Bhi18 v Minister for Home Affairs

[2019] FCCA 1570

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHI18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1570

Catchwords:
MIGRATION – Immigration Assessment Authority – whether the Authority complied with s 473DB of the Migration Act 1958 (Cth) – whether the Authority failed to consider the fourth applicant’s conduct in Australia – whether the Authority failed to consider a claim in the complementary protection assessment – whether the Authority erred when applying s.5J(6) of the Act – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 5H, 36, 473DB

First Applicant: BHI18

Second Applicant: BHK18

Third Applicant: BHL18

Fourth Applicant: BHM18

Fifth Applicant: BHN18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 710 of 2018

Judgment of: Judge Humphreys

Hearing date: 5 June 2019

Date of Last Submission: 5 June 2019

Delivered at: Parramatta

Delivered on: 7 June 2019

REPRESENTATION

Counsel for the Applicants: Mr Tully

Solicitors for the Applicants: Executive Legal

Solicitors for the Respondents: Ms Given, HWL Ebsworth

ORDERS

1. The application is dismissed.

2. The First, Second, Third and Fifth Applicants pay the First Respondent’s costs fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 710 of 2018

BHI18

First Applicant

BHK18

Second Applicant

BHL18

Third Applicant

BHM18

Fourth Applicant

BHN18

Fifth Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from Transcript)

Introduction

1. The applicants consist of a family unit comprising the first applicant, who is the husband of the second applicant and the father of the third, fourth and fifth applicants, consisting of two sons and a daughter (“the applicants”). They are all of Iranian nationality. The applicants arrived in Australia as unauthorised maritime arrivals on 20 May 2013.

2. On 28 September 2016, the applicants lodged an application for a Temporary Protection visa (a Protection visa). A delegate of the Minister for Immigration and Border Protection (“the Minster”) refused to grant these visas on 10 July 2017. The matter was then referred to the Immigration Assessment Authority (“the Authority”) for review. On 21 February 2018, the Authority determined to affirm the decision of the Minister. The applicants now seek judicial review of the Authority’s decision.

Immigration Assessment Authority’s Decision

1. The applicants’ claims for protection and the findings of the review are detailed in paragraphs 7 to 87 of the Authority’s decision. The claims may be summarised as follows:

   ·The first applicant fears return to Iran after declining to do business with the Republic Revolutionary Guards (“Sepah”). Since arriving in Australia, the first applicant has converted to Christianity. The first applicant fears that he will be harmed due to a pre-existing profile linking him to the People’s Mujahidin (“MEK”), Iran’s biggest and most active political opposition group, as well as his protracted stay in Australia (a western country).

   ·The second applicant has fears in relation to her family and, in particular, the first applicant’s business claim, which I have detailed above, her conversion to Christianity, including circulation of Christian material and spending a protracted time in Australia (a western country).

   ·The third applicant fears harm due to the first applicant’s connection with the business claim detailed above, having no religion and/or being an atheist, his protracted stay in Australia, and claims that Iranian authorities spy on people in Australia and know that he is a non-believer. The third applicant also claims having previously been detained for a short period of time by the Basij, which is part of the Iranian Security Apparatus.

   ·The fourth applicant fears harm due to the first applicant’s connection with the business claim, his conversion to Christianity, his protracted time in Australia and he also makes some claims that he has visited a church in Australia which may affect him.

   ·The fifth applicant has no separate claims in respect of her, however, the Authority considered claims on the basis of her membership to the family unit in relation to the business claim, her conversion to Christianity and spending a protracted time within Australia.

2. At paragraphs 18 to 20 of its decision, the Authority finds the identities of the applicants are as claimed and that they are Iranian nationals and this will be the country of return should their claims fail. In paragraph 23 of its decision, the Authority finds that there was a previous desire to depart from Iran and reside in Australia and that this well predates the April 2013 departure. Paragraphs 24 to 87 of the decision consist of a detailed discussion of the various claims in relation to each applicant and the evidence to support them.

3. A summary of these findings is set out in paragraph 88 of the Authority’s decision, which is as follows:

   Summary of findings of fact.

   Based on the evidence before me and the cumulative considerations above, I accept, in relation to all of the applicants, that:

   a)    they were born Shia Muslims.

   b)   they were non-practicing Muslims for many years at the time they departed Iran for Australia in April 2013.

   a)   they continue to be non-practicing Muslims

   c)    they were never harmed or mistreated or had any problems in Iran as non-practicing Muslims.

   d)   they will be perceived on their return to Iran as a failed asylum seeker who has spent a protracted duration in a western country.

4. At paragraph 89 of its decision, the Authority goes on to say:

   89. In relation to the first applicant, I accept also that he:

   a)    He was a successful businessman.

   b)   Was on the board of a business.

   c)    Has participated in Christian activities in Australia, attending church gatherings and getting baptised in December 2014.

