival on 31 March 2013. He made his application for a safe haven enterprise visa on 6 May 2016. He attended an interview with the delegate later that year, in 2016. The delegate refused to grant the visa on 12 December 2016. The matter was referred to the Immigration Assessment Authority following that refusal, and, as I have said, in February 2017, the IAA affirmed the decision.
The Applicant’s claims can be summarised in this way. He says that he was harassed by the Iranian authorities because they knew that he belonged to a family that had been active politically.
He said that his cousin had been an active member of the PMOI, which is the People’s Mujahedin Organisation of Iran. The Applicant said that, in 2005, he took an active part in organising and participating in solidarity gatherings against the discrimination and injustice of the government. He claimed that he was expelled from university because of these political activities, and he was accused of being connected to the PMOI himself.
He said that he was not allowed to re-enrol at another institution, and therefore he started working, and he said that he faced discrimination and his employment contract would be cancelled without any prior notice or justification. He said that, in 2009, he attended many protests, including the major ones on 18 September 2009 and 7 December 2009, which were colloquially known as the Green Movement. They were protests against the then head of the Iranian Government, Mr Ahmadinejad.
He said that, in January 2010, he was arrested and detained by police, and he was released after six months and summonsed to Court towards the beginning of 2011. He was sentenced to 15 lashes and a fine, but found that he was given, instead, 65 lashes. He said that he had to then appear before the Revolution Court on the charge of being involved with the PMOI, but the charge was not proved. He said that his father was able, he thinks, to pay money to people who had links to the judge who then decided that the charge had not been proved. He said that during his detention he was mistreated badly, and that he suffered both physically and psychologically because of that mistreatment.
He claimed that he lived in fear after his release from prison, and he did not have good sleeping or eating habits after this time. He said that it took him more than a year to recover from the mental instability he suffered as a result of this incarceration. He left Iran before the 2013 election as he feared he would be detained again and tortured.
He said that in September 2013 he was involved in a hunger strike protest in Melbourne. He said that his cousin, who was a member of the PMOI, protested against the killing of PMOI members in Iraq. He said towards the end of his hunger strike he learnt from his father that his brother had been arrested and detained for a few days. He said that the authorities told his brother to force the Applicant and others in detention with him to stop the hunger strike in Australia, and in particular that the Applicant should stop his political activities in Australia.
He said that since arriving in Australia, he had continued his political activities and had joined the Iranian Women’s Association that works closely with, and under, the PMOI.
He said that he received a Bible in Iran from his girlfriend when he was about 18 years old. He said that he became interested as he found the sayings in the Bible were more human and realistic. He said that in Australia he attends church every Sunday, and studies the Bible at home, and that he was baptised on 27 March 2016.
The IAA looked at all of those claims and, for reasons that I do not need to go to here, did not find that any of those claims were substantiated. Because they had come to that decision, the IAA did not accept that the Applicant satisfied the refugee criteria, nor did the Applicant satisfy the complementary protection criteria.
The application today has proceeded upon a very narrow point, and it is one that had to do with the matter of the Applicant’s conversion to Christianity.
The problem that the IAA had in their assessment of this particular matter was an error by, it would seem, both the secretary and then later by the IAA reviewer themselves as to what the material before the IAA actually was. The legislation mandates that the secretary must convey to the IAA all relevant material, but particularly all the material that was before the delegate.
As I had said before in my recitation of the chronology, the Applicant was interviewed by the delegate in 2016. After that interview, the delegate was given post-interview submissions. In those post-interview submissions there was attached two items; the first was a statutory declaration by a person, AV, which read, in full:
1) I became a Christian since 2013, and belong to Melbourne Bible Baptist Church, and have been baptised since July 15 2014.
2) I have been in a relationship with (the Applicant) since 16 March 2014.
3) The Applicant and I are engaged to be married.
The second item is a screenshot from a Facebook post, which is the Facebook post of AV, where she talks of being blessed because the Applicant had proposed marriage to her and made her the happiest woman.
The IAA was given submissions from the Applicant. The IAA had regard to those submissions, but did not seem to read the submissions fully in this respect. At paragraph 41 of those submissions, the Applicant’s representative said:
We further submit the delegate failed to take into consideration the significant fact that the Applicant’s partner is a Christian, and this would therefore put the Applicant at risk if returned to Iran. The Applicant’s partner has provided a statutory declaration confirming that she is a baptised Christian (sent to the Department by email on 9 December 2016 and also attached to these submissions).
As the submission to the IAA clearly states, this material was sent to the delegate before the delegate had made their decision. The IAA reviewer, I infer, must not have realised the significance of that date. If the IAA reviewer had realised the significance of that date, it would have meant that those items must therefore have been before the delegate and that the IAA reviewer should have had that material.
There has been a concession by the Minister that the secretary did not forward on to the IAA the Facebook post or the statutory declaration.
Therefore, the IAA proceeded upon an erroneous basis; that being that the statutory declaration and Facebook post were before it only, and had not been before the delegate. Believing this to be the case, this meant that the IAA, as it considered the factual matrix of how it came to receive this material, had to treat that material as if it were new material.
The IAA, in considering this material, said:
This new information predates the delegate’s decision. The Applicant’s representative did not provide any explanation as to why the new information was not and could not have been provided to the delegate prior to the delegate’s decision. Therefore, I am not satisfied there are exceptional circumstances to justify considering the new information. I am not satisfied in relation to section 473DD(a) and have not considered this new information in my assessment.
The situation is, and it has been conceded by the Minister, that this was a legal error. The IAA was obliged to consider this material because it had been before the delegate. There has been an error by the secretary in not putting the material before the IAA, and there has been an error by the IAA, albeit I think somewhat inadvertent, to have applied the section 473DD to this material.
The question then is, whether that material (that should have been considered but was not considered) material to the consideration of the IAA such that it could, not should, have led to a different conclusion.
This is not an easy question. If one goes to paragraph 31 of the reasons of the IAA, the IAA has said this:
The Applicant claims that his interest in Christianity was sparked in around 1997 when he was aged 18 and his girlfriend gave him a Bible. On the Applicant’s own evidence, in Iran he chose voluntarily not to practise a religion. He arrived in Australia in March 2013. He did not participate in Christian worship activities while held in immigration detention, but began attending church services in 2014. I accept that the Applicant was baptised in March 2016 and that his fiancée is a committed Christian. While the Applicant states that finding a caring and supporting community in church was very beneficial in helping him to cope with the torture he experienced by the Iranian authorities and the traumatic flashbacks, I have not accepted the Applicant’s claims regarding detention and mistreatment in Iran. After considering this, along with the Applicant’s lack of any religious practice in Iran, and the period of time it took to commence attending church services after arriving in Australia despite having had an awareness of Christianity since 1997, I am of the view that in Australia the Applicant engaged in Christian practices and was baptised solely for the purpose of strengthening his claim to be a refugee. I must therefore disregard this aspect of his conduct, pursuant to section 5J(6) of the Act.
At paragraph 32 the IAA said:
The submission to the IAA claims that “the Applicant’s partner is a Christian and this would therefore put the Applicant at risk if he returned to Iran”. There is no evidence to indicate that Iranian authorities are aware of the Applicant’s partner is a Christian, or even if they did, how this places the Applicant at risk of harm. I do not accept this claim.
It is not disputed that the Applicant did not make any claim connecting his Christian activities with that of his fiancée, however, the argument here is that if one looked at the chronology that the IAA has accepted, and combined it with the statutory declaration which the IAA said that they would not consider, there may be another tale that emerges from that chronology that was not the subject of a claim by the Applicant.
That claim is, that in 1997 he was given a Bible, but he did not practise any religion. He certainly did nothing else with regard to Christianity whilst in Iran. He arrived in Australia in March 2013. He did not participate in Christian worship activities while held in immigration detention. He began a relationship with the girlfriend/fiancée in March 2014. That girlfriend/fiancée had begun attending the Melbourne Bible Church in 2013. Three months after the Applicant began his relationship with the girlfriend, the girlfriend was baptised. The relationship, one can infer, simply went on until the Applicant himself was baptised in 2016 and became engaged to the girlfriend/fiancée.
If one looks at that chronology, it is submitted, by the Applicant, that it is possible to look at the timing to come to another conclusion, and that is that the Applicant’s adoption of Christian practices was done in order to further his relationship with his then girlfriend/fiancée. If it were that he did start to practise Christianity for that purpose of being “in sync” with his girlfriend, then that would, if accepted as a reasonable or proper factual matter, be sufficient to overcome s 5J(6).
It should be remembered that this particular section says, as I have already said, that the person must satisfy the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
The argument is that it is possible, it is conceivable, that if the IAA had regard to the chronology once the statutory declaration was considered, as it should have been, that the IAA may have come to a conclusion that the Applicant engaged in the conduct of practising Christianity otherwise than for the purpose of strengthening his claim to be a refugee, and that is because he wanted to be in sync with his girlfriend. If that is so, then the IAA could not have considered s 5J(6) and must have looked at the matters that the delegate had to look at in this regard in s 5J(1); that is, as the Applicant had said that he would be discriminated against in Iran for his Christianity.
Because that is a possibility, the Applicant submits that it becomes material, and therefore the legal error made by the IAA graduates then into a jurisdictional one.