   90. In relation to the second applicant, I accept she has participated in Christian activities in Australia, including attending Church gatherings and getting baptised in December 2014.

   91. In relation to the third applicant, I accept he was previously detained for a few hours in Iran.

5. At paragraph 92 of its decision, the Authority goes on to say:

   However, I do not accept that:

   a)   The first, second, fourth, or fifth applicants are genuine converts to Christianity who have renounced Islam.

   b)   The first, second, fourth or fifth applicants have any interest or desire to practice Christianity in the reasonably foreseeable future.

   c)    The first applicant had any actual or perceived profile linked to MEK or that there is a real chance of those issues resurfacing.

   d)   That the third applicant is an actual or perceived atheist or that he has renounced Islam.

   e)    That the boat claims are true.

   Specifically, I do not accept that the “business” was asked by Sepah to undertake business or that the business accepted the order. I do not accept that anyone linked to the business has been arrested, detained or disappeared, including the first applicant’s brother or other shareholders or business partners. I am not satisfied that the first applicant had or has any adverse profile with Iranian authorities, including Sepah, in respect of his links to the business. I am not satisfied that the first applicant faces a real chance of harm in Iran in respect of the business and I am not satisfied that any applicants face any real chance of harm in Iran for reasons of their own or their family connections to the business.

   Please note there that I have inserted the term “business” rather than what actually appears in the decision, to assist in retaining anonymity.

6. At paragraphs 93 to 107 of its decision, the Authority deals with an assessment of the findings against the criteria for refugee protection. This includes a consideration of relevant country information and the risk associated with being failed asylum seekers who have spent a protracted period of time in a western country. At paragraph 104 of its decision, the Authority specifically deals with the assessment of the risks associated with returning on temporary travel documents.

7. At paragraph 107 of its decision, the Authority concludes:

   The applicants do not meet the requirements of the definition of a refugee in s 5H(1). The applicants do not meet s 36(2)(a).

8. At paragraphs 108 to 114 of its decision, the Authority deals with the issue of complementary protection. Consideration was given by the Authority to the issue of returning as a convert to Christianity. The Authority concludes that, without additional activities required to attract adverse attention, such as attempting to proselytise or speaking out against the Islamic Republic, none of the applicants would be at risk of any real harm, including significant harm. Accordingly, the Authority found they do not meet the requirements of s 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”).

Grounds of Appeal

1. During the course of the hearing, two of the grounds were abandoned. I will read now the Grounds of Appeal that are relied upon.

   Ground 1

   The Authority failed to consider relevant claims, comply with

   
   

   s 473DB of the Migration Act 1958 (Cth) (the Act) or otherwise committed jurisdictional error.

   Particulars 1B

   i)The delegate’s decision record (provided to the IAA under
   s 473CB of the Act) stated that the fourth applicant had claimed to have attend church in Australia on a few occasions with his family but could not recall any details.

   ii)By failing to make relevant factual findings in its reasons for decision (at [70] - [72], [88] - [92] and [95]), the IAA thereby failed to consider whether the fourth applicant had a well-founded fear of persecution by reason of religion.

   Particulars 1C

   i)The IAA had before it information that returnees travelling on temporary travel documents would be questioned if they had done something to attract the specific attention of the Iranian authorities, and the vast majority of people questioned would be released after an hour or two (at [104]).

   ii)The delegate’s decision report (provided to the IAA under
   s 473CB of the Act) referred to all the applicants claiming to have lost their genuine Iranian passports, and the delegate accepting this fact.

   iii)The IAA failed to consider against s 36(2)(aa) of the Act whether the applicants would be returning to Iran without their genuine passports, whether this circumstance would attract the specific attention of Iranian authorities, and whether the applicants would be questioned upon their return.

   Ground 2

   The IAA erred in its application of s 5J(6) of the Act.

   Particulars

   (i) In its reasons for the decision, the IAA:

   i)   Was not satisfied the first or second applicant engaged in certain conduct in Australia otherwise then for the purpose of strengthening their refugee claims, and purported to apply s 5J(6) in relation to two of those applicants (at [95]).

   ii)      Found that the first and second applicants’ motivation was driven largely by desire to strengthen their refugee claims based exclusively on evidence provided by the second applicant (at [55]).

   iii) Found that a particular document did consider the motivations of the first and second applicants from engaging in certain conduct (at [61]).

   iv) Considered that the applicants’ previous attempts to lawfully remain or re-enter Australia established a desire to reside in Australia and to depart Iran which pre-dated the certain claimed incidents (at [23]).

   (ii)The IAA failed to considered the first applicant’s motivation for engaging in certain conduct in Australia before apply

   
   

   s 5J(6) of the Act.

Considerations

1. It is important in considering the decision of the Authority that not too keen of an eye be taken in relation to the finding of error. This was a complex decision. It involved some five different applicants and it involved a separate consideration of each of their claims. That course is reasonably open to the Authority, bearing in mind that the first applicant made claims in relation to all of the applicants, or most particularly the second applicant, that that material be taken into account.