In MZAPC v Minister for Immigration and Border Protection [2021] HCA 17, the majority of the Court, being the Chief Justice, Kiefel CJ, Gageler, Keane and Gleeson JJ, said this at paragraph 38:
The counterfactual question of whether the decision that was in fact made could have been different had there been compliance with the condition that was in fact breached. It cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made. Like other historical facts to be determined in other civil proceedings, the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence. And like other counterfactual questions in civil proceedings as to what could have occurred – as distinct from what would have occurred – had there been compliance with a legal obligation that was in fact breached, whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities.
At paragraph 39:
Bearing the overall onus of proving jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the Court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.
The Applicant submits that there could have been a different consideration, that being that the Applicant’s adoption of Christian practices was done for the purposes of being “in sync” with his girlfriend, but then as time went on, that adoption, albeit for non-religious reasons to begin with, then takes on that religious significance. And if that be the case, then it is a consideration that may have led to a different conclusion.
In looking at whether this could have made a difference, I have looked at what the IAA did when they looked at the complementary protection assessment. I will read paragraph 42, 43 and 44 in their entirety. The IAA said:
42. I accept that the Applicant no longer practises Shia Islam. DFAT considers it unlikely that individuals will be prosecuted on charges of apostasy and has noted lack of religious observance does not appear to expose individuals to harm from government authorities or the wider community in Iran. In light of this, I do not consider the Applicant faces a real risk of harm in Iran as a result of his lack of religious observance.
43. I have found that in Australia the Applicant engaged in Christian activity and was baptised solely for the purpose of strengthening his claim to be a refugee. While he may have attended church services and been baptised in Australia, there is no evidence to indicate that Iranian authorities are aware of or would become aware of this. Country information with regard to the situation of converts who return to Iran after being baptised abroad indicates that they may return to Iran quietly and not encounter any problems by acting discretely and not doing anything to invoke the authorities’ attention. Engaging in evangelical activity or active manifestation of one’s Christian identity in the public sphere will risk negative attention from the authorities as Iranian authorities perceive evangelistic networks as a type of intelligence network and would rather pursue evangelisers and proselytisers than individual converts. This is supported by information from DFAT that Iranians who convert to Christianity outside Iran could face adverse attention upon their return if they join a house church, but generally speaking, the mere fact of conversion and worship in a house church would be insufficient to attract official attention. Additional activities are generally required, such as an attempt to proselytise or to otherwise speak out against the principles of the Islamic republic, and for these activities to become known to Iranian officials.
44. I do not accept that the Applicant’s practice of Christianity in Australia is genuine, and do not accept that he would continue these activities on return to Iran. I have found that when the Applicant left Iran he did not have an activist or dissident profile to the extent he would have been of interest to Iranian authorities. On the available evidence, I find the Applicant does not find a real risk of harm in Iran on the basis of his Christian activities.
45. The submission to the IAA claims that the Applicant’s partner is a Christian and this would therefore put the Applicant at risk if returned to Iran. There is no evidence to indicate that the Iranian authorities are aware that the Applicant’s partner is a Christian, or even if they did, how this places the Applicant at risk of harm. I do not accept the Applicant faces a real risk of harm on this basis.
The Respondent submits to me that these paragraphs show that even if it were that there is a possibility that the IAA could have considered that the Applicant’s Christian activities were sparked by a desire to be “in sync” with the girlfriend, and therefore that s 5J(6) did not apply, the result would still have been that the IAA did not accept that the Applicant had made a genuine conversion to Christianity, and therefore the criteria in s 5J(1) would still have not been met, which means that the legal error remains a legal error because it was not material.
The Applicant submits that the first line of paragraph 43 is instructive because it says “I have found that in Australia the Applicant engaged in Christian activity and was baptised solely for the purpose of strengthening his claim to be a refugee”. The Applicant further submits that having come to that conclusion, everything else that is said then in the rest of paragraphs 43, 44 and 45 begins with a conclusion that may not have been made if there had been consideration of the material that had been given to the delegate.
It seems to me, however, that when one looks at what is said in paragraphs 43, 44 and 45, that there has been an acceptance of the fact that the Applicant’s fiancée is a, in effect, committed Christian, as was said earlier in the reasons. The conclusion, that the IAA did not accept that the practice of Christianity was genuine, was a consideration that what the Applicant had presented to the IAA was insufficient for the IAA to accept that this was a genuine conversion.
For that reason, I accept the submissions of the Minister that the legal error, in not considering that material, was not “material” as that concept is defined in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.
This means that the legal error did not graduate to being a jurisdictional error.
I therefore dismiss the application with costs in the sum of $7,467. And I will amend the name of the Minister as well.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 5 November 2021
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