2. It is also appropriate to note that the mere fact that a matter may not have been specifically referred to in the decision, does not necessarily mean that it was not taken into account and that an error of law has thereby been committed. The decision needs to be read holistically and it needs to be read with not too keen of an eye for error.

3. Ground 1 asserts a failure to consider claims at Particulars 1(b), as to whether the fourth applicant before the Authority, had a well-founded fear of persecution by reason of religion, that being his conversion to Christianity. The claim was considered at paragraph 92(b) of the decision, where the Authority found the first, second, fourth and fifth applicants have any interest or desire to practice Christianity in the reasonably foreseeable future. Having previously found at paragraph 92(a) of the decision, the Authority did not accept that the first, second, fourth and fifth applicants were genuine converts to Christianity who have renounced Islam.

4. At paragraph 112 of the decision, the Authority indicates that none of the applicants, in the Authority’s mind, has a profile that would give rise to harm based on any attendance at a church. The claim, in my view, fails at a factual level. The attendance at church in relation to the fourth applicant was considered along with all of the other claims. I reject it on the basis that it was considered and was rejected by the Authority for the reasons given above. In any event, in my view, no separate claim was advanced on behalf of the fourth applicant on the basis that he attended church on a number of occasions.

5. Ground 1, Particulars 1(c), asserts that the Authority failed to consider being under the complementary protection criteria, the effect of the applicants returning to Iran on temporary travel documents and that they would be questioned upon return by authorities and whether this would give rise to a risk of significant harm. These issues were considered at paragraphs 103 and 104 of the Authority’s decision where specific reference is made to the Department of Foreign Affairs and Trade (“DFAT”) information, which notes that returnees:

   …will generally only be questioned if they done something to attract the specific attention of authorities; the vast majority of people questioned will be released after an hour or two.

6. At paragraph 105 of the decision, the Authority specifically found that none of the applicants had a profile of involvement of activism against the regime. At paragraph 106 of the decision, the Authority also found that there was no real chance of harm. This is in circumstances where the Authority had also found that they were not genuine converts to Christianity. In my view, these findings were open to the Authority. They were clearly considered, therefore Ground 1 cannot be sustained.

7. Ground 2 asserts that the Authority misapplied s.5J(6) of the Act. Section 5J(1) of the Act is as follows:

   (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 the receiving country.

8. Section 5J(6) of the Act, deals with circumstances where the Authority found that the motives for engaging in the particular activity were to assist in that claim. Section 5J(6) of the Act reads as follows:

   In determining whether a person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

9. In looking at that section, it is clear that the burden of proof falls upon the applicant to satisfy the Minister that the activities engaged in were not engaged in otherwise than, for the purposes of strengthening the claim. It is not a particularly well drafted section, but it basically says that they need to satisfy the Minister that the conduct engaged in was for reasons other than to strengthen their claim.

10. In the present case, the Authority found that the Christian activities in Australia of the first and second applicants, including giving to the church and being baptised, did not meet the test under s 5J(6) of the Act and could be disregarded (see paragraph 110 of the Authority’s decision). In doing so, the Authority noted the baptism certificate and of letters of support from a number of pastors. It found the applicants attended church with some regularity between October 2014 and September 2015, attended bible study and assisted with meals.

11. The applicants claim that the Authority failed to consider the first applicant’s motivation and somehow conflated this with the second applicant. This was put to me during the course of submissions. In the Authority’s consideration, there was a clear distinction between each applicant. The Authority considered the first applicant’s claims. The Authority then considered the second applicant’s claims. The Authority then made conclusions based on that evidence and considered the totality of the evidence before it. The Authority, in paragraph 65 of its decision, accepted that the first and second applicants had been baptised, attended some church activities and maintained relationships with Iranian Australians involved in the Liberty Baptist Church. The Authority notes in paragraph 65 of its decision:

    …However, based on the cumulative considerations and concerns detailed above, I do not accept that the first or second applicant are genuine Christians.

12. At paragraph 65 of the decision, the Authority made it clear that it considered each of the applicants separately but came to the same conclusions. Further on in paragraph 65, the Authority said:

    .... I do not accept either of them have evangelised in Australia or that they have any interest in doing so in the reasonable foreseeable future, including in Iran. I do not accept that they have posted Christian information on social media or circulated Christian material in any other way. I am not satisfied they have any desire or intention to practice Christian faith currently or in the reasonably foreseeable future.

13. In my view, the Authority clearly made a distinction between the claims of the first and second applicant. That is clear from the use of the term “or” in “the first or second applicants” in the sections of the decision that I have detailed above. In my view, this ground must fail. There has been no conflation of the first and second applicant’s claims.

Conclusion

1. Accordingly, each Grounds of Appeal fails and I dismiss the application.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:  

Date:  11 September 2019